Business Development Bank of Canada v. Nap Corp.

Business Development Bank of Canada v. Nap Corp.

The appeal was dismissed because the court found the compelled RBC records attached to the impugned affidavit established NAP's default to RBC which triggered default to BDC, the appellants failed to adduce admissible evidence creating a genuine issue for trial or to justify an adjournment or stay, the motion judge properly received the affidavit and could draw adverse inferences from the appellants' failures, thus summary judgment in favour of BDC was correct.

Citation
2013 ONCA 608
Parties
Plaintiff (respondent): Business Development Bank of Canada; Defendant (appellant): Nap Corporation; Defendant (appellant): Arie Tall
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
3 October 2013
Procedural Posture
Civil Collection (appeal) / Appeal From Summary Judgment (court of Appeal)
Outcome
Appeal dismissed
Legal Topics
Summary Judgment, Default, Subordination Agreement, Production of Documents, Compellability of Records, Adjournment, Stay, Adverse Inference, Costs
Source Language
English
Civil Commercial Law Banking Civil Procedure Appeals Summary Judgment Default Subordination Agreement +6 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 1 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Business Development Bank of Canada

Plaintiff (respondent)

Nap Corporation

Defendant (appellant)

Arie Tall

Defendant (appellant)

Procedural Posture

Civil Collection (appeal) / Appeal From Summary Judgment (court of Appeal)

Legal Issues

  1. 1 Whether there was a genuine issue for trial on the issue of default
  2. 2 Whether RBC business records obtained under compulsion and attached to a solicitor's affidavit were admissible
  3. 3 Whether the motion judge erred in refusing an adjournment or stay to permit the appellants to file further evidence

Ratio Decidendi

The appeal was dismissed because the court found the compelled RBC records attached to the impugned affidavit established NAP's default to RBC which triggered default to BDC, the appellants failed to adduce admissible evidence creating a genuine issue for trial or to justify an adjournment or stay, the motion judge properly received the affidavit and could draw adverse inferences from the appellants' failures, thus summary judgment in favour of BDC was correct.

Court Disposition

Appeal dismissed

Orders

  • Summary judgment affirmed in favour of Business Development Bank of Canada for outstanding balance of $130,091.63
  • Costs to respondent in the agreed amount of $15,044.28, all inclusive