Court of Appeal for Ontario

Citation: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614

Date: 20120917

Docket: C53134

Before: Winkler C.J.O., LaForme J.A. and Cunningham A.C.J. (ad hoc)

Between

The Toronto-Dominion Bank

Plaintiff (Respondent)

and

Paul Hylton also known as Paul U Hylton

Defendant (Appellant)

Counsel:

Osborne Barnwell, for the appellant

Dennis Touesnard, for the respondent

Heard and released orally: September 10, 2012

On appeal from the judgment of Justice Harrison S. Arrell of the Superior Court of Justice, dated December 10, 2010.

ENDORSEMENT

[1] All the proposed fresh evidence filed for this court’s consideration on this appeal was available to Hylton before the second hearing of the Toronto-Dominion Bank’s summary judgment motion. Especially given this court’s reasons and comments in Hylton’s first appeal, there is no reason why he would not have been aware of the requirement to exercise reasonable diligence in obtaining and presenting this evidence at the second summary judgment hearing.

[2] The affidavit of the signing officer at Keywell is sparse. It simply makes a bald assertion that the loan was intended to be for the company, but does not explain the circumstances surrounding the loan applications or the defaults. The evidence was available well before the hearing and without more evidence on contractual intent, these materials are meaningless.

[3] Moreover, Hylton has not only waited until now to obtain evidence he could have obtained all along, he is presenting a picture of the facts so poorly incomplete and unpersuasive as to beg the question: what will he gain from having a lower court consider this matter for a third time?

[4] The motion judge exercised his discretion in weighing the evidence, drawing inferences from the facts and making findings of credibility. He made no errors in doing so.

[5] A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue for trial. Once this burden is discharged the responding party must prove that its defence has a real chance of success. Each party must put its best foot forward to establish whether or not there is an issue for trial. The court is entitled to assume that the record contains all the evidence the parties would present at trial.

[6] The appellant has failed to put his best foot forward after this court has given him an additional chance to do so. The appeal is dismissed. Costs to the respondent are fixed in the amount of $5,000, inclusive of disbursements and applicable taxes.

“W. K. Winkler C.J.O.”

“H.S. LaForme J.A.”

“J.D. Cunningham A.C.J. S.C.J. (ad hoc)”