COURT OF APPEAL FOR ONTARIO

CITATION: Royal Bank of Canada v. Uni-Can Linen & Uniform Supply Company Inc., 2016 ONCA 245

DATE: 20160404

DOCKET: C60755

Weiler, Hourigan and Huscroft JJ.A.

BETWEEN

Royal Bank of Canada

Plaintiff

(Respondent in Appeal)

and

Uni-Can Linen & Uniform Supply Company Inc.

and Giuseppe D’Ovidio

Defendants

(Appellants)

Sukhjinder Bhangu, for the appellants

Clark Peddle, for the respondent

Heard and released orally: March 31, 2016

On appeal from the final order of Justice Paul R. Sweeny of the Superior Court of Justice, dated June 17, 2015.

ENDORSEMENT

[1] The appellants appeal from the motion judge’s order granting summary judgment against them.

[2] The respondent was granted summary judgment on April 8, 2015. However, the respondent agreed to seek to have the judgment set aside because the appellants, who did not appear on the motion, had understood they were consenting to an adjournment rather than summary judgment. The respondent brought a motion to set aside the April 8, 2015 summary judgment and another motion for summary judgment, both returnable June 17, 2015.

[3] The appellants were served with notice of the motions on May 22, 2015, but did not file any respondent materials. The motion judge denied the appellants’ request for a further adjournment to allow time to pay and to file responding material. He set aside the April 8, 2015 summary judgment and granted summary judgment to the respondent on the second motion, with credit to be given for payments made after the statement of claim was issued.

[4] The appellants submit that the motion judge erred in granting summary judgment to the respondent while the first summary judgment was in place. The appellants submit, further, that the motion judge acted unfairly in denying an adjournment and that the trial judge erred in calculating the amounts owing.

[5] These submissions must be rejected.

[6] The motion to set aside the April 8, 2015 summary judgment was dealt with before the second motion for summary judgment was heard and decided. The appellants had ample notice of the June 17, 2015 date for the second motion but chose not to file materials. The date was picked based on the availability of the appellants’ counsel. Although the second motion for summary judgment was not in the court file, the motion was properly before the court, as the confirmation of motion indicates. It was open to the motion judge to refuse the appellants’ request for an adjournment in the exercise of his discretion in these circumstances.

[7] The appellants did not raise any specific issues about the amount owing before the motion judge. They alleged they had never received a proper statement as to what they owed. However, the parties agreed that prior payments made by the appellant would be credited following the issuance of the judgment.

[8] In oral submissions, the appellant sought to adduce an annual statement with respect to the one of the loan facilities. This is clearly an incomplete statement of the entire account. The breakdown of what is owed is set out in the affidavit of Paul Ihnatiuk filed on behalf of the respondent, at p. 46 of the Exhibit book. In addition, following summary judgment, the respondent’s counsel provided the appellants with a breakdown of the amounts required to discharge the securities. The total is $1,173,124.52.

[9] Counsel for the respondent acknowledged receipt of several payments made to an agent, set out at p. 32 of the respondent’s compendium. These payments have clearly been credited to the appellants.

[10] We are satisfied there can be no dispute as to the amount owing. We note that the respondent’s counsel undertook before us, as before the motion judge, to credit any payments by the appellants and have the writ of execution changed accordingly.

[11] Additional arguments set out in the appellants’ factum were not raised in oral argument, but in any event they have no merit. The appeal is therefore dismissed.

[12] The appellants shall pay the respondent costs fixed at $6,000, inclusive of taxes and disbursements.

“K.M. Weiler J.A.”

“C.W. Hourigan J.A.”

“Grant Huscroft J.A.”