Oren Haim Chaimovitch

This is a costs endorsement following an appeal and cross-appeal.

The Court of Appeal for Ontario determined that success on both the appeal and cross-appeal was divided, and therefore ordered that each party bear their own costs.

The appellants, Pamella and Gregory Radwan, appealed a summary judgment granted to The Energy Credit Union Limited concerning a defaulted "on demand" mortgage.

The Radwans argued the motion judge failed to address their evidence regarding standard charge terms, Pamella Radwan's sophistication, and issues of credibility, and that the reasons were inadequate.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's findings that the Radwans signed a valid "on demand" agreement, benefited from the funds, and defaulted.

The court affirmed that the lender was not obligated to insist on independent legal advice and that the reasons adequately explained the decision.

The Bank of Nova Scotia brought a motion for summary judgment against 1934047 Ontario Inc. and Ogieriakhi Omozusi for outstanding debts under an overdraft facility, a term loan, and a credit line, all of which were in default.

Omozusi had also guaranteed the corporation's debts.

The defendants acknowledged the indebtedness and default but sought a stay of enforcement and leave to pay at a negotiated rate, and also sought to amend their statement of defence to include a counterclaim for business interruption losses.

The court found no genuine issue requiring a trial, affirming the Bank's contractual right to demand full repayment.

The proposed counterclaim was deemed without merit and leave to amend was denied.

Summary judgment was granted in favour of the Bank for the full amounts owing plus interest.

The plaintiff bank brought a motion for summary judgment against guarantors of a corporate loan following default under a small business term loan agreement.

The responding guarantors argued they believed each was liable only for one-quarter of the guaranteed amount and claimed they had not received independent legal advice before signing the guarantees.

The court held that absent fraud, misrepresentation, undue influence, or a valid non est factum defence, the bank had no obligation to ensure the guarantors obtained independent legal advice.

The court further found that the relationship between the bank and the guarantors was purely commercial and did not give rise to any duty of care.

Because the guarantees contained entire agreement clauses and the alleged misunderstanding did not render the documents fundamentally different from what was signed, the defences failed and summary judgment was granted.