Key Points

1. Summary Judgment Motion:

   • TD Bank granted a loan to 2275518 Ontario Inc. (Borrower) backed by guarantees from the corporate guarantors and Grace Diena.
   • The loan defaulted.
   • The Guarantors claimed their lawyer, Jerome Stanleigh, failed to register the bank's security in first priority, a condition crucial for executing the guarantees.
   • The Guarantors filed a third-party claim against Stanleigh for negligence.

2. Procedural History:

   • TD Bank filed for summary judgment.
   • The motion judge found that there were issues requiring a mini-trial.
   • Oral evidence was presented by Grace Diena, Daniel Diena, and Stanleigh.

3. Decision of the Motion Judge:

   • The judge ruled there was no genuine issue requiring a trial on the misrepresentation defense.
   • He concluded Stanleigh did not make false representations or receive instructions to register TD Bank’s security in a first priority position.
   • Summary judgment was granted in favor of TD Bank.

Issues on Appeal

1. Oral Evidence from Non-Party:

   • Appellants argued it was an error to order testimony from Stanleigh, a non-party.
   • The court found Rule 20.04(2.2) allows for such evidence.

2. Fact and Credibility Findings:

   • Appellants claimed findings regarding Stanleigh created a risk of inconsistent results in the third-party claim.
   • The court ruled the motion judge’s findings appropriate and not prejudicial.

3. Granting Summary Judgment Prior to Third-Party Claim Determination:

   • Appellants argued this prejudiced their interests.
   • The court found the summary judgment appropriate as the third-party claim did not impede TD Bank’s right to summary judgment.

Court of Appeal Decision

• The appeal was dismissed.
• Costs awarded to TD Bank, amounting to $69,901.24 on a solicitor and client basis as per the guarantees.