Court of Appeal for Ontario

CITATION: Laurentian Bank of Canada v. Bonhomme, 2012 ONCA 515

DATE: 20120725

DOCKET: C54856

Simmons, Juriansz and Epstein JJ.A.

BETWEEN

Laurentian Bank of Canada

Plaintiff

(Respondent)

and

Jean-Claude Bonhomme

Defendant

(Appellant)

Counsel: Michael B. Miller, for the appellant James M. Butson, for the respondent

Heard: July 17, 2012

On appeal from the judgment of Justice Katherine M. van Rensburg of the Superior Court of Justice, dated December 7, 2011.

APPEAL BOOK ENDORSEMENT

[1] The motion judge granted summary judgment to the Bank on a line of credit. The appellant contends that the only advance he was aware of under the line of credit was repaid and that the Bank subsequently breached the terms of the line of credit agreement by making advances without the authorization of both signatories to the line of credit agreement.

[2] Paragraph 11 of the line of credit agreement provides in part as follows:

Signatories

The Bank shall be authorized to extend loans on presentation of any cheque or other written request bearing the signature of the Customer as subscribed to the present document or that of any other person authorized to draw cheques on the Customer’s Line of Credit account.

[3] On page 1 of the line of credit agreement, the appellant and his co-signatory, Mr. Jean-Claude Bonhomme and Mr. Richard Martel, are described as “the Customer”. In our view, on its face, the line of credit agreement is ambiguous concerning whether “the Customer” means one or both signatories to the line of credit agreement. This issue can only be resolved with the benefit of extrinsic evidence and requires a trial.

[4] In fairness to the motion judge, there is a dispute concerning whether this issue was raised in the court below. However, we entertain it because it was pled.

[5] For the reasons given the appeal is allowed, the motion judge’s order is set aside and the motion for summary judgment is dismissed.

[6] The costs order below is set aside and in its place is substituted an order for costs of the appeal and costs of the motion below to the appellant on appeal (respondent on the motion), on a partial indemnity scale fixed in the amount of $8,000 inclusive of disbursements and applicable taxes.