



COURT OF APPEAL
    FOR ONTARIO

CITATION: Royal Bank of
    Canada v. 1643937 Ontario Inc., 2021 ONCA 98

DATE: 20210219

DOCKET: C67540

Doherty, Roberts
    and Harvison Young JJ.A.

BETWEEN

Royal Bank of Canada

Plaintiff (Respondent)

and

1643937 Ontario Inc.
,
Lorraine
    MacDonald
,

Shawn McHale,
Patrick McHale
,

and
Beverly McHale

Defendants (
Appellants
)

Jonathan C. Lisus and
    Zain Naqi, for the appellants

J. Ross Macfarlane,
    for the respondent

Heard: November
    25, 2020 by video conference

On appeal from the judgment of Justice Heather J. Williams of
    the Superior Court of Justice, dated September 16, 2019, with reasons reported
    at 2019 ONSC 5145, and from the costs order, dated January 2, 2020, with
    reasons reported at 2020 ONSC 44.

Roberts J.A.:

A.

OVERVIEW

[1]

The appellants, Lorraine MacDonald, Patrick McHale,
    and Beverly McHale, appeal from the judgment for the payment of monies owing
    under the personal guarantees they provided to the respondent, the Royal Bank
    of Canada, following their competing motions for summary judgment.

[2]

At the commencement of oral submissions, the
    appellants abandoned their appeal from the motion judges dismissal of their counterclaims
    and further narrowed the issues on appeal.

[3]

The issue put forward by the appellants on this
    appeal was: did the motion judge err in granting the respondents motion for summary
    judgment because there was no genuine issue requiring a trial about the scope
    of the appellants liability to the respondent under their personal guarantees?
    The appellants submit that there was a genuine issue requiring a trial, as the
    respondent misrepresented to them that their liability under their personal guarantees
    was joint and several with a collective exposure limited to $600,000.

[4]

For the reasons that follow, I agree that the
    motion judge erred and would remit for trial the narrow issue of determining the
    amount that each appellant owes to the respondent under their respective personal
    guarantees.

B.

Background

(1)

Facts

[5]

The appellants provided personal guarantees as
    security for several million dollars in loan advances made by the respondent to
    Ottawa Valley Glass Enterprises Ltd., later named OVG Inc. (OVG), a family
    business in which the appellants had been directors and shareholders. Ms.
    MacDonald (whose husband, Jack MacDonald, founded and then sold his shares in and
    retired from the business), Shawn and Patrick McHale are siblings. Patrick and
    Beverly McHale are spouses. Ms. MacDonald resigned as a director of OVG in 2006
    and sold her shares to her siblings, Patrick and Shawn, in 2006 and 2011, respectively.
    Although they held 51 percent of the shares in OVG, Patrick and Beverly McHale had
    relatively little involvement with OVG. Shawn McHale actually operated the business.

[6]

The appellants personal guarantees came about after
    Shawn McHale approached the respondent with a request for new financing. On September
    28, 2007, the respondent offered a credit facility in the amount of $1,000,000.
    As security for the loan, the respondent required a general security agreement
    over OVGs assets, together with a personal guarantee and postponement of claim
    in the amount of $300,000, signed by Ms. MacDonald on October 10, 2007, as well
    as a postponement and assignment of claims in favour of the respondent from each
    of Shawn, Patrick, and Beverly McHale, which they executed around the same
    time.

[7]

In the fall of 2008, Shawn McHale requested and
    obtained a further increase to OVGs operating line of credit from $1,000,000
    to $1,500,000. The respondent and OVG entered into a new credit facilities
    letter, dated December 9, 2008. At the request of the respondent, Shawn McHale
    executed a personal guarantee in the amount of $600,000 on December 11, 2008,
    and Patrick and Beverly McHale executed personal guarantees in the amount of
    $600,000 on December 15, 2008. Ms. MacDonald did not sign a new personal
    guarantee.

[8]

OVG struggled financially and began to default
    on its loan obligations to the respondent in the fall of 2012. In January 2013,
    the respondent proposed a forbearance agreement with stringent conditions that was
    rejected by OVG and the appellants. On February 12, 2013, the respondent demanded
    payment from OVG under its various loan agreements and from the appellants under
    their personal guarantees.

