Judgment Released: June 30, 2010 Link to Judgment
The Court held that this summary judgment motion, to enforce a personal indemnity for non-payment of a commercial lease, was “a classic case for the application of the more vigorous procedure available” under the new Rule 20, and that while “some of the[] limp defences may have survived under the old rule” they were all rejected (but for an undisputed set-off) on the basis of the Court’s “new ability to assess the credibility of the supporting material.”
Among other holdings, the Court rejected the defence that the plaintiff’s agent “undertook to never take action in case of default” against the respondents during the oral negotiations over the lease and that the respondents believed they would not be held personally accountable. The Court noted that allowing tenants to walk away from rent obligations “does not make sense” and “flies in the face” of the parol evidence rule. The Court also rejected the defence that the respondents never intended to become indemnifiers despite signing indemnifications, because a claim of non est factum requires due care by the party raising the defence yet the respondents conceded they had not read the documents with sufficient care. The Court also rejected the defence that the plaintiff acquiesced in the surrender of the lease when the defendants cooperated with certain requests from the plaintiff; the respondents’ claimed lack of receipt or recall of correspondence from the plaintiff on the issue was held to be “weak and unconvincing.”