COURT OF APPEAL FOR ONTARIO

RE: ROYAL BANK OF CANADA (Respondent) –and– 875576 ONTARIO LIMITED, KEITH VANDERBEKE, and DIANE MIFFLIN (Appellants)

BEFORE: FINLAYSON, LABROSSE and GOUDGE JJ.A.

COUNSEL: Keith Vanderbeke, the appellant, in person,

and for 875576 Ontario Limited

Diana Mifflin, the appellant, in person

Thomas M. Conway, for the respondent

HEARD: April 28, 2000

On appeal from the judgment of Cusinato J. dated June 30, 1999.

E N D O R S E M E N T

[1] This is an appeal by the appellants from the order of Cusinato J. declining to set aside the summary judgment of Zalev J. on the basis that the material the respondent bank placed before Zalev J. was fraudulent and incomplete. The appellants also submit, as fresh evidence, after-acquired documents that they say should have been before Zalev J.

[2] However, on examination, it is evident that the material that was placed before Zalev J. was neither fraudulent nor incomplete. The complaint essentially is that Zalev J. did not put the construction on the material that was later urged before Cusinato J. and this court. In our view, Cusinato J. was correct in his assessment that what are now being raised as allegations of misrepresentation are really arguments arising out of the original record that should have been submitted for the court’s consideration on the motion for summary judgment before Zalev J.

[3] Having concluded that the submission respecting the primary debtors must fail, there is no reason to discharge the appellant Mifflin as guarantor.

[4] Accordingly, the appeal is dismissed with costs.

Signed: “G.D. Finlayson J.A.”

“J.M. Labrosse J.A.”

“S.T. Goudge J.A.”