Royal Bank of Canada v. Tolzmann

Royal Bank of Canada v. Tolzmann

The summary judgment was set aside because the respondent conceded the evidence was insufficient to establish delivery of the demand and therefore there was a genuine issue for trial; the deficiency was evidential/factual (not a legal issue suitable for issue estoppel), so dismissing the entire action was inappropriate; appellant awarded costs of the appeal and conditional costs of the application below under Rule 14-1(12)(b).

Citation
2021 BCCA 383
Parties
Respondent (plaintiff): Royal Bank of Canada; Appellant (defendant): Josip Tolzmann
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
29 September 2021
Procedural Posture
Civil Appeal From Summary Judgment / Appeal From Supreme Court Summary Judgment Order
Outcome
Appeal allowed; summary judgment set aside and substituted with an order dismissing the summary judgment application; action against appellant not dismissed; appellant awarded costs of the appeal and conditional costs of the application below.
Legal Topics
Summary Judgment, Demand on Guarantee, Issue Estoppel, Costs
Source Language
English
Civil Procedure Contract Law Guarantee Law Appeals Summary Judgment Demand on Guarantee Issue Estoppel Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Royal Bank of Canada

Respondent (plaintiff)

Josip Tolzmann

Appellant (defendant)

Procedural Posture

Civil Appeal From Summary Judgment / Appeal From Supreme Court Summary Judgment Order

Legal Issues

  1. 1 Whether the chambers judge properly found the respondent delivered a demand on the guarantee
  2. 2 Whether summary judgment was appropriate on the evidence
  3. 3 Whether the entire action against the appellant should be dismissed

Ratio Decidendi

The summary judgment was set aside because the respondent conceded the evidence was insufficient to establish delivery of the demand and therefore there was a genuine issue for trial; the deficiency was evidential/factual (not a legal issue suitable for issue estoppel), so dismissing the entire action was inappropriate; appellant awarded costs of the appeal and conditional costs of the application below under Rule 14-1(12)(b).

Court Disposition

Appeal allowed; summary judgment set aside and substituted with an order dismissing the summary judgment application; action against appellant not dismissed; appellant awarded costs of the appeal and conditional costs of the application below.

Orders

  • Order setting aside the Supreme Court summary judgment as against Josip Tolzmann
  • Order substituting dismissal of the summary judgment application against Josip Tolzmann