



COURT OF APPEAL FOR ONTARIO

CITATION: Van Nispen v. McCarron &
    Chobotiuk Financial Services Inc., 2020 ONCA 146

DATE: 20200221

DOCKET: C67192

Simmons, van Rensburg and
    Harvison Young JJ.A.

BETWEEN

Robert Van Nispen and Donna Van
    Nispen

Plaintiffs/Defendants by Counterclaim

(Respondents)

and

McCarron & Chobotiuk
    Financial Services Inc.

Defendant/Plaintiff by Counterclaim

(Appellant)

Steven Sands, for the appellant

Lawrence Hansen, for the respondents

Heard: February 18, 2020

On appeal
    from the order of Justice Annette Casullo of the Superior Court of Justice, dated
    June 12, 2019 with reasons reported at 2019 ONSC 3658.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals a summary judgment
    granting judgment on two promissory notes and dismissing its counterclaim.

[2]

As a starting point, we see no error in the
    motion judges discretionary decision refusing leave to the appellant under r.
    39.02 to deliver a further affidavit following cross-examination of one of the respondents.
    The affidavit is not before us and was apparently not filed in the court below.
    In any event, the affidavit was proffered only on the second day of the motion
    and after the moving parties counsel had completed his submissions. The motion
    judge observed that the information sought to be introduced did not stem from
    an issue first raised on cross-examination. She also found admitting the
    affidavit would be unfair. There is no basis to interfere with this exercise of
    her discretion.

[3]

We agree with the motion judge that the evidence
    on the motion did not raise a genuine issue requiring a trial concerning the
    promissory notes or the counterclaim. The respondents led evidence denying they
    had diverted clients away from the appellant. As the motion judge found, the
    appellants assertions to the contrary were bald and unsubstantiated. Promises
    of better evidence at trial do not defeat a motion for summary judgment.

[4]

The proposed fresh evidence does not meet the
    test for its admission. The substance of it was available or could have been
    obtained prior to the motion. Packaging it in a post-motion email to Sun Life
    does not change that reality.

[5]

The appeal is therefore dismissed.

[6]

Costs of the appeal are to the respondents on a
    partial indemnity scale inclusive of disbursements and HST fixed in the amount
    of $8,000.


