DATE: 20041110

DOCKETS: C38989 (M31878), C38990,

C38991 and C38992

COURT OF APPEAL FOR ONTARIO

C38989 (M31878)

RE:

BANK OF MONTREAL (Respondent) -and- MAPLE CITY FORD SALES (1986) LIMITED, DAVID BROCK McKEAND, PAUL T. McKEAND and KATHERINE EVA MARION McKEAND (Appellants)

C38990

AND RE:

MALGER LEASING (Appellant) -and- BANK OF MONTREAL (Respondent)

C38991

AND RE:

FIRST CITY TRUST COMPANY (Respondent) -and- PAUL T. McKEAND and DAVID BROCK McKEAND (Appellants) -and- BANK OF MONTREAL (Respondent)

C38992

AND RE:

FIRST CITY TRUST COMPANY (Respondent) -and- MALGER LEASING (Appellant) -and- BANK OF MONTREAL (Respondent)

BEFORE:

CATZMAN, FELDMAN and BLAIR JJ.A.

COUNSEL:

Charles Owen Spettigue Jr.

for the appellants

Tony Van Klink and Alissa K. Mitchell

for the respondent Bank of Montreal

HEARD AND ENDORSED:

November 9, 2004

On appeal from the judgment of Justice Eileen E. Gillese of the Superior Court of Justice, sitting without a jury, dated September 17, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] At the opening of the argument of the appeal, Mr. Spettigue advised that he was not pursuing the motion, dated November 2, 2004, grounded on the alleged reasonable apprehension of bias on the part of the trial judge. That motion is dismissed as an abandoned motion.

[2] In her thorough and careful reasons for judgment, the trial judge canvassed all of the issues that were raised by the appellants at trial and repeated on their behalf on this appeal. Her findings of fact on the issues of misrepresentation, admission of parol evidence and the reasonableness of the notice given by the respondent were supported by the evidence before her and are fatal to the appellants’ position on this appeal. The submission made by Mr. Spettigue based on paragraph 4 of the forebearance agreement – which submission was not made at trial – does not assist the appellants’ position because it contemplates future terms and conditions rather than past representations.

[3] The appeal is dismissed with costs.

[4] The costs of the appeal are fixed in the sum of $17,500, all inclusive. The sum of $15,000 paid into court, together with interest thereon, will be paid out of court to the respondent and applied against the amount of $17,500, referred to above. Counsel for the appellants does not oppose the making of an order for payment out of court of the sum of $55,000, plus accrued interest, paid into court as security for costs of the trial, and an order will issue accordingly.