



COURT OF APPEAL FOR ONTARIO

CITATION: Copperfin Credit Union Limited v. Cupello, 2018
    ONCA 873

DATE: 20181031

DOCKET: C64453

Lauwers, Huscroft and Trotter JJ.A.

BETWEEN

Copperfin Credit Union
    Limited

Plaintiff (Respondent)

and

2427087 Ontario Inc., Melissa Harrison,
Rosalba
    Cupello

Defendants (
Appellant
)

Michael Cupello, for the appellant

Jordan Lester, for the respondent

Heard: October 29, 2018

On appeal from the
    judgment of Justice J.S. Fregeau of the Superior Court of Justice, dated August
    23, 2017.

REASONS FOR DECISION

[1]

Copperfin sued Rosalba Cupello on a guarantee of the indebtedness of
    2427087 Ontario Inc.  The motion judge granted summary judgment in the amount
    of $100,000, plus interest and costs.

[2]

The appellant argues that by advancing the loan before it got all of the
    associated security, Copperfin materially varied the loan agreement, thus
    releasing Ms. Cupello from her personal guarantee.  We reject this argument. 
    The motion judge correctly pointed out that the guarantee expressly provided
    that liability of the guarantor under it would not be affected by any failure
    on Copperfins part to perfect any security.

[3]

The appellant next argues that by way of a collateral agreement,
    Copperfin agreed not to advance more than $200,000 without having the necessary
    security documentation in place.  There is nothing in the loan agreement or in
    the guarantee to support this argument.  The motion judge pointed out that Ms.
    Cupello was legally advised throughout. Moreover, the guarantee contained an
    entire agreement clause, providing that the guarantee could not be modified
    by any collateral agreements unless they were properly formalized.

[4]

The motion judge stated: There is no evidence before me on this motion
    to support Ms. Cupellos assertion that the terms of the guarantee were
    modified at some point in time to reflect an express agreement between
    herself and Copperfin in which it was agreed that no more than $200,000 would
    be advanced on the project, which was going to be secured dollar for dollar by
    way of my pledge of $100,000 and Harrisons pledge of $100,000. This is an
    evidentiary finding to which we must defer unless the motion judge made a
    palpable and overriding error in so finding.

[5]

The appellant points to an October 16, 2014 email from a representative
    of Copperfin to Ms. Cupello.  The motion judge interpreted the email, taking
    into account the cross-examination of the representative, as stating only that
    any future advances beyond the $314,000 that had been advanced at the date of
    the email would come through [him] moving forward.  This was a reasonable
    interpretation. As it happens, no additional funds were advanced after the date
    of the email.

[6]

The motion judge buttressed his finding that the alleged collateral
    agreement contradicted the entire agreement clause in the guarantee with a
    finding that the parol evidence rule precluded the admission of Ms. Cupellos
    evidence of an alleged collateral agreement or Copperfins representations.  He
    also found the doctrine of promissory estoppel did not apply.  We agree.

[7]

The appellant has pointed to no palpable and overriding error of fact
    and to no error of law made by the motion judge that would justify allowing the
    appeal.  The appeal is dismissed with costs payable by the appellant to the
    respondent fixed at $9,500.

P.
    Lauwers J.A.

Grant
    Huscroft J.A.

G.T.
    Trotter J.A.


