Court of Appeal for Ontario

CITATION: Business Development Bank of Canada v. 1626012 Ontario Inc. (Artistic Leather Living), 2012 ONCA 56

DATE: 20120130

DOCKET: C53712

Doherty, LaForme and Hoy JJ.A.

BETWEEN

Business Development Bank of Canada

Plaintiff (Respondent)

and

1626012 Ontario Inc. sometimes operating as Artistic Leather Living and Jatiner Gohal also known as Jim Gohal

Defendants (Appellants)

John W. Bruggeman, for the appellants

Bart Sarsh, for the respondent

Heard and released orally: January 20, 2012

On appeal from the judgment of Justice Kim A. Carpenter-Gunn of the Superior Court of Justice, dated April 13, 2011.

ENDORSEMENT

[1] In face of the documentary record, the vague assertions by the appellants, which are contrary to the documented history of dealings between the parties and the chronology established by the documents, and the agreement of the parties that any changes to the loan facility required the respondent’s written consent, we are satisfied that the motion judge properly concluded that this was an appropriate case to grant summary judgment.

[2] While not applicable at the time, we are satisfied, given the role documentary evidence in this case, that the test in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 – namely whether a full appreciation of the evidence and issues required to make dispositive findings can be achieved by the summary judgment – was met.

[3] We do not accept the appellants’ argument that an adverse inference should have been drawn against the respondent because it only provided the evidence of Ms. Reaume. The chronology established by the documents demonstrates that she was an appropriate affiant.

[4] In the result, the appeal is dismissed with costs, fixed at $4,000, inclusive of disbursements and applicable taxes.

“Doherty J.A.”

“H.S. LaForme J.A.”

“Alexandra Hoy J.A.”