Borkowsky v. Hogg

Borkowsky v. Hogg

The appeal was dismissed because the respondents proved Glocap had received the loaned funds and the appellants could not rely on their own failure to obtain approvals to avoid repayment; Hogg was found to have consented and to have contracted out of material alteration protection; appellants failed to prove any entitlement or quantum of settlement credit; accordingly summary judgment was correctly granted.

Citation
2018 ONCA 325
Parties
Plaintiff (respondent): Cynthia Borkowsky; Plaintiff (respondent): CMS Holdings Inc.; Plaintiff (respondent): Arif Hirji; Plaintiff (respondent): Selina Hirji; Plaintiff (respondent): Dr. Adam Natshen Medicine Professional Corporation; Plaintiff (respondent): Dr. Frank Papanikolaou Medicine Professional Corporation; Plaintiff (respondent): Dr. Chantelle Ung Medicine Professional Corporation; Plaintiff (respondent): Chantelle Ung; Plaintiff (respondent): 1281005 Ontario Inc.; Plaintiff (respondent): Nick Veronico; Plaintiff (respondent): Savoula Veronico; Plaintiff (respondent): Shelley Murphy; Plaintiff (respondent): Katherine Stone; Plaintiff (respondent): James Ashbridge; Defendant (appellant): Chris Hogg also known as Chris R. Hogg; Defendant (appellant): Nabil Bader also known as Nabil A. Bader; Defendant (appellant): Glocap Management Inc.; Defendant (appellant): Strategic Alliance, FZE
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
29 March 2018
Procedural Posture
Civil Appeal / Appeal From Superior Court of Justice (summary Judgment)
Outcome
Appeal dismissed
Legal Topics
Summary Judgment, Enforceability of Guarantees, Material Alteration Defense, Consent of Corporate Controller, Allocation of Settlement Credit, Receipt of Funds/quantum
Source Language
English
Civil Contract Law Equity Procedure Summary Judgment Enforceability of Guarantees Material Alteration Defense Consent of Corporate Controller +2 more

Case Brief

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Parties

Cynthia Borkowsky

Plaintiff (respondent)

CMS Holdings Inc.

Plaintiff (respondent)

Arif Hirji

Plaintiff (respondent)

Selina Hirji

Plaintiff (respondent)

Dr. Adam Natshen Medicine Professional Corporation

Plaintiff (respondent)

Dr. Frank Papanikolaou Medicine Professional Corporation

Plaintiff (respondent)

Dr. Chantelle Ung Medicine Professional Corporation

Plaintiff (respondent)

Chantelle Ung

Plaintiff (respondent)

1281005 Ontario Inc.

Plaintiff (respondent)

Nick Veronico

Plaintiff (respondent)

Savoula Veronico

Plaintiff (respondent)

Shelley Murphy

Plaintiff (respondent)

Katherine Stone

Plaintiff (respondent)

James Ashbridge

Plaintiff (respondent)

Chris Hogg also known as Chris R. Hogg

Defendant (appellant)

Nabil Bader also known as Nabil A. Bader

Defendant (appellant)

Glocap Management Inc.

Defendant (appellant)

Strategic Alliance, FZE

Defendant (appellant)

Procedural Posture

Civil Appeal / Appeal From Superior Court of Justice (summary Judgment)

Legal Issues

  1. 1 Whether respondents were entitled to repayment of funds advanced to Glocap (had and received)
  2. 2 Whether appellants could rely on their failure to obtain approvals to avoid liability
  3. 3 Whether Hogg consented to guarantees and whether there was a material alteration that discharged guarantor

Ratio Decidendi

The appeal was dismissed because the respondents proved Glocap had received the loaned funds and the appellants could not rely on their own failure to obtain approvals to avoid repayment; Hogg was found to have consented and to have contracted out of material alteration protection; appellants failed to prove any entitlement or quantum of settlement credit; accordingly summary judgment was correctly granted.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Motion judge's summary judgment decision affirmed