When appellant omits pleading central to decision and appeal, respondent should correct this

At son's request his parents, defendant guarantors, signed guarantee in favour of plaintiffs guaranteeing debts of company. Motion judge granted summary judgment in favour of plaintiffs against guarantors in amount of $954,842.55. Motion judge refused to consider defence she observed was potentially genuine issue for trial, that there was no consideration for guarantee because it was signed after loan to company had been advanced, because defence was not pleaded. Guarantors successfully appealed. Issue arose as to costs. Guarantors were successful and ordinary rule was followed, awarding costs for appeal on partial indemnity basis to guarantors in amount of $7000 total. Neither counsel displayed exemplary conduct. There was no basis on which to award enhanced costs to guarantors nor to make opposing counsel personally liable for them. As general rule, when appellant omits pleading central to decision and appeal, respondent should correct this and not make arguments on basis that record before lower court was different that it actually was. Party to appeal, led by counsel, had obligation to provide to court any material necessary for court to have full appreciation of matter under appeal, whether or not material supported party’s position.

Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc. (2019), 2019 CarswellOnt 4574, 2019 ONCA 248, G.R. Strathy C.J.O., P. Lauwers J.A., and B. Zarnett J.A. (Ont. C.A.); additional reasons (2019), 2019 CarswellOnt 273, 2019 ONCA 6, G.R. Strathy C.J.O., P. Lauwers J.A., and B. Zarnett J.A. (Ont. C.A.).