Jeb Assaf

The Plaintiffs moved for summary judgment against Ashok and Usha Badhwar on a written guarantee secured by a mortgage, and for default judgment against Rochak Badhwar for an unpaid debt of $938,919.12.

The Badhwars raised the defence of non est factum, claiming they did not know what they were signing and that there was no consideration for the guarantee.

The court found no misrepresentation to support the non est factum defence, as conceded by Badhwar on cross-examination.

The defence of no consideration due to the guarantee being signed after loan monies were advanced was not considered because it was not properly pleaded.

Applying the principles from Hryniak v. Mauldin, the court found no genuine issue requiring a trial and granted judgment against Rochak and the Badhwars, allowing enforcement of the mortgage.

Stewart Title Guaranty Company, as a third party, brought a motion seeking an order to conduct invasive inspections of the plaintiffs' property to assess building deficiencies and repair costs.

The plaintiffs opposed, citing concerns about invasiveness and potential damage.

The court granted the motion under Rule 32.01 of the Rules of Civil Procedure, finding the inspection necessary for the proper determination of damages.

The court emphasized that Stewart Title's undertaking to restore the property to its previous condition alleviated the plaintiffs' concerns regarding potential damage from the invasive testing.

The defendants moved to set aside a default judgment in a mortgage enforcement action.

The court, on its own motion, stayed the entire proceeding pursuant to s. 106 of the Courts of Justice Act, finding that the plaintiff had initiated a second action for the same debt while an earlier, defended action was still pending.

The court deemed this an abuse of process, setting aside the default judgment and staying the current action in favour of the earlier one, reserving costs to be dealt with in the 2011 action.