|
Contract - Guarantee - Termination. Toronto-Dominion Bank v. Overland R.N.C. Inc.
In Toronto-Dominion Bank v. Overland R.N.C. Inc. (Ont CA, 2022) the Court of Appeal considered a situation of release from a guarantee:[12] We agree with the appellants that they provided the respondent with clear and unequivocal notice that they no longer wished to be liable under the Guarantee. A plain reading of the November 30, 2018 email supports the appellants’ contention. Brian Sack wrote in his email that he wanted to “confirm that Myself, Dan, and Sax Construction have no obligation for Overland RNC? Please confirm.” In other words, Brian Sack sought confirmation that he and his brother were not liable under the Guarantee. The motion judge erred in holding that Brian Sack was merely inquiring about the extent of his obligation.
[13] We would distinguish the current case from Dickson v. Royal Bank of Canada, 1975 CanLII 148 (SCC), [1976] 2 S.C.R. 834, upon which the motion judge relied to find that the November 30, 2018 email did not constitute clear and unequivocal written notice. The central concern for the court in Dickson was that the bank should not be left with any doubt as to whether the guarantor was terminating his liability under the Guarantee. In the current case, however, the respondent bank had no doubt that the appellants no longer wished to be held liable under the Guarantee. Moreover, in Dickson, the bank continued to advance funds to the debtor after the letter in question. In contrast, the respondent in the current case did not take any action that the appellants might have understood to indicate a continuing relationship.
|
