DATE: 20040625
DOCKET: C41155
COURT OF APPEAL FOR ONTARIO
RE: BUSINESS DEVELOPMENT BANK OF CANADA (Plaintiff (Respondent)) – and – ALI VAKILI, FRED MISSAGHI also known as FARSHID MISSAGHI, and MANU MISSAGHIE also known as MANUCHER MISSAGHIE (Defendants (Appellants))
BEFORE: ARMSTRONG, BLAIR and JURIANSZ JJ.A.
COUNSEL: John Whitehead,
for the appellants
Carla Falkeisen,
for the respondent
HEARD: June 21, 2004
RELEASED ORALLY: June 21, 2004
On appeal from the judgment of Justice E.R. Browne dated November 24, 2003.
E N D O R S E M E N T
[1] The appellants argue that they were no longer bound by a guarantee in the amount of $150,000 and that the motions judge erred in granting summary judgment for half the amount of the guarantee. In fact, on the evidence, the appellants conceded that they owed $75,000. There is, therefore, no genuine issue for trial in respect of that amount.
[2] The respondent Bank cross-appeals and seeks judgment on the full amount of the guarantee. The appellants each signed a letter from the Bank dated September 24, 2002, which deleted the amendment to the loan agreement whereby the guarantee could be reduced to $75,000 if certain conditions were met. Although the motions judge makes reference to this letter in his reasons, he does not consider its effect. In our view, the effect of the letter of September 24, 2002 was to reestablish the full amount of the guarantee at $150,000. There is no evidence in the record to raise whether the appellants should not be bound by their signatures on the letter as a genuine issue for trial.
[3] In the result, the appeal is dismissed, the cross-appeal is allowed, the judgment of the motions judge should be amended to provide that the defendants shall pay the plaintiff $150,000 plus prejudgment interest.
[4] The respondent shall have its costs on a partial indemnity basis fixed at $10,000 for the action and $5,000 for the appeal inclusive of disbursements and Goods and Services Tax.
“Robert P. Armstrong J.A.”
“R.S. Blair J.A.”
“R.G. Juriansz J.A."