DATE: 20060519

DOCKET: C44459

COURT OF APPEAL FOR ONTARIO

RE:

BANK OF MONTREAL (Plaintiff/Respondent) – and –

NABIL YACOUB ABDEL‑MESSIH and NAYRA WADIE ABDEL‑MESSIH (Defendants/Appellants)

BEFORE:

McMURTRY C.J.O. WEILER and BLAIR JJ.A.

COUNSEL:

Donald R. Good

for the appellants

P. Roderick Brooks

for the respondent

HEARD & RELEASED ORALLY:

May 18, 2006

On appeal from the judgment of Justice Lynn D. Ratushny of the Superior Court of Justice dated October 21, 2005.

E N D O R S E M E N T

[1] The appellants appeal from the order granting the respondent’s motion for summary judgment in accordance with the Minutes of Settlement between the parties. The appellants assert that summary judgment was improperly granted and raise three arguments: 1) The motion judge did not properly apply the test for summary judgment and the amount found owing is inaccurate; 2) the motion judge erred in dismissing the appellants’ claim that the minutes of settlement had been changed without his permission by stating that the claim was “last-minute” and “spurious”; and 3) the motion judge erred in basing her conclusions on implicit findings of fact made in the face of conflicting evidence that raised genuine issues of credibility.

[2] While we have some sympathy at a personal level for Mr. Abdel‑Messih’s situation we see no legal merit in any of the appellants’ arguments. The documentation is clear that the appellants paid off one loan of $75,000. They had a second $125,000 loan and, after making some payments, agreed to a settlement of $100,000. Bald assertions without supporting evidence in a self-serving affidavit do not create a triable issue. Even if we were to accept the appellants’ assertion that the document contained wording to the effect he agreed to pay up to a maximum of $100,000, and that the clause was amended without his knowledge or consent to simply indicate $100,000 was owed, it was open to the respondent to demand that the appellants pay the maximum of $100,000. There is no evidence that the bank put pressure on the appellants to sign the minutes of settlement and Mr. Abdel-Messih’s subjective feeling that he was under pressure due to his wife’s illness cannot be the basis for setting aside the agreement. The motion judge properly applied the test for summary judgment. She did not err in granting summary judgment on the basis that there was no genuine issue for trial and accordingly the appellants’ appeal is dismissed.

[3] Costs to the respondent fixed in the amount of $3,000 plus disbursements and GST.

[4] Following the court’s decision, counsel agreed to the issuance of a writ of possession with respect to the premises in issue.

“R. R. McMurtry C.J.O.”

“K. M. Weiler J.A.”

“R. A. Blair J.A.”