Court of Appeal for Ontario

Date: May 27, 2019 Docket: C65869

Judges: Tulloch, Benotto and Huscroft JJ.A.

Between

The Bank of Nova Scotia Plaintiff/Defendant by Counterclaim (Respondent)

and

1860384 Ontario Inc., Kathy Wilkes and Christopher Wilkes Defendants/Plaintiffs by Counterclaim (Appellant)

Counsel

Kathy Wilkes, in person

Daniel K. Reason, for the respondent

Heard: May 23, 2019

On appeal from the judgment of Justice Joseph M. Donohue of the Superior Court of Justice, dated August 8, 2018.

Appeal Book Endorsement

[1] The motion judge found there was no genuine issue for trial and made an order for summary judgment in favour of the respondent bank for approximately $275,000, a debt owed by 1860384 Ontario Inc. and guaranteed by the appellants on a joint and several liability basis.

[2] The appellants acknowledge the debt. All that was at issue before the motion judge was their counterclaim.

[3] The appellants repeat arguments that they made before the motion judge, all of which are based on the premise that they relied on advice given to them by the respondent's small business advisor, and that she failed to warn them of various problems they encountered in establishing and operating their Second Cup franchise.

[4] The motion judge found that the respondent's small business advisor played a limited role, that the appellant did not rely on the business advisor exclusively, and that the appellants signed documentation limiting the bank's liability to them. The motion judge found, further, that the appellants provided no support for an argument that the bank was responsible in a similar situation. In short, the appellants could not establish that the failure of their business was causally related to any failures by the respondent bank.

[5] These findings were open to the motion judge and we see no error in them. The appeal is dismissed.

[6] The respondent is entitled to costs in the amount of $5,000.