



COURT OF APPEAL FOR ONTARIO

CITATION: Boudreau Commercial Contracting Inc. v. Caruana,
    2018 ONCA 257

DATE: 20180315

DOCKET: C64125

Hoy A.C.J.O., Juriansz and Miller JJ.A.

BETWEEN

Boudreau Commercial Contracting Inc.

Plaintiff (Respondent)

and

Paul Caruana
and Dena Caruana

Defendants (
Appellant
)

Owen D. Thomas, for the appellant

Colin J. Bondy and Daniel Ableser, for the respondent

Heard and released orally: March 12, 2018

On appeal from the order of Justice George W. King of the
    Superior Court of Justice, dated June 23, 2017.

REASONS FOR DECISION

[1]

This is an appeal from a partial summary judgment granted by the motion
    judge.

[2]

The appellant submits that partial summary judgment was inappropriate in
    the circumstances. We disagree.

[3]

The motion judge gave careful consideration as to whether partial
    summary judgment could be granted. He noted that the evidence established, and
    both parties agreed, that the appellants shareholder loan outstanding as of
    February 6, 2014 was $219,315 and that this was sufficient to establish a
prima
    facie
case for summary judgment. He noted the question he had to decide was
    whether there was evidence establishing that the shareholder loan was reduced
    or eliminated prior to the appellants companys bankruptcy, or raising a
    genuine issue for trial. He considered the nature of the evidence before him
    and observed that what was before the court was essentially an accounting
    exercise, which could be determined on the basis of the documentary evidence
    before the court. Therefore he concluded this was a matter that could and
    should be determined on a summary judgment motion. We see no error in this
    conclusion.

[4]

The appellant also argues that partial summary judgment was not
    appropriate because of the risk of inconsistent findings at trial. Given the
    nature of the findings made on the partial summary judgment and the nature of
    the issues remaining to be determined at trial in this case, we are not
    persuaded there is any risk of inconsistent findings being made at trial.

[5]

The appellant also argues the motion judge erred in making the factual
    determinations that he did in the absence of evidence rebutting the appellants
    assertions that he made payments on behalf of the bankrupt company. As noted,
    there was a
prima facie
case the appellant had to meet, and he had the
    obligation of putting his best foot forward. The motion judge looked carefully
    at his evidence and found it did not support his bold assertions. After
    considering each of the appellants claimed payments, the trial judge concluded
    there was no genuine issue for trial that the outstanding balance of the
    appellants shareholder loan on the date of the companys bankruptcy was in the
    amount of at least $161,724.75. These were factual findings and we see no basis
    for questioning any of them.

[6]

Finally, the motion judge did not err in law in refusing to credit the
    appellants shareholder loan with payments he claims to have made on behalf of
    the bankrupt company after the date of bankruptcy.

[7]

For these reasons, the appeal is dismissed. Costs are awarded to the
    respondent fixed in the agreed amount of $6,500 inclusive of disbursements and
    HST.

Alexandra Hoy A.C.J.O.

R.G. Juriansz J.A.

B.W. Miller J.A.