[9]

As a result of the respondents demand, on
    February 22, 2013, OVG filed a notice of intention to make a proposal under the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3. In an attempt to
    restructure OVG, between February and December 2013, Patrick McHale indicated
    that he and his wife, Beverly, invested $1,958,498 of their own money into OVG.
    The restructuring did not succeed. On December 12, 2013, OVG made an assignment
    into bankruptcy.

(2)

Court Proceedings

[10]

The respondent brought an action to recover over
    $3 million owing under the guarantees of OVGs indebtedness. Patrick and Beverly
    McHale counterclaimed, alleging the respondent improvidently realized on OVGs
    assets, thereby triggering the bankruptcy of OVG. Shawn McHale made an assignment
    into bankruptcy, and the respondents action was stayed against him.
    Examinations for discovery were held. The parties brought competing motions for
    summary judgment. In support of its motion, the respondent filed the affidavit
    of its manager in the department of Special Loans and Advisory Services, Peter
    Gordon. Ms. MacDonald, Patrick, and Shawn McHale filed affidavits. No cross-examinations
    on the affidavits were held, but the parties relied on the transcripts from the
    various discovery examinations.

[11]

On her examination for discovery, dated December
    15, 2015, Ms. MacDonald deposed that she believed she signed her personal guarantee
    in the presence of Kevin Bossy, an account manager with the respondent. Although
    she could not remember during her examination the conversations she had with Mr.
    Bossy, she said it had always been her understanding that the personal guarantee
    she signed in 2007 was joint and several and thereby limited to $300,000 with
    Shawn, Patrick, and Beverly McHale, and that she did not sign an increased
    guarantee to $600,000 in 2008 because, by then, she had left OVG and disposed
    of the majority of her shares.

[12]

Shawn McHales examination for discovery
    occurred on December 14, 2015. His understanding was that the personal guarantees
    were for a total of $600,000, although he could not recall the bank representative
    telling him whether they were joint and several or individual guarantees. He deposed
    that he was told that the guarantees could be signed in counterpart and would
    still be binding, which informed his assumption that the guarantees were joint
    and several. He also relied on the language in the guarantee that the undersigned
    and each of them (if more than one) hereby jointly and severally agree(s) with
    the bank as follows. He believed the guarantees were joint and several among him,
    Patrick, and Beverly McHale because of the language of the guarantee that said
    the guarantees were joint and several and could be signed in counterparts. In
    his affidavit, sworn on November 5, 2017, Shawn McHale stated the following, at
    para. 13:

Again, based on discussions I had with Mr. Bossy
    of the [respondents] Renfrew branch, I understood that the total liability under
    the Replacement Guarantees [was] limited to $600,000 joint and severally
    between Pat, Bev, and I. Lorraine [MacDonald] never signed the document. This
    understanding is reflected in OVGs financial statements for year-end March 31,
    2009 and all subsequent year-ends.

[13]

On his examination for discovery, dated December
    14, 2015, Patrick McHale testified that he signed his guarantee in a Tim Hortons
    restaurant where he met the respondents representative. He said he understood the
    guarantee was for a total indebtedness of $600,000 as between him and his wife,
    Beverly, and that the respondents representative told them it was for $600,000.
    They were never told anything different than that, and if they had been told otherwise,
    they would not have signed the guarantees. In his affidavit, sworn on November 3,
    2016, Patrick McHale stated the following, at para. 11:

Based on information provided and representations
    made by Mr. Kevin Bossy of the [respondent], it was my understanding and belief
    that my personal liability under the Replacement Guarantee was joint and
    several with my wife Bev, Shawn and Lorraine. I understood and believed that the
    collective maximum personal exposure against all of us was $600,000 and not
    $600,000 each, as the [respondent] is claiming.

[14]

Beverly McHale deposed during her examination
    for discovery, held on December 14, 2015, that she and Patrick met with Mr.
    Bossy or his successor, Milton, at a Tim Hortons restaurant to sign the guarantee.
    She understood that the $600,000 guarantee was a total amount shared by Patrick,
    Shawn, and her, and that it was never explained to them that it would be
    $600,000 for each of them. Unlike Patrick and Shawn McHale, and Ms. MacDonald, Beverly
    McHale did not file an affidavit on the motions for summary judgment.

