DATE: 20010319

DOCKET: C34920

COURT OF APPEAL FOR ONTARIO

RE: THE TORONTO-DOMINION BANK (Plaintiff/Respondent) - and - FRANK CHIARELLA, MARISA CHIARELLA and ROCCO D'ONOFRIO (Defendants/Appellants)

BEFORE: CARTHY, FELDMAN and SIMMONS JJ.A.

COUNSEL: Patrick Di Monte For the appellant

James M. Butson For the respondent

HEARD: March 9, 2001

E N D O R S E M E N T

Released Orally March 9, 2001

[1] The appellant's position is that the genuine issue for trial here is whether he consented to a renewal of the mortgage for 60 months as the document indicates or for only six months as he says he believed. He is the guarantor of the original mortgage, but as well, he signed a stand-alone, ongoing guarantee of all of the obligations of the mortgagors/debtors up to $135,000.

[2] Under clause 11 of the stand-alone guarantee, the appellant could advise the respondent that he wished to discontinue his obligations under the guarantee. The effect of agreeing to a six-month renewal only of the mortgage could be to give the Bank that notice. The Bank could then decide at what point it wished to call the loan.

[3] The renewal document in this case is clear. It is signed by the mortgagors and guarantor and is for 60 months. The appellant's photocopy is the same but also shows an "x" by the six-month option. The presence of the "x" is unexplained by any other evidence. It is not on the Bank's copy. The Bank relied on its renewal document and on the ongoing, stand-alone guarantee.

[4] On a motion for summary judgment the appellant was required to put his best foot forward in terms of evidence to support his position that he was bound and agreed to only a six-month renewal. In the face of the signed documents and with no other evidence, in our view, there is no genuine issue for trial.

[5] The appeal is therefore dismissed with costs.

"J.J. Carthy J.A."

"K. Feldman J.A."

"J. Simmons J.A."