The Guarantee Company of North America v. Ciro Excavating & GradingLtd.

The Guarantee Company of North America v. Ciro Excavating & GradingLtd.

The motion judge did not err: the evidentiary record established the appellant signed the indemnity agreement, there was no evidence of forgery and the appellant was careless in signing so non est factum fails; the refusals were not material and the appellant failed to pursue procedural avenues to obtain answers, therefore summary judgment was properly granted and the appeal is dismissed.

Citation
2016 ONCA 125
Parties
Plaintiff (respondent): The Guarantee Company of North America; Defendant: Ciro Excavating & Grading Ltd.; Defendant: V.B. Trucking and Contracting Inc.; Defendant: Soil Logistics Environmental Inc.; Defendant (appellant): Stella Barillari; Defendant: The Estate of Ciro Barillari
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
12 February 2016
Procedural Posture
Civil / Appeal From Summary Judgment Motion (court of Appeal)
Outcome
Appeal dismissed; summary judgment affirmed for the respondent in the amount of $1,170,312.47; respondent awarded costs of appeal.
Legal Topics
Summary Judgment, Indemnity Agreement, Non Est Factum, Refusals Motion, Adverse Inference, Costs
Source Language
English
Civil Litigation Contract Law Civil Procedure Summary Judgment Indemnity Agreement Non Est Factum Refusals Motion Adverse Inference +1 more

Case Brief

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Parties

The Guarantee Company of North America

Plaintiff (respondent)

Ciro Excavating & Grading Ltd.

Defendant

V.B. Trucking and Contracting Inc.

Defendant

Soil Logistics Environmental Inc.

Defendant

Stella Barillari

Defendant (appellant)

The Estate of Ciro Barillari

Defendant

Procedural Posture

Civil / Appeal From Summary Judgment Motion (court of Appeal)

Legal Issues

  1. 1 Whether the motion judge erred in refusing to draw an adverse inference from a witness's refusals to answer questions
  2. 2 Whether the appellant was entitled to an oral hearing/ viva voce evidence on the summary judgment motion
  3. 3 Whether the defence of non est factum is available to the appellant

Ratio Decidendi

The motion judge did not err: the evidentiary record established the appellant signed the indemnity agreement, there was no evidence of forgery and the appellant was careless in signing so non est factum fails; the refusals were not material and the appellant failed to pursue procedural avenues to obtain answers, therefore summary judgment was properly granted and the appeal is dismissed.

Court Disposition

Appeal dismissed; summary judgment affirmed for the respondent in the amount of $1,170,312.47; respondent awarded costs of appeal.

Orders

  • Appeal dismissed
  • Summary judgment in favour of the respondent in the amount of 1170312.47 CAD