[15]

The respondent filed no affidavit from Mr. Bossy
    in response to the appellants evidence concerning their understanding of the scope
    of liability under their personal guarantees and their discussions with the respondents
    representatives. The respondent did not cross-examine Ms. MacDonald, Patrick,
    or Shawn McHale on their affidavits.

(3)

The Motion Judges Reasons

[16]

The motion judge held that there was no genuine
    issue requiring a trial in respect of the validity and enforceability of the personal
    guarantees and that they were valid and enforceable. She rejected the
    appellants allegations that the respondent, through its employee, Mr. Bossy, who
    was the account manager for their bank accounts, had misrepresented the scope of
    the liability under their personal guarantees, which they maintained was joint
    and several with a collective exposure limited to $600,000.

[17]

At paras. 55-56 of her reasons, the motion judge
    explained why she rejected the appellants allegations of misrepresentation:

There is no evidence to suggest that any of these
    circumstances [of
non est factum
, unconscionability, fraud, misrepresentation,
    or undue influence] existed in this case. Although [Patrick] said in his
    affidavit that Mr. Bossy of [the respondent] had made representations that left
    [Patrick] with the understanding and belief that his $600,000.00 liability
    under the guarantee was shared with his wife and his brother, I cannot accept that
    Mr. Bossy made any misrepresentations to this effect to [Patrick]. [Patrick] provided
    no particulars of what Mr. Bossy said to him. [Patrick] did not give evidence
    at his examination for discovery that he had relied on any representations made
    by Mr. Bossy and there was no evidence that [Patrick] had ever corrected his examination
    for discovery evidence.

[Patricks] evidence about
    Mr. Bossy was not corroborated by [Beverly], who signed her guarantee at the
    same time and who had an opportunity to file an affidavit in response to [the
    respondents] motion and in support of her own but did not do so.

[18]

The motion judge went on to determine that even
    if she had accepted the appellants allegations of misrepresentation, the entire
    agreement clause contained in para. 13 of the guarantees precluded the
    appellants from relying on any representations that were not set out in the
    guarantees themselves.

[19]

Further, having rejected the allegations of
    misrepresentation, the motion judge did not accept the appellants argument
    that their liability was shared, given that each of the appellants signed a separate
    guarantee that made no reference to a guarantee or guarantees signed by anyone
    else, and that para. 9 of the guarantees provided that each guarantee was in addition
    to and not in substitution for any other guarantee, by whomsoever given.

[20]

The motion judge allowed the respondents motion
    for summary judgment and granted judgment to the respondent against Ms.
    MacDonald in the amount of $300,000, Patrick McHale in the amount of $600,000, and
    Beverly McHale in the amount of $600,000, plus prejudgment and postjudgment interest.
[1]
The
    motion judge found that Patrick and Beverly McHales counterclaims of improvident
    realization of OVGs assets was an alleged wrong to OVG that they had no capacity
    to assert. She therefore dismissed the counterclaims. She ordered that the
    appellants jointly and severally pay costs to the respondent on a substantial indemnity
    basis in the all-inclusive amount of $84,490.38.

C.

The parties positions

[21]

The appellants submit that the motion judge erred
    in granting summary judgment against the appellants in the total amount of
    $1,500,000, plus interest. They do not challenge that the loan advances were
    made, and they concede some indebtedness to the respondent under their personal
    guarantees. However, they say that the motion judge erred in failing to find that
    there was a genuine issue requiring a trial as to whether the respondent misrepresented
    the scope of the appellants liability under their personal guarantees. The appellants
    maintain that their total joint and several liability under the guarantees is limited
    to $600,000. They argue that the motion judges reasons are insufficient, as
    she did not direct herself to key pieces of evidence. Further, they argue that she
    failed to recognize that summary judgment was not appropriate for this issue,
    as the record before her contained real credibility issues that required careful
    study. As such, some form of oral hearing was required to determine this issue
    and make the required credibility findings.

[22]

The respondent argues that the motion judge made
    no error, as she based her decision on the clear wording of the personal
    guarantees signed by the appellants. According to the respondent, the appellants
    failed to put their best evidentiary foot forward. As such, their evidence about
    misrepresentations made by the respondent to the appellants was simply insufficient
    and not accepted by the motion judge. The appeal should therefore be dismissed.

D.

