Royal Bank of Canada v. Divito
Given the undisputed documentary evidence and related loan documents, and the absence of evidentiary material from the appellants to rebut the respondent's affidavit on mitigation, the trial judge was entitled to conclude DiVito signed the personal guarantee and to grant summary judgment; the appeal was therefore...
Source-derived case information.
- Citation
- C29128
- Parties
- Respondent: Royal Bank of Canada; Appellant: 1143245 ONTARIO INC. operating as AUTOBAHN 400; Appellant: Frank Divito
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 22 October 1998
- Procedural Posture
- Collection / Appeal
- Outcome
- Appeal dismissed
- Legal Topics
- Personal Guarantee, Summary Judgment, Mitigation, Evidence and Burden
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Royal Bank of Canada
Respondent
1143245 ONTARIO INC. operating as AUTOBAHN 400
Appellant
Frank Divito
Appellant
Procedural Posture
Collection / Appeal
Legal Issues
- 1 Existence and validity of personal guarantee
- 2 Sufficiency of evidence for summary judgment
- 3 Alleged mitigation as a defence to enforcement of guarantee
Ratio Decidendi
Given the undisputed documentary evidence and related loan documents, and the absence of evidentiary material from the appellants to rebut the respondent's affidavit on mitigation, the trial judge was entitled to conclude DiVito signed the personal guarantee and to grant summary judgment; the appeal was therefore dismissed with costs.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Summary judgment against the appellants affirmed
Full Case Text
Judgment text and source record
1 paragraphs
Royal Bank of Canada v. Divito Collection Decisions of the Court of Appeal Date 1998-10-22 Docket numbers C29128 Judges Catzman, Marvin Adrian; Rosenberg, Marc; O’Connor, Dennis Subject Civil Decision Content DATE: 19981022 DOCKET: C29128 COURT OF APPEAL FOR ONTARIO RE: ROYAL BANK OF CANADA (Respondent) and 1143245 ONTARIO INC. operating as AUTOBAHN 400 and FRANK DIVITO (Appellants) BEFORE: CATZMAN, ROSENBERG and O'CONNOR JJ.A. COUNSEL: Tibor Sarai, for the appellants Jeffrey C. Goldberg, for the respondent HEARD: October 20, 1998 ENDORSEMENT [1] Having regard to the careful circumscription of the evidence in Mr. DiVito's affidavit that he had "no recollection of being requested to sign or of signing a personal guarantee", to the undisputed fact that he signed a number of documents relating to the small business loan given by the respondent, and to the correspondence between the guarantee itself and terms appearing in those related documents, we are of the view that it was open to MacPherson J. to conclude, as he did, that Mr. DiVito signed the guarantee on which he was held liable to the respondent. [2] The suggested issue of mitigation, with which MacPherson J. did not deal in his endorsement, is completely answered in the affidavit filed by the respondent on the motion for summary judgment. The appellant put forward no evidence which would call into question the force of the respondent's evidence on that subject. [3] Accordingly, the appeal is dismissed with costs, fixed in the amount of $1,500.