CITATION: Bank of Montreal v. Browning, 2008 ONCA 861
DATE: 20081219
DOCKET: C48711-C48774
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Doherty & Moldaver JJ.A.
BETWEEN:
Bank of Montreal
Plaintiff
and
Deborah Browning also known as Deborah R. Browning and Peter Browning also known as Peter H. Browning
Defendants
AND BETWEEN:
Peter Browning also known as Peter H. Browning
Appellant
and
Bank of Montreal
Respondent
Jon-David Giacomelli, for the defendant/appellant Peter Browning
Michael Emery, for the defendant/appellant Deborah Browning
Joshua Siegel, for the plaintiff/respondent Bank of Montreal
Heard and orally released: December 16, 2008
On appeal from the judgment of Justice James Clarke of the Superior Court of Justice, dated April 9, 2008.
ENDORSEMENT
[1] The bank has realized upon the security for the ReadiLine mortgage. As a result, the only issue remaining on this appeal is whether the appellants are liable for the amounts owing under the personal line of credit (the “PLOC”).
[2] The appellants raise two arguments. First, they argue that the bank based its action solely on the mortgage securing the ReadiLine line of credit and did not claim the amount owing under the PLOC. We do not agree. In addition to claiming on the mortgage, the statement of claim seeks payment of the full amount owing under both lines of credit. The claim for relief, read together with paragraphs 11 and 17, make it abundantly clear that the bank was making a claim based on the lines of credit in a total amount of $1.2 million, which included the amount owing under the PLOC.
[3] The appellants’ second argument is that the motion judge erred in finding that there was no genuine issue for trial that the appellants were liable for the amounts owing on the PLOC. We do not accept this argument.
[4] There was uncontradicted evidence that the appellants were liable for the amounts owing. The appellants signed the PLOC agreement. Their liability was joint and several. The bank advanced the monies being claimed and the bank sent monthly account statements to the appellants’ residences setting out the amounts owing from time to time. The appellants never objected to the monthly statements.
[5] We are of the view that any failure by the parties to complete paragraph 20 in the ReadiLine agreement relates only to the mortgage security and not to the PLOC. As such, it is immaterial to her liability on that line of credit.
[6] The appellant wife raises a concern that the monies advanced were for her husband’s business. If that was the case, that is an issue between the appellants, it does not affect her liability to the bank.
[7] In the result, the appeal is dismissed.
[8] Costs to the respondent are fixed in the amount of $3,200 each, inclusive of disbursements and GST.
“D. O’Connor A.C.J.O.”
“Doherty J.A.”
“M.J. Moldaver J.A.”