2007 ONCA 107
DATE: 20070219
DOCKET: C46174
COURT OF APPEAL FOR ONTARIO
RE:
ROYAL BUILDING SUPPLIES LTD. (Plaintiff/Respondent) – and – TABRCO MANAGEMENT LTD. AND BRIAN T. BRENNAN (Defendant/Appellant)
BEFORE:
CATZMAN, GOUDGE and LaFORME JJ.A.
COUNSEL:
Michael P. Farace
for the appellant, Brian T. Brennan
Kenneth P. Eccleston
for the respondent
HEARD & ENDORSED:
February 15, 2007
On appeal from the judgment of Justice Harriet E. Sachs of the Superior Court of Justice, dated October 10, 2006.
A P P E A L B O O K E N D O R S E M E N T
[1] Mr. Farace advanced two propositions in support of his appeal. The first was that the motion judge impermissibly made findings of credibility on a motion for summary judgment when she rejected Mr. Brennan’s “understanding” that Royal Building was to be paid only when Tabrco had been paid by its debtors. In doing so, she found that the appellant had not put his “best foot forward”, and rejected that defence on the basis that he had led no evidence, other than his bare assertion in support of the proposition he was advancing. In our view, her conclusion was in line with the authorities under the summary judgment rule and she was not acting beyond her jurisdiction in ruling as she did.
[2] Mr. Farace’s second proposition was that Mr. Brennan’s guarantee became suspended and unenforceable as a result of Tabrco’s assignment in bankruptcy. We are of the view that the motion judge correctly concluded that, as a matter of law, the bankruptcy of a debtor (in this case, Tabrco) does not have the effect of releasing a guarantor (in this case, Mr. Brennan) from liability under his guarantee of the debtor’s pre-bankruptcy indebtedness, unless the guarantee contains specific wording that admits of no other conclusion. The guarantee in this case contains no such wording.
[3] Accordingly, in our view, Sachs J. made no error in granting summary judgment against the appellant.
[4] The appeal is dismissed with costs, fixed in the amount of $6,000, inclusive of G.S.T. and disbursements.