1560032 Ontario Ltd. v. Arcuri, (2006) 212 O.A.C. 95 (CA)

• Judge: Doherty, Blair and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 09, 2006
• Jurisdiction: Ontario
• Citations: (2006), 212 O.A.C. 95 (CA)

1560032 Ont. v. Arcuri (2006), 212 O.A.C. 95 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. JN.065

1560032 Ontario Limited c.o.b. as Acuity Digital Imaging (plaintiff/appellant) v. Crocetta Arcuri (defendant/respondent in appeal)

(C43699)

Indexed As: 1560032 Ontario Ltd. v. Arcuri

Ontario Court of Appeal

Doherty, Blair and LaForme, JJ.A.

June 9, 2006.

Summary:

The plaintiff sued the defendant, relying on a personal guarantee by the defendant respecting a company's debt. The trial judge dismissed the action. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal.

Guarantee and Indemnity - Topic 128

The contract - Formation of contract - Non est factum - Lack of consensus - The plaintiff sued the defendant, relying on a personal guarantee by the defendant respecting a company's debt - The trial judge held that the plaintiff could not rely on the guarantee - The Ontario Court of Appeal dismissed the plaintiff's appeal - The signed document was binding on the defendant only if it reflected a true consensus - The trial judge implicitly found that the plaintiff knew or ought to have known that the defendant would not have read the document - The trial judge found that the plaintiff did nothing to bring the terms of the guarantee to the defendant's attention - Indeed, the plaintiff argued that it had no responsibility to do so - The plaintiff knew or ought to have known that the contents of the document insofar as the guarantee was concerned did not represent the defendant's true intention.

Cases Noticed:

Tilden Rent-A-Car Co. v. Clendenning (1978), 18 O.R.(2d) 601 (C.A.), refd to. [para. 2].

Counsel:

Alan B. Dryer, for the appellant;

Gordon Bent, for the respondent.

This appeal was heard on June 9, 2006, before Doherty, Blair and LaForme, JJ.A., of the Ontario Court of Appeal. The court's decision was endorsed on the appeal record on that date and released on June 14, 2006.