



COURT OF APPEAL FOR ONTARIO

CITATION: Borkowsky v. Hogg, 2018 ONCA 325

DATE: 20180329

DOCKET: C64274

Pepall, Brown and Trotter JJ.A.

BETWEEN

Cynthia
    Borkowsky,
CMS Holdings Inc., Arif Hirji, Selina Hirji,

Dr. Adam Natshen Medicine Professional Corporation,

Dr. Frank Papanikolaou Medicine Professional Corporation,

Dr. Chantelle Ung Medicine Professional Corporation, Chantelle
    Ung,

1281005 Ontario Inc.
, Nick Veronico,
Savoula Veronico, Shelley Murphy,

Katherine
    Stone and James Ashbridge

Plaintiffs

(Respondents)

and

Chris Hogg also known as Chris R. Hogg
,

Nabil
    Bader also known as Nabil A. Bader,
Glocap Management
    Inc.

and Strategic Alliance,
    FZE

Defendants

(Appellants)

Angela Assuras, for the appellants

Ron Aisenberg, for the respondents

Heard: March 27, 2018

On appeal from the judgment of Justice Gisele M. Miller of
    the Superior Court of Justice, dated August 8, 2017.

APPEAL BOOK ENDORSEMENT


[1]

We see no merit in this appeal.  The respondents lent funds to Glocap
    and they sued for the funds that were had and received by Glocap.  The motion
    judge correctly rejected the argument that the appellants could rely on their
    own failures to obtain any necessary approvals so as to deny their obligations
    to the respondents.

[2]

As for the guarantee issue, Hogg was the controlling shareholder of Glocap,
    signed each of the Loan Agreements and one of the Loan Amendment Agreements on
    behalf of Glocap.  As found by the motion judge, there was no evidence that
    Hogg did not consent and there was ample evidence in the record from which it
    could be inferred that he had consented.  It cannot be said that there was any
    unilateral alteration of risk.  Moreover, the motion judge also made a finding
    that Hogg had contracted out of the material alteration protection in the
    guarantees and we see no palpable and overriding error.

[3]

Lastly, the settlement of a related action did not allocate amounts for
    the claims of the 65 plaintiffs in that action.  In the within action, the respondents
    proved their entitlement to repayment of the funds advanced to Glocap and
    provided a formula for allocation of credit.  The burden was on the appellants
    to establish the quantum of the appropriate credit amount they sought and they
    failed to meet this burden.  They have no basis now to dispute that credit.

[4]

There was no need for a trial in this case and the motion judge
    correctly disposed of the action on the basis of a summary judgment.

[5]

The appeal is dismissed.  The appellants are to pay the respondents
    $12,000 on a partial indemnity scale inclusive of disbursements and applicable taxes.


