Court of Appeal for Ontario

Date: 20220119 Docket: C69602

Before: Pardu, Roberts and Miller JJ.A.

Between:

Wharton Holdings Limited Plaintiff (Respondent)

and

Norman Balletto Defendant (Appellant)

Counsel: Norman N. Balletto, acting in person James S.G. Macdonald, for the respondent

Heard: January 17, 2022 by video conference

On appeal from the judgment of Regional Senior Justice Leonard Ricchetti of the Superior Court of Justice dated May 31, 2021, with reasons reported at 2021 ONSC 4068.

Reasons for Decision

[1] The appellant appeals from the summary judgment in the amount of $102,862.95, plus interest, granted to the respondent. At issue is the validity and enforceability of a promissory note given by the appellant to the predecessor of the amalgamated respondent (“the respondent”).

[2] At the close of the appellant’s oral submissions, we advised the parties that the appeal was dismissed with reasons to follow. These are those reasons.

[3] The judgment amount of $102,862.95 was the principal balance owed by the appellant under a promissory note, dated January 8, 2017 (“the promissory note”). The parties entered into a written agreement and the appellant gave the promissory note in consideration for the business assets of the respondent’s commercial ink product manufacturing business. The appellant has owned and operated a commercial ink manufacturing business for more than four years using the purchased assets and the respondent’s trade name. He made payments to the respondent over the course of 2017 and 2018 in the total amount of $32,136.15. No payments were made after November 30, 2018. The respondent made demands for payment and then started an action in December 2019. The appellant delivered a statement of defence and counterclaim in March 2020 and issued a third party claim in April 2020.

[4] The appellant contends that the promissory note is unenforceable because of the respondent’s alleged oral representations that the appellant maintains amount to necessary and unfulfilled conditions for the payment of the promissory note. According to the appellant, these unfulfilled conditions include that the respondent agreed to provide training to run an ink business and ensure customer loyalty. The appellant submits the motion judge erred in failing to grant him an adjournment to examine the respondent to obtain evidence supporting his allegations and in failing to find that the promissory note was unenforceable because the alleged conditions were not fulfilled. In oral argument, the appellant submits further that the motion judge erred in finding that he failed to make payments under the promissory note when the parties had agreed that he could stop making payments until they resolved their dispute concerning the alleged unfulfilled conditions, and in finding that the appellant had no evidence to support his allegations in light of the evidence filed at the motion.

[5] We do not accept these submissions.

[6] First, the motion judge’s refusal of the appellant’s adjournment request was reasonable in the circumstances. He gave detailed reasons for denying it, including the absence of any prior request or attempt by the appellant (who was represented throughout by counsel) to set up an examination for discovery or an examination or cross-examination of the respondent on its affidavit in the many months before the return date of the motion. The motion judge was satisfied that he could make a fair and just determination of the appellant’s current liability under the promissory note. Absent error, an appellate court cannot interfere with the motion judge’s reasonable exercise of his discretion to refuse an adjournment. We see no error in the motion judge’s determination on this issue.

[7] Second, the motion judge carefully reviewed the appellant’s allegations and his supporting affidavit that the respondent’s oral representations varied the express terms of the promissory note and resulted in conditions precedent to its enforceability. The motion judge did not find that the appellant had no evidence but, rather, he characterized and rejected the appellant’s evidence as “bald allegations” that lacked credibility and reliability. He found that the appellant failed to provide any cogent or corroborative evidence in support of the alleged oral representations that, he noted, were absent from the written agreement and the promissory note. He also noted that the appellant’s subsequent course of conduct was inconsistent with the alleged oral representations: the appellant acknowledged liability on the promissory note by making payments for more than a year and then by asking in 2018 for an extension of its due date; and, although the unfulfillment of the alleged oral representations would have been apparent shortly after the closing in January 2017, the appellant did not raise any complaint for more than two years and only in response to the respondent’s demand for payment of the monies owing under the promissory note. The motion judge concluded that the appellant was effectively asking that the court “re-write the terms of the Agreement to impose new and different terms”, which he declined to do.

[8] We also reject the appellant’s argument that the respondent’s action was somehow premature or that he stopped making payments because of an alleged standstill agreement with the respondent. The appellant has not established such an agreement was made pending resolution of the parties’ dispute. In any event, there was no agreement resolving the dispute and altering the amount due under the promissory note. As a result, the respondent was entitled to insist on full payment of the amount owing. There is no dispute that the appellant has made no payments past 2018 and contests in these proceedings his obligation to continue to make any payments under the promissory note.

[9] The appellant repeats basically the same arguments before this court that the motion judge rejected. Essentially, the appellant asks this court to redo the motion judge’s findings without pointing to any error that would permit appellate intervention. The motion judge’s findings were open to him on the record and are owed deference on appeal. We see no basis to intervene.

Disposition

[10] The appeal is therefore dismissed.

[11] The respondent is entitled to partial indemnity costs from the appellant in the amount of $5,000, inclusive of disbursements and applicable taxes.

“G. Pardu J.A.”

“L.B. Roberts J.A.”

“B.W. Miller J.A.”