Court of Appeal for Ontario

Date: 2018-03-15 Docket: C64125

Panel: Hoy A.C.J.O., Juriansz and Miller JJ.A.

Between

Boudreau Commercial Contracting Inc. Plaintiff (Respondent)

and

Paul Caruana and Dena Caruana Defendants (Appellant)

Counsel

Owen D. Thomas, for the appellant

Colin J. Bondy and Daniel Ableser, for the respondent

Heard and Released Orally

March 12, 2018

On Appeal

On appeal from the order of Justice George W. King of the Superior Court of Justice, dated June 23, 2017.

Reasons for Decision

[1] This is an appeal from a partial summary judgment granted by the motion judge.

[2] The appellant submits that partial summary judgment was inappropriate in the circumstances. We disagree.

[3] The motion judge gave careful consideration as to whether partial summary judgment could be granted. He noted that the evidence established, and both parties agreed, that the appellant's shareholder loan outstanding as of February 6, 2014 was $219,315 and that this was sufficient to establish a prima facie case for summary judgment. He noted the question he had to decide was whether there was evidence establishing that the shareholder loan was reduced or eliminated prior to the appellant's company's bankruptcy, or raising a genuine issue for trial. He considered the nature of the evidence before him and observed that what was before the court was essentially an accounting exercise, which could be determined on the basis of the documentary evidence before the court. Therefore he concluded this was a matter that could and should be determined on a summary judgment motion. We see no error in this conclusion.

[4] The appellant also argues that partial summary judgment was not appropriate because of the risk of inconsistent findings at trial. Given the nature of the findings made on the partial summary judgment and the nature of the issues remaining to be determined at trial in this case, we are not persuaded there is any risk of inconsistent findings being made at trial.

[5] The appellant also argues the motion judge erred in making the factual determinations that he did in the absence of evidence rebutting the appellant's assertions that he made payments on behalf of the bankrupt company. As noted, there was a prima facie case the appellant had to meet, and he had the obligation of putting his best foot forward. The motion judge looked carefully at his evidence and found it did not support his bold assertions. After considering each of the appellant's claimed payments, the trial judge concluded there was no genuine issue for trial that the outstanding balance of the appellant's shareholder loan on the date of the company's bankruptcy was in the amount of at least $161,724.75. These were factual findings and we see no basis for questioning any of them.

[6] Finally, the motion judge did not err in law in refusing to credit the appellant's shareholder loan with payments he claims to have made on behalf of the bankrupt company after the date of bankruptcy.

[7] For these reasons, the appeal is dismissed. Costs are awarded to the respondent fixed in the agreed amount of $6,500 inclusive of disbursements and HST.

"Alexandra Hoy A.C.J.O."

"R.G. Juriansz J.A."

"B.W. Miller J.A."