Analysis

(1)

The Framework
    for Summary Judgment

[23]

At the heart of this appeal is the motion judges
    approach to summary judgment and, specifically, her treatment of the evidence
    and record before her. Absent an error of law, a misdirection, or the creation
    of an injustice through a decision that is clearly wrong, a motion judges
    determination of these questions is generally entitled to considerable
    deference on appeal:
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87,
    at paras. 81-84. However, here, appellate intervention is required, as the
    motion judge fell into error and misdirected herself because she failed to determine
    whether summary judgment was appropriate, having regard to the entire evidentiary
    record and the
Hryniak
analytical framework.

[24]

This determination required the motion judge to
    follow the analytical approach set out in
Hryniak
, at para. 66, which
    is summarized as follows:

1.

First, the motion judge should have determined
    if there was a genuine issue requiring a trial based only on the evidence before
    her, without using the enhanced fact-finding powers under r. 20.04(2.1) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194.

2.

Second, if there appeared to be a genuine issue
    requiring a trial, the motion judge should have determined if the need for a
    trial could be avoided by using the enhanced powers under r. 20.04(2.1)  which
    allowed her to weigh evidence, evaluate the credibility of a deponent, and draw
    any reasonable inference from the evidence  and under r. 20.04(2.2) to order
    that oral evidence be presented by one or more parties.

[25]

While summary judgment is an important tool for enhancing
    access to justice and achieving proportionate, timely, and cost-effective adjudication,
    there is no imperative on the court to use it in every case:
Trotter Estate
,
    2014 ONCA 841, 122 O.R. (3d) 625, at para. 49;
Lesenko v. Guerette
,
    2017 ONCA 522, 416 D.L.R. (4th) 349, at para. 30. As affirmed by the Supreme
    Court in
Hryniak
, at para. 28, the overarching goal remains to have a
    fair process that results in a just adjudication of disputes.

[26]

Indeed, notwithstanding the parties agreement
    that the action and counterclaims could be determined by summary judgment, it is
    still incumbent on the motion judge to decide whether it is appropriate to
    grant summary judgment:
Rules of Civil Procedure
,

r. 20.04(2)(b).

[27]

In determining whether summary judgment is appropriate,
    motion judges are required to engage with the
Hryniak
analytical framework
    process, as described above, look at the evidentiary record, determine whether
    there is a genuine issue requiring a trial, and assess, in their discretion,
    whether resort should be taken to the enhanced powers under rr. 20.04(2.1) and
    (2.2) of the
Rules of Civil Procedure
. To do otherwise runs the risk
    that, in an effort to dispose of a case in a summary fashion, motion judges
    will not properly analyze the evidence:
Trotter
, at para. 49. Unfortunately,
    that is what occurred here.

(2)

The Motion Judges Approach

[28]

The motion judges sole brief self-direction
    about the applicable analytical framework appears at para. 5 of her reasons:

Rule 20.04(2) of the
Rules of Civil Procedure
provides that the court shall grant summary judgment if it is satisfied that
    there is no genuine issue requiring a trial with respect to a claim or defence.
    A trial is not required if a summary judgment motion can achieve a fair and
    just adjudication, if the process allows the judge to make the necessary findings
    of fact and apply the law to those facts and if the motion is a proportionate,
    more expeditious and less expensive means to achieve a just result.

[29]

It was, of course, unnecessary for the motion
    judge to recite
verbatim
the applicable principles from
Hryniak
,
    so long as she applied them throughout her decision. However, her reasons do not
    demonstrate that she did. The motion judge did not set out an adequate analysis
    leading to her conclusion at para. 100(1) that there is no genuine issue
    requiring a trial in respect to the validity and enforceability of the
    guarantees.

[30]

In order to come to this conclusion, the motion
    judge was required to analyze the entirety of the evidentiary record before her
    and determine whether there was a genuine issue requiring a trial with respect
    to the appellants allegations of misrepresentation and, if so, whether the
    need for a trial could be avoided by using the enhanced powers under rr.
    20.04(2.1) and (2.2) of the
Rules of Civil Procedure
. Unfortunately,
    she failed to do so.

