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Leave to appeal denied; partial summary judgment on alternative claims does not constitute an election.
The defendant brought a motion for leave to appeal a partial summary judgment of $985,634.54 granted in favour of the plaintiff mortgagee.
The partial judgment was based on alternative claims of unjust enrichment and equitable subrogation for funds used to discharge existing debts on the defendant's property.
The defendant argued that granting partial summary judgment constituted an election by the plaintiff to abandon its claim for the entire mortgage debt.
The Divisional Court dismissed the motion, finding no reason to doubt the correctness of the motions judge's decision that partial summary judgment is not an election.
Leave to appeal the costs award was also denied.
