Canadian Imperial Bank of Commerce v. Fuscana Corporation

Canadian Imperial Bank of Commerce v. Fuscana Corporation

The motion judge properly excluded paragraph 22 for insufficient disclosure, and because a genuine issue remained as to how much, if anything, Fuscana owed the Bank (the Bank must prove damages even if the assignment was absolute), the Bank's motion should be dismissed.

Citation
C41628
Parties
Plaintiff (respondent): Canadian Imperial Bank of Commerce; Defendant (appellant): Fuscana Corporation; Defendant (appellant): Joseph Salvatore Fusco
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
1 December 2004
Procedural Posture
Collection / Appeal From Superior Court of Justice (motion Judge) to Court of Appeal
Outcome
Appeal allowed; Bank's motion dismissed
Legal Topics
Summary Judgment, Assignment of Debt, Damages, Affidavit Evidence, Costs
Source Language
English
Civil Debt Collection Banking Civil Procedure Summary Judgment Assignment of Debt Damages Affidavit Evidence +1 more

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Parties

Canadian Imperial Bank of Commerce

Plaintiff (respondent)

Fuscana Corporation

Defendant (appellant)

Joseph Salvatore Fusco

Defendant (appellant)

Procedural Posture

Collection / Appeal From Superior Court of Justice (motion Judge) to Court of Appeal

Legal Issues

  1. 1 Whether paragraph 22 of the McCourt affidavit should be ignored for failure to disclose sources of knowledge
  2. 2 Whether there remained a genuine issue for trial as to the amount owed by Fuscana Corporation
  3. 3 Whether the assignee bank must still prove damages even if the assignment is absolute

Ratio Decidendi

The motion judge properly excluded paragraph 22 for insufficient disclosure, and because a genuine issue remained as to how much, if anything, Fuscana owed the Bank (the Bank must prove damages even if the assignment was absolute), the Bank's motion should be dismissed.

Court Disposition

Appeal allowed; Bank's motion dismissed

Orders

  • Appeal allowed
  • The Bank's motion is dismissed