[31]

Specifically, the motion judges reasons do not
    adequately explain why she rejected the appellants unchallenged evidence that,
    if accepted, would support their allegation of misrepresentation, particularly in
    the absence of any evidence to the contrary by the respondent. The appellants
    and Shawn McHales unequivocal and unchallenged evidence was that they gave
    their guarantees on the understanding that their total obligation was $600,000,
    joint and several, and that this understanding came from the guarantees
    themselves and discussions with the respondents representatives. Further,
    according to Shawn McHales affidavit, at para. 13, the understanding of the
    appellants was recorded in the year-end financial statements of OVG. While Mr.
    Gordon gave evidence regarding his interpretation of the guarantees in an
    examination for discovery, dated September 21, 2015, he was unable to indicate
    whether the liability was properly explained to the appellants, as he said the
    account manager would possess that information.

[32]

The motion judge failed to reference Shawn
    McHales evidence, and her apparent rejection of the evidence given by Patrick
    and Beverly McHale was conclusory and in part appears to be based on a misapprehension
    of their evidence. Other than the guarantee documents and the evidence of Mr.
    Gordon, the respondent filed no other evidence challenging the appellants and
    Shawn McHales understanding of the scope of the guarantees, nor were Patrick and
    Shawn McHale, or Ms. MacDonald cross-examined on their affidavits. The motion judge
    failed to address this absence of evidence.

[33]

With respect to Patrick McHales evidence, while
    the motion judge was entitled to reject it, she erred by failing to provide
    adequate reasons for doing so. Notably, she failed to explain why she labelled
    Patrick McHales evidence as lacking particularity and why her observation that
    certain particulars from his affidavit were not mentioned on his examination for
    discovery apparently led her to reject his unchallenged evidence.
The
    motion judges concerns about Patrick McHales evidence that she did identify,
    as noted above at para. 17 of these reasons, were not sufficient to reject his
    evidence out of hand, especially given he had not been cross-examined on his
    affidavit and there was evidence that, if accepted, could corroborate his
    evidence. Moreover, his evidence was not speculative and provided some
    particulars of his dealings with the respondent that were corroborated by his
    brother and wife.

[34]

However, even if the motion judge did not err in
    rejecting Patrick McHales evidence, she was required to go beyond it and
    assess it together with the other evidence in the record that, if accepted,
    would support the appellants version of events and corroborate Patrick McHales
    evidence. She failed to do so.

[35]

Notably, Shawn McHales evidence was that the respondent
    had misrepresented the nature of the guarantees and indicated the guarantees could
    be signed in counterparts, and that the appellants understanding was reflected
    in OVGs year-end financial statements. Similarly, while Beverly McHale did not
    file an affidavit on the motions, the parties relied on her discovery
    transcript in which she provided some corroboration of her husbands evidence
    concerning the place of the meeting with the respondents representative and
    the appellants understanding of the scope of their liability under their
    guarantees as a result of discussions with the respondents representative. The
    motion judges reasons are silent with respect to Shawn McHales evidence and
    do not explain why she determined that Beverly McHales evidence did not corroborate
    her husbands evidence.

[36]

Simply put, if the motion judge rejected Shawn
    McHales evidence, she was required to give her reasons. Given that Beverly McHales
    examination for discovery did corroborate her husbands evidence in some
    particulars, the motion judge erred by stating that it did not, without explaining
    why it did not. It was not necessary for Beverly McHale to repeat her evidence
    in an affidavit, as the motion judge appears to suggest.

[37]

While each piece of evidence by itself may not
    have been sufficient to establish the appellants allegations of misrepresentation,
    the motion judge was required to consider the evidence as a whole to determine
    whether, in all of the circumstances of the case, based on the entire record before
    her, she was able to determine the material issues in dispute without requiring
    a trial. She failed to do so.

[38]

As
    part of this balancing exercise that she was required to undertake, the motion
    judge further erred in failing to address the absence of evidence by the
    respondent to challenge the appellants affidavits and transcripts. Rather, in
    evaluating Patrick McHales evidence, she simply stated that she could not
    accept that Mr. Bossy had made the misrepresentations to Patrick. This was an
    error. In this case, the respondents choice not to cross-examine Patrick or
    Shawn McHale or Ms. MacDonald on their respective affidavits, and not to tender
    evidence in response to the appellants evidence of misrepresentation, ought to
    have been taken into consideration by the motion judge before she rejected the
    appellants evidence and accepted the respondents position on the key disputed
    factual issues:
2212886 Ontario Inc. v. Obsidian Group
    Inc.
, 2018 ONCA 670, 83 B.L.R. (5th) 186, at para. 49, leave to
    appeal refused, [2018] S.C.C.A. No. 391.

