Court of Appeal for Ontario

Citation: Edwards v. Karpacs, 2011 ONCA 520

Date: July 13, 2011

Docket: C53221

Before: Doherty, Laskin and Simmons JJ.A.

Between:

Ray Edwards

Plaintiff (Respondent)

and

Stefan Karpacs and Antonio Bacsa

Defendants (Antonio Bacsa, Appellant)

Counsel:

W. Peter Murray, for the appellant, Bacsa

Colin Geoffrey Millar, for the respondent

Heard: July 12, 2011

On appeal from the judgment of Justice Barry Matheson of the Superior Court of Justice, dated October 26, 2010.

APPEAL BOOK ENDORSEMENT

[1] There is nothing in the terms of the mortgage or the commitment letter to support the contention that there was an “implicit” understanding that the appellant would not be liable under his guarantee until the full amount on the mortgage was advanced.

[2] In the circumstances presented by this record, the respondent’s decision not to pursue the $50,000 in the context of the Crown’s forfeiture proceeding does not preclude its claim against the guarantor for that amount as part of the amount owed under the guarantee.

[3] It will be open to the appellant on the accounting ordered to argue, if so advised, to claim that the $50,000 was not advanced under the mortgage. We express no view on the merits of that argument.

[4] The appeal is dismissed. Costs in the amount of $2,500, inclusive of disbursements and all applicable taxes to the respondent.