DATE: 20011220 DOCKET:C35305

COURT OF APPEAL FOR ONTARIO

RE:

THE TORONTO-DOMINION BANK (Plaintiff (Respondent)) – and – JOHN SAVILLE and RONALD STINSON (Defendants Appellant))

BEFORE:

CARTHY, ABELLA AND SHARPE JJ.A.

COUNSEL:

John Saville (in person)

Mark Muir Rodenburg

For the respondent

HEARD:

December 18, 2001

On appeal from the judgment of Justice B. H. Matheson dated October 10, 2000.

E N D O R S E M E N T

[1] Upon review of the authorities and in particular Toronto Dominion Bank v. McCowan (1995), 9 P.P.S.A.C. (2d) 176, we are satisfied that the motions judge was right to say that the terms of the guarantee prevent the defendant/plaintiff by counterclaim from pursuing his claims as guarantor, secured creditor or otherwise. The appeal is dismissed with costs.

“J.J. Carthy J.A.”

“R.S. Abella J.A.”

“Robert J. Sharpe J.A.”