DATE: 20041201

DOCKET: C41628

COURT OF APPEAL FOR ONTARIO

RE:

CANADIAN IMPERIAL BANK OF COMMERCE (Plaintiff (Respondent)) – and – FUSCANA CORPORATION and JOSEPH SALVATORE FUSCO (Defendants (Appellants))

BEFORE:

ROSENBERG, MOLDAVER and SIMMONS JJ.A.

COUNSEL:

Joseph C. Vieni

for the appellants

Nicholas Kluge and Kevin Aalto

for the respondent

HEARD & ENDORSED:

November 30, 2004

On appeal from the judgment of Justice Robert Sutherland of the Superior Court of Justice dated March 12, 2004.

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

[1] The motion judge determined that paragraph 22 of the McCourt affidavit should be “ignored” for several reasons, one being that “in the circumstances, the affiant should have gone further and disclosed the sources of her knowledge.”

[2] In our view, that determination was sound. Having made it, the motion judge should have dismissed the Bank’s motion on the ground that there was a genuine issue for trial as to how much, if anything, Fuscana Corporation owed the Bank. The Bank concedes that even if the assignment was absolute, it still had to prove damages.

[3] Accordingly, we would allow the appeal and dismiss the Bank’s motion.

[4] Appellant is entitled to their costs here and before the motion judge fixed at $8,000 inclusive of disbursements and G.S.T.