Court of Appeal for Ontario

CITATION: Entry Point Investments v. Invis Inc., 2015 ONCA 701

DATE: 20151020

DOCKET: C60273

Gillese, van Rensburg and Miller JJ.A.

BETWEEN

Anthony Gyimah trading as Entry Point Investments

Appellant (Plaintiff)

and

Invis Inc., Ricky Singh, Poorna Jayasena, Kviwinder Sohi, Jasvinder Sohi, Naomi Edwards, Ranjit Dullay, Domenic Reda

Respondents (Defendants)

Anthony Gyimah, acting in person

Ilan Ishai and Grace M. McKeown, for the respondents

Heard: October 9, 2015

On appeal from the order of Justice Paul Perell of the Superior Court of Justice, dated March 30, 2015.

ENDORSEMENT

[1] Anthony Gyimah brought a motion for summary judgment against the respondents Ricky Singh, Domenic Reda, and Invis Inc. on an alleged guarantee of a $30,000 loan that Gyimah made to Ranjit Dullay and Naomi Edwards, who were also named as defendants to the action.

[2] The motion for summary judgment was dismissed, and the cross-motion of the respondents for summary judgment dismissing the action against them was granted, with costs fixed at $25,000.

[3] Gyimah appeals, and also seeks leave to appeal the costs order.

[4] The motions judge found that Dullay and Edwards approached Singh, a mortgage broker with Invis Inc., to arrange a short-term bridge loan to facilitate the closing of a home purchase. Singh approached his Invis Inc. colleague Reda, who approached Gyimah in relation to providing a loan to Dullay and Edwards.

[5] Gyimah agreed to lend $30,000 to Dullay and Edwards for a fee of $1,500.

[6] Gyimah’s expectation was that the loan would be repaid, together with the loan fee, in three days, on the close of the real estate transaction.

[7] After receiving letters of direction confirming that $31,500 from the proceeds of the purchase price would be paid to him on closing, Gyimah advanced $30,000 to Dullay. Dullay is alleged to have given $10,000 to a realtor for a purchase deposit, and $20,000 to Dullay’s solicitor.

[8] Subsequently, the real estate transaction did not close, and Dullay’s solicitor paid the $20,000 into court.

[9] The motions judge found that there was no agreement between Gyimah and the respondents that the respondents would guarantee the loan. The motions judge preferred the respondents’ evidence over Gyimah’s evidence, which was unsupported by documentary evidence and found to be implausible. The motions judge weighed the evidence of the parties as he was entitled to do, and drew permissible inferences. These findings and inferences are entitled to deference; the appellant has not identified any palpable and overriding errors in them.

[10] With respect to Gyimah’s allegation that the guarantee was an oral agreement, the motions judge made no error in dismissing the claim on the basis that even if an oral guarantee had been given, s. 4 of the Statute of Frauds, R.S.O. 1990, c. S.19 requires a guarantee to be in writing to be enforceable.

[11] We would not grant leave to appeal the costs order but, in any event, we see no basis on which to interfere with it.

DISPOSITION

[12] The appeal is dismissed with costs to the respondents fixed at $6,400.00, all inclusive.

“E.E. Gillese J.A.”

"K. van Rensburg J.A."

“B.W. Miller J.A.”