DATE: 20060608
DOCKET: C43773
COURT OF APPEAL FOR ONTARIO
RE: NATIONAL BANK OF GREECE (CANADA) (Plaintiff/Respondent) v. TRINITY PICTURES INC., JOHN GILLESPIE also known as JOHN SCOTT GILLESPIE, DONNA GILLESPIE, HONI’S HOLDINGS LTD., PLATINUM FILM PRODUCTIONS LTD., FALL ENTERTAINMENT INC., and 619438 ONTARIO LIMTIED (Defendants/Appellants)
BEFORE: DOHERTY, BLAIR and LAFORME JJ.A.
COUNSEL: Corey Bergstein for the appellants Constantine Alexiou for the respondent
HEARD & ENDORSED: June 6, 2006
On appeal from the judgment of Justice Pepall of the Superior Court of Justice dated May 31, 2005.
A P P E A L B O O K E N D O R S E M E N T
[1] The appeal can be broken down into two parts. First, the ground of appeal relating to all of the appellants and both loans (described as Loan A and B) put in issue on the appeal and the grounds of appeal relating only to the appellant, Donna Gillespie (“Donna”), and the personal line of credit advanced to Donna and her husband (described in Loan B).
[2] In respect of the first part of the appeal, the unchallenged evidence established that the respondent advanced the money, the appellants defaulted on the loans and the funds remained owing. The issues raised by the appellants (e.g. certain obvious inaccuracies in the dates in certain documents) while demonstrating a laxity and inattention to detail by the bank, do not give rise to genuine issues for trial.
[3] In respect of the second part of the appeal, Donna’s affidavit does not raise a genuine issue for trial in respect of the undue influence claim advanced by counsel. There is no freestanding obligation by a lender to provide independent legal advice to a lender.
[4] In some circumstances, the failure to provide independent legal advice will, in combination with other facts, support an undue influence claim. There is no suggestion in Donna’s affidavit that when she signed the documents relating to the personal loans made to her and her husband that she was under any undue influence. Her assertion that the money went to her husband’s business does not create any presumption of undue influence. At its highest, her evidence is that she signed the relevant documentation at her husband’s request and that she did so without reading the documents or making any inquiry of her husband or the bank. This cannot constitute undue influence.
[5] Given that Donna chose not to read the documents, her bold assertion that she would not have signed the documents had she read them, does not raise a triable issue on a non est factum claim.
[6] Costs to the respondent in the amount of $8,000, inclusive of disbursements and GST.