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The Ontario Court of Appeal dismissed an appeal in a loan default and guarantee case, upholding summary judgment for the bank and awarding costs of $7,500.
Appeal dismissed in an earn-out dispute over whether a sale leaseback and factoring arrangement triggered accelerated payment provisions under a share purchase agreement.
The court held Bella Valley must pay $2.02 million for the winery inventory, found Walter was wrongfully dismissed, and awarded WTJ Inc. unpaid consulting fees.
The court extended the CCAA stay to December 17, 2025, amended the order to allow ICBC arrears repayment by November 30, and raised the administration charge to $200,000.
The motion judge did not err: the appellants failed to exercise reasonable diligence in seeking cross-examination under r.39.03(3), their bad faith allegations were unsupported by credible evidence, and therefore the personal guarantee was valid and enforceable such that summary judgment on its validity was appropriate; the appeal is dismissed.
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The appeal is dismissed because the appellant admitted the debt, no payments had been made, there was no evidence the appellant could honour the proposed reinstatement and pay arrears, and therefore no genuine issue for trial existed making summary judgment proper.
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Given the divided success on the appeal and cross-appeal and the parties' inability to agree on costs, the Court exercised its discretion to order that each party shall bear its own costs.
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Because none of the parties enjoyed any degree of success before this court and the appeals and cross-appeals were argued together, the court declined to parse the matters for differential costs and ordered that there be no award of costs.
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The trial judge did not err in finding Liquid Capital failed, on the balance of probabilities, to prove Mr. Zito participated in the fraud; the evidence accepted at trial (including uncontradicted denials by the admitted fraudsters and Zito's credible testimony) was sufficient for that conclusion; therefore no reversible error on liability and no basis to disturb the trial judge's exercise of discretion on costs or adverse inference or recusal; appeal dismissed and leave to appeal costs denied.
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The court found unauthorized transfers from 685946 B.C. Ltd. constituted conversion and also enforced an oral $400,000 loan agreement against 1036861 B.C. Ltd. and Nick Nijjar.
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