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Leave to issue a writ of execution may be refused for unexplained delay despite an unexpired limitation period.
The appellant obtained a deficiency judgment against the respondents following a mortgage default and power of sale.
Fourteen years later, the appellant brought an application under rules 60.07(2) and 60.08(2) of the Rules of Civil Procedure for leave to issue a writ of seizure and sale and notices of garnishment.
The motion judge dismissed the application due to the appellant's failure to explain the 14-year delay.
On appeal, the Divisional Court upheld the decision, confirming that a judge has discretion to refuse leave solely on the basis of unexplained delay, even if the 20-year limitation period under the Limitations Act has not expired.
Appeal from summary judgment dismissing counterclaim dismissed; no genuine issue for trial regarding discoverability or fiduciary duty.
The appellant appealed a summary judgment dismissing her counterclaim.
The Court of Appeal dismissed the appeal, finding that the facts underlying the counterclaim were known to the appellant from the beginning, and obtaining legal advice did not raise a discoverability issue.
Furthermore, there were no facts raising a genuine issue for trial concerning an alleged fiduciary duty.
