7.3: Summary Judgment (Application and decision)

Case Summary

This was a Summary Judgment Application by a lender against an individual. One of the individual Defendants, Steven Agar, was the principal and 45 percent owner of CSM Media Inc. (“CSM”) and negotiated a loan with Arbutus Capital Corporation. This contract was immediately assigned “for value” to Arbutus Capital Leasing Ltd. and payments were made for a while before the loan went into default. Another individual Defendant, Gary Nash, who worked with CSM and was considered a part owner, claimed that he thought he was signing the loan agreement for the company and would not be held personally liable.

After briefly considering the evidence presented by Mr. Nash, Master Schlosser noted that a Respondent to a Summary Judgment Application only had to demonstrate that he had an “arguable case” in order to avoid Judgment. Further, he did not have to prove his case on the ordinary civil standard. Master Schlosser held that Mr. Nash demonstrated an arguable case only by the smallest of margins, as there was just enough to make the Plaintiff’s case fall short of the very high standard required of a Plaintiff in a Summary Judgment Application. Master Schlosser did note that some of the evidence seemed to be “incredible or contradictory” and had the potential to detract from, rather than enhance, Mr. Nash’s position; however, the Court was not permitted to assess credibility or weigh evidence in a Summary Judgment Application.

Finally, Rule 1.2(2)(c) was peripherally referred to by Master Schlosser, but not considered. Master Schlosser concluded by stating that Mr. Nash should reflect on Rule 1.2(2)(c) and consider the possibility of settlement. Master Schlosser stated that Mr. Nash rolled the dice once by not reading the contract and was about to “roll them again when the lawsuit proceeds”.

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