Court of Appeal for Ontario

Date: 20220114 Docket: C69236

Huscroft, Trotter and Coroza JJ.A.

Between:

Barry James Gallant Plaintiff (Appellant)

and

556614 Ontario Inc. and Miranda Bailey also known as Miranda Wendover Bailey Defendants (Respondents)

Counsel: Kevin Sherkin, for the appellant Benjamin E. Jefferies, for the respondent Miranda Bailey

Heard: January 13, 2022 by video conference

On appeal from the order of Justice Michael N. Varpio of the Superior Court of Justice, dated March 1, 2021.

Reasons for Decision

[1] The appellant argues that the motion judge erred in finding that the respondent’s obligations as guarantor on the mortgage loan by the appellant to the numbered company 556614 Ontario Inc. ended on June 28, 2014, and that she was therefore not bound by subsequent extensions of the mortgage, made without notice to her.

[2] We disagree.

[3] The motion judge properly considered all of the documents that formed the parties’ agreement, including the standard terms, the mortgage agreement, and the mortgage schedule. It was conceded that if the standard terms applied, the respondent was liable to pay on the guarantee. Thus, the outcome turned on whether the standard terms were modified by the mortgage agreement.

[4] The motion judge found that they were. Although the mortgage schedule does not refer to a specific period of time, in setting out the guarantor’s obligations it refers to “the dates and times and in the manner above limited”. It was open to the motion judge to find that this limited the guarantor’s obligation in accordance with the terms set out in the mortgage agreement, thus modifying the standard terms. As a result, the duration of the guarantee was limited to the 12-month period set out in the mortgage agreement.

[5] We see no palpable and overriding error in the motion judge’s decision. His interpretation is reasonable and entitled to deference in this court.

[6] Accordingly, the appeal is dismissed.

[7] The respondent is entitled to costs in the agreed amount of $6,000, all inclusive.

“Grant Huscroft J.A.”

“Gary Trotter J.A.”

“S. Coroza J.A.”