Your Neighbourhood Credit Union (YNCU), a non-party and first mortgagee, moved to set aside a prior judgment (Hainey J.) that granted an easement over its mortgaged lands, alleging lack of notice.
The motion was held in abeyance pending an appeal of a similar judgment (Conway J.), which was subsequently overturned by the Court of Appeal, finding no legal entitlement to an easement.
The court found YNCU's motion, continued by its assignee Silsym Inc., met the "forthwith" requirement of Rule 38.11 despite delays.
Given the Court of Appeal's ruling on similar facts, the court concluded there was no entitlement to the easements granted by the Hainey Judgment and allowed the motion, setting aside the judgment.
Costs were fixed at $20,000 for the moving party.
