



COURT OF APPEAL FOR ONTARIO

CITATION: Wharton Holdings Limited v.
    Balletto, 2022 ONCA 43

DATE: 20220119

DOCKET: C69602

Pardu, Roberts and Miller JJ.A.

BETWEEN

Wharton Holdings Limited

Plaintiff (Respondent)

and

Norman Balletto

Defendant (Appellant)

Norman N. Balletto, acting in person

James S.G. Macdonald, for the
    respondent

Heard: January 17, 2022 by
    video conference

On appeal from
    the judgment of Regional Senior Justice Leonard Ricchetti of the Superior Court
    of Justice dated May 31, 2021, with reasons reported at 2021 ONSC 4068.

REASONS FOR DECISION

[1]

The appellant appeals from the summary judgment
    in the amount of $102,862.95, plus interest, granted to the respondent. At
    issue is the validity and enforceability of a promissory note given by the
    appellant to the predecessor of the amalgamated respondent (the respondent).

[2]

At the close of the appellants oral
    submissions, we advised the parties that the appeal was dismissed with reasons
    to follow. These are those reasons.

[3]

The judgment amount of $102,862.95 was the
    principal balance owed by the appellant under a promissory note, dated January
    8, 2017 (the promissory note). The parties entered into a written agreement
    and the appellant gave the promissory note in consideration for the business
    assets of the respondents commercial ink product manufacturing business. The
    appellant has owned and operated a commercial ink manufacturing business for
    more than four years using the purchased assets and the respondents trade name.
    He made payments to the respondent over the course of 2017 and 2018 in the
    total amount of $32,136.15. No payments were made after November 30, 2018. The
    respondent made demands for payment and then started an action in December
    2019. The appellant delivered a statement of defence and counterclaim in March
    2020 and issued a third party claim in April 2020.

[4]

The appellant contends that the promissory note
    is unenforceable because of the respondents alleged oral representations that
    the appellant maintains amount to necessary and unfulfilled conditions for the
    payment of the promissory note. According to the appellant, these unfulfilled
    conditions include that the respondent agreed to provide training to run an ink
    business and ensure customer loyalty. The appellant submits the motion judge
    erred in failing to grant him an adjournment to examine the respondent to
    obtain evidence supporting his allegations and in failing to find that the
    promissory note was unenforceable because the alleged conditions were not fulfilled.
    In oral argument, the appellant submits further that the motion judge erred in
    finding that he failed to make payments under the promissory note when the
    parties had agreed that he could stop making payments until they resolved their
    dispute concerning the alleged unfulfilled conditions, and in finding that the
    appellant had no evidence to support his allegations in light of the evidence
    filed at the motion.

[5]

We do not accept these submissions.

[6]

First, the motion judges refusal of the
    appellants adjournment request was reasonable in the circumstances. He gave
    detailed reasons for denying it, including the absence of any prior request or
    attempt by the appellant (who was represented throughout by counsel) to set up
    an examination for discovery or an examination or cross-examination of the
    respondent on its affidavit in the many months before the return date of the
    motion. The motion judge was satisfied that he could make a fair and just
    determination of the appellants current liability under the promissory note.
    Absent error, an appellate court cannot interfere with the motion judges
    reasonable exercise of his discretion to refuse an adjournment. We see no error
    in the motion judges determination on this issue.

[7]

Second, the motion judge carefully reviewed the
    appellants allegations and his supporting affidavit that the respondents oral
    representations varied the express terms of the promissory note and resulted in
    conditions precedent to its enforceability. The motion judge did not find that
    the appellant had no evidence but, rather, he characterized and rejected the
    appellants evidence as bald allegations that lacked credibility and
    reliability. He found that the appellant failed to provide any cogent or
    corroborative evidence in support of the alleged oral representations that, he
    noted, were absent from the written agreement and the promissory note. He also
    noted that the appellants subsequent course of conduct was inconsistent with
    the alleged oral representations: the appellant acknowledged liability on the
    promissory note by making payments for more than a year and then by asking in
    2018 for an extension of its due date; and, although the unfulfillment of the
    alleged oral representations would have been apparent shortly after the closing
    in January 2017, the appellant did not raise any complaint for more than two
    years and only in response to the respondents demand for payment of the monies
    owing under the promissory note. The motion judge concluded that the appellant
    was effectively asking that the court re-write the terms of the Agreement to
    impose new and different terms, which he declined to do.

[8]

We also reject the appellants argument that the
    respondents action was somehow premature or that he stopped making payments
    because of an alleged standstill agreement with the respondent. The appellant
    has not established such an agreement was made pending resolution of the
    parties dispute. In any event, there was no agreement resolving the dispute
    and altering the amount due under the promissory note. As a result, the
    respondent was entitled to insist on full payment of the amount owing. There is
    no dispute that the appellant has made no payments past 2018 and contests in
    these proceedings his obligation to continue to make any payments under the
    promissory note.

[9]

The appellant repeats basically the same
    arguments before this court that the motion judge rejected. Essentially, the
    appellant asks this court to redo the motion judges findings without pointing
    to any error that would permit appellate intervention. The motion judges
    findings were open to him on the record and are owed deference on appeal. We
    see no basis to intervene.

Disposition

[10]

The appeal is therefore dismissed.

[11]

The respondent is entitled to partial indemnity
    costs from the appellant in the amount of $5,000, inclusive of disbursements
    and applicable taxes.

G.
    Pardu J.A.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.


