Van Nispen v. McCarron & Chobotiuk Financial Services Inc.

Van Nispen v. McCarron & Chobotiuk Financial Services Inc.

The motion judge properly exercised her discretion in refusing leave to file the late affidavit; the evidence before the court did not raise a genuine issue requiring trial on the promissory notes or the counterclaim because the appellant's assertions were bald and unsubstantiated; the proposed fresh evidence was available before the motion and therefore did not meet the test for admission, so the summary judgment and dismissal of the counterclaim were correctly upheld.

Citation
2020 ONCA 146
Parties
Plaintiffs/defendants by Counterclaim (respondents): Robert Van Nispen and Donna Van Nispen; Defendant/plaintiff by Counterclaim (appellant): McCarron & Chobotiuk Financial Services Inc.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
24 February 2020
Procedural Posture
Collection/civil / Appeal From Summary Judgment (court of Appeal)
Outcome
Appeal dismissed.
Legal Topics
Promissory Notes, Summary Judgment, Fresh Evidence/admission of Affidavit, Costs
Source Language
English
Civil Contract Procedural Law Appeals Promissory Notes Summary Judgment Fresh Evidence/admission of Affidavit Costs

Case Brief

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Parties

Robert Van Nispen and Donna Van Nispen

Plaintiffs/defendants by Counterclaim (respondents)

McCarron & Chobotiuk Financial Services Inc.

Defendant/plaintiff by Counterclaim (appellant)

Procedural Posture

Collection/civil / Appeal From Summary Judgment (court of Appeal)

Legal Issues

  1. 1 Whether the motion judge erred in refusing leave under r.39.02 to deliver a further affidavit after cross-examination
  2. 2 Whether the evidence raised a genuine issue requiring a trial on the promissory notes
  3. 3 Whether the proposed fresh evidence met the test for admission (availability and due diligence)

Ratio Decidendi

The motion judge properly exercised her discretion in refusing leave to file the late affidavit; the evidence before the court did not raise a genuine issue requiring trial on the promissory notes or the counterclaim because the appellant's assertions were bald and unsubstantiated; the proposed fresh evidence was available before the motion and therefore did not meet the test for admission, so the summary judgment and dismissal of the counterclaim were correctly upheld.

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed
  • Summary judgment granting judgment on two promissory notes and dismissing the counterclaim is affirmed