Executive Summary: Key Legal and Evidentiary Issues

• Validity and enforceability of Antonio Guido’s personal guarantee for RCB’s loan from HSBC.

• Alleged existence and legal effect of a side agreement purportedly waiving enforcement of the guarantee.

• Claims of agency and authority regarding Campoli and MTA’s relationship with HSBC and RCB.

• Sufficiency of evidence supporting allegations of conspiracy and improper fees involving HSBC executives.

• Procedural fairness concerning refusals to produce documents and requests for adjournments.

• Appropriateness and quantum of costs awarded, including substantial indemnity basis.

Facts of the case

HSBC Bank Canada provided a loan to Royal Canadian Bedrock Inc. (RCB), with Antonio Guido, RCB’s principal, signing a personal guarantee as part of the loan agreement. RCB defaulted on the loan, prompting HSBC to seek recovery from Guido under the guarantee. Guido did not dispute the legal framework but raised several defences and counterclaims. He alleged that Bruno Campoli and Michael Thomas & Associates Ltd. (MTA), who were retained as agents to secure credit for RCB, also acted as agents for HSBC. Guido claimed that Campoli made representations—allegedly on HSBC’s behalf—that the personal guarantee would not be enforced, and that Campoli conspired with HSBC executives to extract unlawful fees from him in exchange for leniency.

Discussion of policy terms and clauses at issue

Central to the dispute were the non-reliance and non-waiver clauses in the loan agreement. The motion judge found that these provisions barred Guido from relying on any alleged oral representations by Campoli that contradicted the written terms of the guarantee. The court emphasized that, even if agency issues warranted a trial, the contractual clauses would preclude Guido’s reliance on external representations.

Summary judgment and evidentiary findings

The motion judge granted summary judgment to HSBC, holding that there was no evidence Campoli had authority to act for HSBC or that HSBC permitted Campoli to make binding representations. The judge found no factual basis for Guido’s claims of a conspiracy to extract unlawful fees, noting the absence of evidence connecting HSBC employees to the alleged scheme. After extensive litigation and discovery, Guido failed to produce corroborating evidence for his theories. The judge also declined to draw an adverse inference from HSBC’s refusal to conduct further document searches, finding Guido had not shown the original production was deficient.

Procedural issues and requests for adjournment

Guido argued that the motion judge erred by refusing to grant an adjournment to compel further answers and to add another defendant. The court found that Guido’s repeated adjournment requests were attempts to delay proceedings and that there was no evidentiary basis for further discovery. The judge’s refusal to adjourn was upheld on appeal.

Appeal and costs

On appeal, Guido contended that the motion judge erred in granting summary judgment and in refusing to stay enforcement of the judgment. The Court of Appeal found no error in the motion judge’s reasoning or application of the law, emphasizing the lack of evidence after five years of litigation. The appeal was dismissed. Regarding costs, the motion judge awarded HSBC substantial indemnity costs totaling $284,896.67, reduced from the amount sought to reflect what Guido could reasonably expect to pay. The Court of Appeal denied leave to appeal the costs award, finding no strong grounds for intervention, and awarded HSBC an additional $20,000 for the appeal.

Ruling and overall outcome

The Court of Appeal upheld the summary judgment in favor of HSBC Bank Canada, dismissed all of Guido’s defences and counterclaims, and affirmed the costs award. HSBC was the successful party, with a total monetary award of $284,896.67 for costs at trial, plus $20,000 for the appeal, ordered in its favor.