Gillian Silverhart

The plaintiff mortgagee brought a motion for summary judgment against the mortgagor and guarantors for the deficiency balance remaining after the property was sold under power of sale.

One guarantor opposed the motion, alleging the sale was improvident and that the plaintiff or his agent frustrated other potential sales.

The court found no genuine issue requiring a trial, concluding the plaintiff took reasonable precautions to obtain market value and there was no evidence of interference with other offers.

Summary judgment was granted for the deficiency balance of $4,090,074.26 plus interest and substantial indemnity costs.

This is a costs endorsement following a summary judgment motion where the Smiths' defence and counterclaim were dismissed, and Kheen was granted summary judgment with full indemnity costs.

The court applied the factors stipulated in Rule 57 of the Rules of Civil Procedure.

It found the costs claimed by Kheen, including legal fees and disbursements, to be reasonable, necessary, and directly related to the complex litigation, which was necessitated by the Smiths' conduct in attempting to avoid their legal obligations.

Kheen was awarded $23,070 in costs (inclusive of HST) and $2,359.32 in disbursements, payable jointly and severally by Nadine Theresa Smith and Shane Davidson Smith.

A bank brought a motion for summary judgment against a corporate borrower and its principal guarantor following default on two loans and a corporate credit card account.

The guarantor alleged that bank representatives had represented that liability would be limited to approximately ten percent of the loan amounts because the loans were insured under the Canadian Agricultural Loans Act scheme.

The court held that the written guarantees contained clear “no representations” clauses preventing reliance on alleged oral assurances and that the responding party failed to put forward evidence establishing a genuine issue requiring trial.

Applying the summary judgment framework from Hryniak v. Mauldin, the court concluded that the record permitted a fair and just determination without trial.

Summary judgment was granted enforcing the guarantees and outstanding indebtedness.

The appellants brought a fresh evidence motion as part of their appeal, seeking to introduce affidavits from two rabbis regarding the exact time the Sabbath began on February 19, 1999.

The evidence was intended to undermine the credibility of a respondent who testified that he could not have finalized a lease arrangement on that Friday afternoon due to the approaching Sabbath.

The Court of Appeal dismissed the motion, applying the Palmer test and concluding that even if the evidence were admitted, the minor discrepancy in the estimated time of the Sabbath would not reasonably be expected to have affected the trial judge's findings on credibility or the ultimate result.

The appellants appealed a trial judgment dismissing their action regarding the termination of a lease.

The trial judge found that the appellants failed to pay rent and lacked the financial ability to do so.

On appeal, the appellants argued that the respondents changed their evidence from discovery to trial without providing written notice as required by the Rules of Civil Procedure.

The Court of Appeal dismissed the appeal, finding that the change in evidence regarding the exact date of termination was immaterial to the outcome, as rent was not tendered on either date.

However, the Court reduced the respondents' costs of the appeal due to their failure to provide proper notice.