DATE: 20040408

DOCKET: C40547

COURT OF APPEAL FOR ONTARIO

RE: CANADIAN IMPERIAL BANK OF COMMERCE (Plaintiff/Respondent) and GLORIA BLOCK (Defendant/Appellant)

BEFORE: CHARRON, ARMSTRONG and BLAIR JJ.A.

COUNSEL: A. Patrick Wymes for the defendant/appellant

Ralph Swaine for the plaintiff/respondent

HEARD: April 5, 2004

RELEASED ORALLY: April 5, 2004

On appeal from the orders of Justice Joseph M. Fragomeni of the Superior Court of Justice dated July 22, 2003.

E N D O R S E M E N T

[1] This is an appeal from the decision of Fragomeni J. who granted summary judgment in favour of the bank in the amount of $32,796.01 inclusive of prejudgment interest. The appellant’s primary complaint, however, relates to the dismissal of its cross-motion to dismiss the Bank’s motion on the ground of the Bank’s failure to attend at cross-examinations on its amended affidavit of documents and to prevent the Bank from relying on its amended affidavit of documents.

[2] This is a simplified rules proceeding and the Bank took the position that it did not have to attend on cross-examinations on notice. Except for the issue of costs and sanctions for non-compliance with the Rules, however, this issue became irrelevant because by the time of the Bank’s summary judgment motion, the Bank had provided an affidavit of documents making full disclosure. On the basis of that documentation, the defendant’s counsel did not oppose the motion for summary judgment, although he still maintained his argument that he should be entitled to cross-examine and that the Bank should not be entitled to rely upon the newly produced documents. Fragomeni J., in the exercise of his discretion, rejected those arguments.

[1] Before us, counsel for the appellant conceded that the summary judgment was properly granted on the basis of the documentation currently provided. There is no basis for setting aside that judgment.

[2] It is apparent from counsel’s submissions that the real concern here is the $30,000 in costs that Ms. Block has incurred in defending the action because of the Bank’s failure to make timely documentary disclosure. We agree with the observation of Fragomeni J. that “a litigant, especially in simplified procedure actions, must provide full and complete production” and, we would add, in a timely fashion in accordance with the Rules.

[3] The Bank was clearly dilatory and incomplete in its production obligations up until the instant motion for summary judgment and Fragomeni J. was right in observing that if timely disclosure had been made, the action would likely have been resolved. However, Fragomeni J. took these issues into account in two different ways: first, he limited the Bank’s recovery of prejudgment interest to the date of the demand rather than the date of judgment. Secondly, he did not award the Bank any costs notwithstanding Ms. Block had been unsuccessful. This was significant because in view of her allegations of misrepresentation and perjury against the Bank, she may well have been exposed to a significant award of costs on a substantial indemnity basis.

[4] For all these reasons therefore, the appeal is dismissed. The respondent is entitled to its costs of the appeal, fixed at $2,500.00.

“Louise Charron J.A.”

“Robert P. Armstrong J.A.”

“Robert A. Blair J.A.”