DATE: 20021210

DOCKET: C38068

COURT OF APPEAL FOR ONTARIO

RE: CIBC MORTGAGE CORPORATION (Plaintiff/Respondent) v. GREENWOOD DEVELOPMENT CORP., TRILLIUM NORTHERN INVESTMENT CORP., TERESA COCCIMIGLIO, JAMES CONCI AND JAMES CONCI HOLDINGS INC. (Defendants/Appellants)

BEFORE: DOHERTY, AUSTIN and CHARRON JJ.A.

COUNSEL: Alan J. Butcher

for the appellant

Christopher Hacio

For the respondents, Conci and Conci Holdings Inc.

Michael Cupello

for the respondent, Coccimiglio

HEARD: December 3, 2002

RELEASED

ORALLY: December 3, 2002

On appeal from the judgment of Justice S.R. Kurisko dated February 11, 2002.

E N D O R S E M E N T

[1] James Conci and James Conci Holdings Inc. (“Conci”) appeal from the summary dismissal of their claim for negligent misrepresentation against CIBC Mortgage Corporation.

[2] The appellants concede that there was no evidence that the representation made by the respondent to Mr. Conci concerning Mr. Coccimiglio’s financial status was false. Counsel submits, however, that it could reasonably be inferred from the respondent’s representations that Mr. Coccimiglio’s personal guarantee would be obtained in respect of the mortgage debt. In fact, the bank knew that Mr. Coccimiglio was not guaranteeing the company’s loan.

[3] We must reject this submission. Mr. Conci gave no such evidence in any of his affidavits or in his cross-examination. Nor does it follow, given that Mr. Coccimiglio was involved in the business venture with the appellants, that representations as to his financial viability by the respondent amounted to a representation that Mr. Coccimiglio was assuming some kind of personal liability on the mortgage debt. One simply does not imply the other. We would not give effect to this ground of appeal.

[4] The appellants also appeal from the partial judgment granted on the respondent’s claim on the guarantee. The motion judge granted partial judgment only because he held that the counterclaim for damages resulted from an improvident sale by the respondent raised a triable issue. It would appear from his reasons that he intended to limit that issue by holding that the improvident sale raised a triable issue only to the extent of the maximum market value contained in the opinion of the expert relied on by the appellants on the motion. In our view, and counsel for the respondent agrees, the amount claimed in the counterclaim cannot be so limited. The appellants are free to advance at trial whatever evidence and arguments are deemed appropriate in support of their improvident sale claim.

[5] Even though the counterclaim remains outstanding, we are satisfied that the motion judge properly granted judgment in favour of the respondent on the guarantee. We are further satisfied that the judgment should have been in the entire amount of $869,091.18. The issue then arises as to whether the motion judge should have stayed that judgment in whole or part pending the determination of the counterclaim. This was a matter for the discretion of the motion judge. Having regard to the relative strength of the evidence offered in support of the counterclaim, and in particular the expert evidence adduced by the appellant as to the value of that property at the time of sale, we are satisfied that judgment on the claim should be stayed, but only to the extent of $246,000.

[6] In the result, paragraph 4 of the motion judge’s order should be amended to grant judgment to the respondent on its claim on the guarantee in the amount of $869,091.18. Paragraph 5 of that order should be set aside and in its place substituted a provision staying the order made in paragraph 4 to the extent of $246,000 pending determination of the counterclaim or some other order of the court. These variations do not materially affect the substance of the disposition made by the motion judge.

[7] Counsel for the appellant had been excused by the court before the question of costs of the appeal was raised by the court. Mr. Butcher, counsel for the respondent, advises that he and counsel for the appellant had agreed that costs in the amount of $4,000 should go to the successful party on the appeal. It is perhaps arguable that the appeal has yielded a mixed result. We propose to order that costs will go to the respondent in the amount of $4,000 unless by no later than December 11^th we have received submissions from counsel for the appellant taking issue with the proposed costs order.

“Doherty J.A.”

“Austin J.A.”

“Louise Charron J.A.”