



COURT OF APPEAL FOR ONTARIO

CITATION:
Toronto-Dominion
    Bank v. Hylton, 2012 ONCA 614

DATE: 20120917

DOCKET: C53134

Winkler C.J.O., LaForme J.A. and Cunningham
    A.C.J. (
ad hoc
)

BETWEEN

The Toronto-Dominion Bank

Plaintiff (Respondent)

and

Paul Hylton also known as Paul U Hylton

Defendant (Appellant)

Osborne Barnwell, for the appellant

Dennis Touesnard, for the respondent

Heard and released orally: September 10, 2012

On appeal from the judgment of Justice Harrison S. Arrell
    of the Superior Court of Justice, dated December 10, 2010.

ENDORSEMENT

[1]

All the proposed fresh evidence filed for this courts consideration on
    this appeal was available to Hylton before the second hearing of the Toronto-Dominion
    Banks summary judgment motion. Especially given this courts reasons and
    comments in Hyltons first appeal, there is no reason why he would not have
    been aware of the requirement to exercise reasonable diligence in obtaining and
    presenting this evidence at the second summary judgment hearing.

[2]

The affidavit of the signing officer at Keywell is sparse. It simply
    makes a bald assertion that the loan was intended to be for the company, but
    does not explain the circumstances surrounding the loan applications or the
    defaults. The evidence was available well before the hearing and without more
    evidence on contractual intent, these materials are meaningless.

[3]

Moreover, Hylton has not only waited until now to obtain evidence he
    could have obtained all along, he is presenting a picture of the facts so
    poorly incomplete and unpersuasive as to beg the question: what will he gain
    from having a lower court consider this matter for a third time?

[4]

The motion judge exercised his discretion in weighing the evidence,
    drawing inferences from the facts and making findings of credibility. He made
    no errors in doing so.

[5]

A party moving for summary judgment has the evidentiary burden of
    showing there is no genuine issue for trial. Once this burden is discharged the
    responding party must prove that its defence has a real chance of success. Each
    party must put its best foot forward to establish whether or not there is an
    issue for trial. The court is entitled to assume that the record contains all the
    evidence the parties would present at trial.

[6]

The appellant has failed to put his best foot forward after this court
    has given him an additional chance to do so. The appeal is dismissed. Costs to
    the respondent are fixed in the amount of $5,000, inclusive of disbursements
    and applicable taxes.

W. K.
    Winkler C.J.O.

H.S. LaForme J.A.

J.D.
    Cunningham A.C.J. S.C.J. (
ad hoc
)


