Court of Appeal for Ontario

Date: 2018-10-31 Docket: C64453

Judges: Lauwers, Huscroft and Trotter JJ.A.

Between

Copperfin Credit Union Limited Plaintiff (Respondent)

and

2427087 Ontario Inc., Melissa Harrison, Rosalba Cupello Defendants (Appellant)

Counsel

Michael Cupello, for the appellant

Jordan Lester, for the respondent

Heard: October 29, 2018

On appeal from: the judgment of Justice J.S. Fregeau of the Superior Court of Justice, dated August 23, 2017.

Reasons for Decision

[1] Copperfin sued Rosalba Cupello on a guarantee of the indebtedness of 2427087 Ontario Inc. The motion judge granted summary judgment in the amount of $100,000, plus interest and costs.

[2] The appellant argues that by advancing the loan before it got all of the associated security, Copperfin materially varied the loan agreement, thus releasing Ms. Cupello from her personal guarantee. We reject this argument. The motion judge correctly pointed out that the guarantee expressly provided that liability of the guarantor under it would not be affected by any failure on Copperfin's part to perfect any security.

[3] The appellant next argues that by way of a collateral agreement, Copperfin agreed not to advance more than $200,000 without having the necessary security documentation in place. There is nothing in the loan agreement or in the guarantee to support this argument. The motion judge pointed out that Ms. Cupello was legally advised throughout. Moreover, the guarantee contained an "entire agreement" clause, providing that the guarantee could not be modified by any collateral agreements unless they were properly formalized.

[4] The motion judge stated: "There is no evidence before me on this motion to support Ms. Cupello's assertion that the terms of the guarantee were modified at some point in time to reflect 'an express agreement' between herself and Copperfin in which it was agreed that 'no more than $200,000 would be advanced on the project, which was going to be secured dollar for dollar by way of my pledge of $100,000 and Harrison's pledge of $100,000.'" This is an evidentiary finding to which we must defer unless the motion judge made a palpable and overriding error in so finding.

[5] The appellant points to an October 16, 2014 email from a representative of Copperfin to Ms. Cupello. The motion judge interpreted the email, taking into account the cross-examination of the representative, as stating only that any future advances beyond the $314,000 that had been advanced at the date of the email would "come through [him] moving forward." This was a reasonable interpretation. As it happens, no additional funds were advanced after the date of the email.

[6] The motion judge buttressed his finding that the alleged collateral agreement contradicted the entire agreement clause in the guarantee with a finding that the parol evidence rule precluded the admission of Ms. Cupello's evidence of an alleged collateral agreement or Copperfin's representations. He also found the doctrine of promissory estoppel did not apply. We agree.

[7] The appellant has pointed to no palpable and overriding error of fact and to no error of law made by the motion judge that would justify allowing the appeal. The appeal is dismissed with costs payable by the appellant to the respondent fixed at $9,500.

P. Lauwers J.A.

Grant Huscroft J.A.

G.T. Trotter J.A.