Court of Appeal for Ontario

Citation: Byfield v. The Toronto-Dominion Bank, 2012 ONCA 49

Date: 2012-01-27

Docket: C54198

Before: Cronk and Blair JJ.A. and Strathy J. (ad hoc)

Between

Luristein Byfield Plaintiff (Appellant)

and

The Toronto-Dominion Bank, European Table Inc. and Mitra Gray Defendants (Respondents on Appeal)

Counsel: Majekodunmi Adega, for the appellant Harvey J. Ash, for the respondent European Table Inc. Chad Kopach, for the respondent The Toronto-Dominion Bank

Heard: January 23, 2012

On appeal from the judgment of Justice M. Edwards of the Superior Court of Justice, dated July 22, 2011.

ENDORSEMENT

[1] The appellant commenced an action to invalidate a home renovations transaction with the respondent, European Table Inc., and a loan agreement with a bank whereby the appellant financed the costs of the renovations. The motion judge granted summary judgment in favour of the respondent on the basis that there was no genuine issue requiring a trial in respect of the home renovations transaction.

[2] The appellant appeals. She argues that the motion judge erred: (1) by making factual findings in the absence of supporting evidence or in the face of conflicting evidence; and (2) by improperly imposing a burden on her to prove that her claim had a real chance of success, notwithstanding that the respondent allegedly failed to establish that there was no genuine issue requiring a trial.

[3] We reject these arguments.

[4] At heart, the appellant’s challenge to the summary judgment rests on her assertion that the motion judge misapprehended and exceeded his authority on a summary judgment motion. We disagree.

[5] Although the motion judge did not have the benefit of this court’s recent decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, his reasons indicate that he was alive to the nature of his powers under Rule 20 of the Rules of Civil Procedure and that his decision was grounded in the evidence before him.

[6] The motion judge held, as he was entitled to do, that the appellant had entered into a contract with the respondent for the renovations in question at an initial contract price of $35,000. He rejected, as unsupported by any objective evidence, the appellant’s claim that her signatures on the contract and other related documents were forgeries.

[7] These holdings were well within the ambit of the motion judge’s authority on a summary judgment motion. This was not a case where a full appreciation of the evidence and the issues that was required to make dispositive findings could only be achieved by way of a trial. On the contrary, the motion judge’s holdings are firmly – indeed, perhaps overwhelmingly – supported by the evidentiary record including, in part, by the appellant’s own affidavit evidence concerning the contract price for the renovations. The evidence before the motion judge established the existence of a contract at the initial price asserted by the respondent, the performance of the contract save for one outstanding installation item (the kitchen backsplash) – the completion of which is within the appellant’s control – the acceptance by the appellant of the benefits of the contract, and a value for the work performed by the respondent in at least the amount of $25,000.

[8] Moreover, as indicated by the motion judge, the appellant’s forgery claim was based solely on her bald assertions of forgery without corroborative evidence of any kind. This allegation stood in stark contrast to the contemporaneous documentary evidence and the respondent’s sworn affidavit evidence of the fact of, and the circumstances surrounding, the appellant’s execution of the contract.

[9] Nor was the summary judgment in this case inappropriate by reason of the fact that the parties agreed that the action should be treated as if brought under the simplified procedures under Rule 76. There was no significant conflicting evidence in this case that might have dictated that a speedy trial was the proper course. In addition, the contemporaneous documentation before the motion judge supported the respondent’s version of events. Accordingly, this was a case where both the full appreciation test for summary judgment and the efficiency rationale reflected in Rule 76 were served by granting summary judgment: see Combined Air at paras. 255-57.

[10] Finally, the motion judge did not err in his approach to the appellant’s burden on the motion. On a motion for summary judgment, the court is entitled to assume that the parties have advanced their best case and put forward the evidence on which they rely to make out their case. This places a burden on a party who resists summary judgment, like the appellant, to ‘lead trump or risk losing’. We see no error in the motion judge’s conclusion that, in the circumstances here, the appellant failed to meet her evidentiary burden.

[11] Accordingly, the appeal is dismissed. The respondent European Table Inc. is entitled to its costs of the appeal, fixed in the amount of $6,000, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“R.A. Blair J.A.”

“G.R. Strathy J.”