Bank of Montreal v. Maple City Ford Sales (1986) Limited
The appeal was dismissed because the trial judge's factual findings on misrepresentation, admissibility of parol evidence and the reasonableness of notice were supported by the evidence and fatal to the appellants' case; the contention based on paragraph 4 of the forbearance agreement did not assist because it...
Source-derived case information.
- Citation
- C38989, C38990, C38991, C38992, M31878
- Parties
- Respondent: Bank of Montreal; Appellant: Maple City Ford Sales (1986) Limited; Appellant: David Brock McKeand; Appellant: Paul T. McKeand; Appellant: Katherine Eva Marion McKeand; Appellant: Malger Leasing; Respondent: First City Trust Company
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 10 November 2004
- Procedural Posture
- Civil Appeal (collection) / Appeal to Court of Appeal From Superior Court of Justice Judgment
- Outcome
- Appeal dismissed
- Legal Topics
- Misrepresentation, Parol Evidence Rule, Notice, Forbearance Agreement, Reasonable Apprehension of Bias, Security for Costs, Award of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bank of Montreal
Respondent
Maple City Ford Sales (1986) Limited
Appellant
David Brock McKeand
Appellant
Paul T. McKeand
Appellant
Katherine Eva Marion McKeand
Appellant
Malger Leasing
Appellant
First City Trust Company
Respondent
Procedural Posture
Civil Appeal (collection) / Appeal to Court of Appeal From Superior Court of Justice Judgment
Legal Issues
- 1 Whether appellants established misrepresentation by the respondent
- 2 Whether parol evidence was admissible to contradict written terms
- 3 Whether the notice given by the respondent was reasonable
Ratio Decidendi
The appeal was dismissed because the trial judge's factual findings on misrepresentation, admissibility of parol evidence and the reasonableness of notice were supported by the evidence and fatal to the appellants' case; the contention based on paragraph 4 of the forbearance agreement did not assist because it addressed future terms rather than past representations; and the bias motion was abandoned.
Court Disposition
Appeal dismissed
Orders
- Motion alleging reasonable apprehension of bias dismissed as abandoned
- Appeal dismissed with costs
Full Case Text
Judgment text and source record
1 paragraphs
Bank of Montreal v. Maple City Ford Sales (1986) Limited Collection Decisions of the Court of Appeal Date 2004-11-10 Docket numbers C38989, C38990, C38991, C38992, M31878 Judges Catzman, Marvin Adrian; Feldman, Kathryn N.; Blair, Robert Ashley Subject Civil Decision Content DATE: 20041110 DOCKETS: C38989 (M31878), C38990, C38991 and C38992 COURT OF APPEAL FOR ONTARIO C38989 (M31878) RE: BANK OF MONTREAL (Respondent) -and- MAPLE CITY FORD SALES (1986) LIMITED, DAVID BROCK McKEAND, PAUL T. McKEAND and KATHERINE EVA MARION McKEAND (Appellants) C38990 AND RE: MALGER LEASING (Appellant) -and- BANK OF MONTREAL (Respondent) C38991 AND RE: FIRST CITY TRUST COMPANY (Respondent) -and- PAUL T. McKEAND and DAVID BROCK McKEAND (Appellants) -and- BANK OF MONTREAL (Respondent) C38992 AND RE: FIRST CITY TRUST COMPANY (Respondent) -and- MALGER LEASING (Appellant) -and- BANK OF MONTREAL (Respondent) BEFORE: CATZMAN, FELDMAN and BLAIR JJ.A. COUNSEL: Charles Owen Spettigue Jr. for the appellants Tony Van Klink and Alissa K. Mitchell for the respondent Bank of Montreal HEARD AND ENDORSED: November 9, 2004 On appeal from the judgment of Justice Eileen E. Gillese of the Superior Court of Justice, sitting without a jury, dated September 17, 2002. APPEAL BOOK ENDORSEMENT [1] At the opening of the argument of the appeal, Mr. Spettigue advised that he was not pursuing the motion, dated November 2, 2004, grounded on the alleged reasonable apprehension of bias on the part of the trial judge. That motion is dismissed as an abandoned motion. [2] In her thorough and careful reasons for judgment, the trial judge canvassed all of the issues that were raised by the appellants at trial and repeated on their behalf on this appeal. Her findings of fact on the issues of misrepresentation, admission of parol evidence and the reasonableness of the notice given by the respondent were supported by the evidence before her and are fatal to the appellants’ position on this appeal. The submission made by Mr. Spettigue based on paragraph 4 of the forebearance agreement – which submission was not made at trial – does not assist the appellants’ position because it contemplates future terms and conditions rather than past representations. [3] The appeal is dismissed with costs. [4] The costs of the appeal are fixed in the sum of $17,500, all inclusive. The sum of $15,000 paid into court, together with interest thereon, will be paid out of court to the respondent and applied against the amount of $17,500, referred to above. Counsel for the appellants does not oppose the making of an order for payment out of court of the sum of $55,000, plus accrued interest, paid into court as security for costs of the trial, and an order will issue accordingly.