BLANEY COURT OF APPEAL SUMMARIES (JULY 11-JULY 15)Van Halteren v. Deboer Tool Inc., 2016 ONCA 559 (CanLII)
[MacPherson, Cronk and Benotto JJ.A.]
John W. Findlay, for the appellant
Tyler H. McLean, for the respondent
Keywords: Contracts, Limitation Periods, Forgery, Summary Judgment
In late 2002, the appellant, Van Halteren, loaned $500,000 to the respondent, Deboer Tool. The loan was secured by a promissory note dated November 20, 2003 that the parties “re-signed”, on the same terms, on November 21, 2005 (the “2003/2005 Notes”). These are the “Original Promissory Note” and “Loan” referred to in the motion judge’s order.
The appellant maintained that the respondent signed a new, replacement promissory note, for the same loan, on November 21, 2008 (the “2008 Note”).
The respondent denied signing the 2008 Note and led expert handwriting evidence on the summary judgment motion that the 2008 Note contained a “simulation” or forged version of his signature.
The motion judge held that any claim based on the 2003/2005 Notes was statute-barred by the expiry of the applicable two-year limitation period because demand was made under the 2003/2005 Notes, at the latest, by February 20, 2006. Accordingly, the applicable limitation period expired on February 21, 2008. However, the appellant did not commence his action until October 2012, well after the expiry of the limitation period.
The motion judge, relying on the expert evidence proffered by the respondent, also held that the 2008 Note was a forgery. Consequently, no sustainable claim against the respondent could be advanced on the 2008 Note, in equity or in contract. The motion judge therefore dismissed the appellant’s action. He now appeals to this court.
1) Did the motion judge err in law by finding that the 2008 Note was a forgery?
2) Did the motion judge err in determining the availability of equitable relief (was it an issue requiring a trial)?
Holding: Appeal dismissed.
1) The respondent put the validity of the 2008 Note squarely in issue on the summary judgment motion, both in its counsel’s argument on the motion and by reason of the expert opinion evidence tendered by it concerning the authenticity of the 2008 Note. Further, the appellant also gave evidence on cross-examination regarding the 2008 Note. The appellant was obliged to put all relevant evidence upon which he would rely at trial before the motion judge in support of his claim, including in response to the respondent’s challenge to the validity of the 2008 Note. In turn, it was incumbent on the motion judge to determine whether summary judgment should be granted based on the whole of the record before him. He concluded, as he was entitled to do on the evidence on the motion, that the 2008 Note was a forgery. This finding was firmly rooted in the uncontradicted expert evidence before the motion judge. These findings, collectively, were dispositive of the appellant’s contract-based claim.
2) Firstly, the appellant’s pleading does not advance any claim in equity. Nor did the appellant’s notice of motion on the summary judgment motion. Second, no sustainable claim could be grounded on the 2003/2005 Notes – in contract or in equity – due to the expiry of the applicable limitation period.
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