[39]

Since the evidence adduced by the appellants was
    capable of supporting an allegation of misrepresentation and was unchallenged
    by the respondent in cross-examination, it was incumbent upon the motion judge
    to explain why she rejected the evidence:
Neuberger v. York
,
    2016 ONCA 191, 129 O.R. (3d) 721, at para. 124, leave to appeal refused, [2016]
    S.C.C.A. No. 207;
Trotter
, at para. 54;
Lesenko
, at para. 19.
Her conclusory
    statements were insufficient. While she recited the evidence, she did not weigh
    it, evaluate it, or make findings of credibility as she was required to do in
    this case. She could not simply prefer one position over another without providing
    an explanation that is sufficient for appellate review:
Gordashevskiy v.
    Aharon,
2019 ONCA 297, at para. 6.

[40]

Rather, s
he was required to undertake a credibility
    analysis pursuant to the expanded judicial powers under r. 20.04(2.1) of the
Rules
    of Civil Procedure
to weigh the evidence, evaluate the credibility of the
    appellants deponents, and draw reasonable inferences:
Trotter
, at
    para. 54. Further, if the motion judge determined she could not assess credibility
    solely on the written record, she should have considered whether oral evidence
    or a trial were required:
Trotter
, at para. 55.

[41]

While
    summary judgment may have been appropriate had the motion judge carried out the
    requisite analysis under r. 20.04(2.1) of the
Rules of
    Civil Procedure

and exercised her powers to
    hear oral evidence pursuant to r. 20.04(2.2), she did not seek to do so.

[42]

I agree that fairness requires a trial of the
    narrow issue framed by the appellants before another judge of the Superior Court
    of Justice.

[43]

While not pressed in argument by the parties, for
    the purposes of the trial of the narrow issue, it is important to address the motion
    judges related alternative conclusion. As earlier noted, the motion judge
    concluded that even if she had found that the respondent had made the alleged misrepresentations
    to the appellants, the effect of the entire agreement clause in the personal guarantees
    precluded the appellants from relying on any such representations that were not
    set out in the guarantees themselves. In my view, this conclusion was
    erroneous. It is well-established that the defence of misrepresentation is not
    precluded or diminished by reason only of the existence of an entire agreement
    clause:
Bank of Nova Scotia v. Zackheim
(1983), 3 D.L.R. (4th) 760
    (Ont. C.A.), at pp. 761-62;
Beer v. Townsgate I Ltd.
(1997), 152
    D.L.R. (4th) 671 (Ont. C.A.), at paras. 25-32, leave to appeal refused, [1997]
    S.C.C.A. No. 666. I would not uphold the motion judges finding on this issue.

E.

Disposition

[44]

I would allow the appeal and set aside paras. 1,
    3 and 4 of the motion judges judgment, dated September 16, 2019, and the costs
    order, dated January 2, 2020. However, for greater certainty, I would not disturb
    the motion judges conclusions at paras. 100 1. and 2. of her reasons that there
    is no genuine issue requiring a trial in respect of the validity and enforceability
    of the appellants personal guarantees and that the guarantees are valid and enforceable.

[45]

The narrow issue requiring a trial is the scope of
    the appellants liability under their personal guarantees, having regard to the
    appellants allegations of misrepresentations that they say were made by the
    respondent.

[46]

As agreed in oral submissions, I would allow the
    appellants their partial indemnity costs of the appeal in the amount of $15,000,
    which is inclusive of disbursements and applicable taxes.

[47]

I would also direct that if the parties cannot
    agree on the disposition of the costs before the motion judge, they should forward
    brief written submissions of no more than two pages, plus a costs outline, within
    seven days of the release of these reasons.

Released: February 19, 2021 (D.D.)

L.B.
    Roberts J.A.

I
    agree. Doherty J.A.

I
    agree. Harvison Young J.A.





[1]

Judgment
    was also granted against
1643937
Ontario Inc., however,
    it did not appeal the judgment or take any position on the appeal.


