Court of Appeal for Ontario
Date: 2018-03-29 Docket: C64274 Judges: Pepall, Brown and Trotter JJ.A.
Between
Plaintiffs (Respondents):
- Cynthia Borkowsky
- CMS Holdings Inc.
- Arif Hirji
- Selina Hirji
- Dr. Adam Natshen Medicine Professional Corporation
- Dr. Frank Papanikolaou Medicine Professional Corporation
- Dr. Chantelle Ung Medicine Professional Corporation
- Chantelle Ung
- 1281005 Ontario Inc.
- Nick Veronico
- Savoula Veronico
- Shelley Murphy
- Katherine Stone
- James Ashbridge
and
Defendants (Appellants):
- Chris Hogg (also known as Chris R. Hogg)
- Nabil Bader (also known as Nabil A. Bader)
- Glocap Management Inc.
- Strategic Alliance, FZE
Counsel
For the Appellants: Angela Assuras
For the Respondents: Ron Aisenberg
Heard
March 27, 2018
Appeal
On appeal from the judgment of Justice Gisele M. Miller of the Superior Court of Justice, dated August 8, 2017.
Appeal Book Endorsement
[1] We see no merit in this appeal. The respondents lent funds to Glocap and they sued for the funds that were had and received by Glocap. The motion judge correctly rejected the argument that the appellants could rely on their own failures to obtain any necessary approvals so as to deny their obligations to the respondents.
[2] As for the guarantee issue, Hogg was the controlling shareholder of Glocap, signed each of the Loan Agreements and one of the Loan Amendment Agreements on behalf of Glocap. As found by the motion judge, there was no evidence that Hogg did not consent and there was ample evidence in the record from which it could be inferred that he had consented. It cannot be said that there was any unilateral alteration of risk. Moreover, the motion judge also made a finding that Hogg had contracted out of the material alteration protection in the guarantees and we see no palpable and overriding error.
[3] Lastly, the settlement of a related action did not allocate amounts for the claims of the 65 plaintiffs in that action. In the within action, the respondents proved their entitlement to repayment of the funds advanced to Glocap and provided a formula for allocation of credit. The burden was on the appellants to establish the quantum of the appropriate credit amount they sought and they failed to meet this burden. They have no basis now to dispute that credit.
[4] There was no need for a trial in this case and the motion judge correctly disposed of the action on the basis of a summary judgment.
[5] The appeal is dismissed. The appellants are to pay the respondents $12,000 on a partial indemnity scale inclusive of disbursements and applicable taxes.