DATE: 20060614

DOCKET: C43699

COURT OF APPEAL FOR ONTARIO

RE:

1560032 ONTARIO LIMITED c.o.b. as ACUITY DIGITAL IMAGING (Plaintiff/Appellant) v. CROCETTA ARCURI (Defendant/Respondent in Appeal)

BEFORE:

DOHERTY, BLAIR and LAFORME JJ.A.

COUNSEL:

Alan B. Dryer

for the appellant

Gordon Bent

for the respondent

HEARD & ENDORSED:

June 9, 2006

On appeal from the judgment of Justice Klowak of the Superior Court of Justice dated June 10, 2005.

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

[1] We are satisfied that the appeal must be dismissed. Assuming that the document signed by the respondent was capable of constituting a contract whereby the respondent guaranteed the company’s debt, we agree that it was binding on the respondent only if the signed document reflected a true consensus.

[2] The trial judge followed the approach dictated by this court in Tilden v. Clendenning, 18 O.R. (2d) 601. We think the trial judge implicitly found that the appellant knew or ought to have known that the respondent would not have read the document. The evidence of the statement made to the respondent by the employee of the appellant (and a personal friend of the respondent) to the effect that the document was needed for “standard credit information” by the appellant’s accounting staff, provided a basis upon which it could be concluded that the respondent as the bookkeeper would simply provide the credit information without reading the small print on the form. More importantly, it was open to the trier of fact to find that the appellant ought to have known that the respondent would not read the form. It follows that the appellant knew or ought to have known that the contents of the document insofar as the guarantee was concerned did not represent the true intention of the signer.

[3] The trial judge found that the appellant did nothing to bring the terms of the guarantee to the respondent’s attention. The appellant did not argue that it had done anything to do so, but argued that it had no responsibility to do so.

[4] The findings made by the trial judge bring this case within the principles of Tilden. The appellants cannot rely on the purported personal guarantee.

[5] The appeal is dismissed. Costs to the respondent in the amount of $5,000 “all in”.