Court File and Parties
COURT FILE NO.: 72/02
DATE: 20020926
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ARCHIE CAMPBELL, MCNEELY, ELLEN MACDONALD JJ.
B E T W E E N:
TD WATERHOUSE INVESTOR SERVICES (CANADA) INC.
Respondent
- and -
STEVE E. C. LAZARIDIS
Appellant
Counsel:
Naomi S. D. Solomon, for the Respondent
Charles C. Mark, Q.C., for the Appellant
HEARD: September 26, 2002
Oral Reasons for Judgment
ARCHIE CAMPBELL J.: (Orally)
[1] It is unnecessary to recite the facts which are reflected in the factums.
[2] The decision did not turn on any non-production of advertisements and the learned motions judge was prepared to assume, for the purpose of his decision, that the 60 second representation had in fact been made.
[3] The decision was based on the lack of evidence that the trades were not carried out within the time frame and further that there was nothing to indicate that if the trades were carried out within the time frame, the defendant would not have incurred any loss.
[4] The conclusory statement in the defendant's affidavit that there was delay and a consequent loss does not in any way support the issue raised in the Statement of Defence and counter-claim, which does not allege loss through delay.
[5] In any event, conclusory statements of fact and belief are not a sufficient basis to survive a summary judgement motion. The responding party must put his best foot forward in the sense of advancing an organized set of facts that supports the case as pleaded. As Borins J.A. said in Dawson v. Rexcraft Storage and Warehouse Inc. (1988), 164 D.L.R. (4th) 257 (Ont. C.A.) at par. 17:
"…there is an evidentiary burden on the responding party who may not rest on the allegations or denials in the party's pleadings, but must present by way of affidavit, or other evidence, specific facts showing that there is a genuine issue for trial".
[6] As for restriction of cross-examination, it is far from clear that there was any problem that affected the result and in any event it is now too late, not having moved to compel answers and so forth, to raise this issue now as a collateral attack on the judgment.
[7] In light of the defendant's affidavit and the lack of any genuine conflict of evidence, it cannot be said that the learned motions judge erred and the appeal is therefore dismissed.
[8] Costs are fixed at $5000.
Date of Reasons for Judgment: September 26, 2002
Date of Release: September 27, 2002
COURT FILE NO.: 72/02
DATE: 20020926
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ARCHIE CAMPBELL, MCNEELY,
ELLEN MACDONALD JJ.
B E T W E E N:
TD WATERHOUSE INVESTOR SERVICES (CANADA) INC.
Respondent
- and -
STEVE E. C. LAZARIDIS
Appellant
ORAL REASONS FOR JUDGMENT
Date of Reasons for Judgment: September 26, 2002
Date of Release: September 27, 2002