John M. Clarke

The plaintiff bank moved for summary judgment against a guarantor spouse seeking payment under a personal guarantee and possession of the mortgaged property securing the debt.

The responding guarantor argued that the guarantee and subsequent collateral mortgage were unenforceable due to non‑disclosure, misrepresentation, undue influence by her spouse, lack of proper independent legal advice, and unconscionability.

The court held that the bank satisfied its obligations by requiring independent legal advice and had no duty to investigate the adequacy of that advice where authentic letters were provided.

Although the marital relationship raised a presumption of undue influence, the bank rebutted the presumption through the guarantor’s repeated acknowledgments of independent legal advice and voluntary execution of the agreements.

Summary judgment was granted for the bank for the guaranteed amount and possession of the property, but leave to issue a writ of possession was denied pending better evidence regarding actual possession of the property.

The plaintiff, having been successful on an appeal from a Master's decision, sought costs of the appeal on a substantial or full indemnity scale, arguing the appeal was spurious.

The court found no basis for an elevated scale of costs, noting the defendants had a right to appeal and the single legal issue was not complex.

Costs were fixed at $4,500 on a partial indemnity scale, having regard to the principle of proportionality.

The defendants appealed an order dismissing their motion to set aside a default judgment.

The Master had found that the defendants failed to provide a plausible explanation for the default and did not have an arguable defence on the merits.

The defendants argued the Master erred in interpreting an option agreement as not being a demand obligation, which affected when the limitation period commenced.

The Divisional Court upheld the Master's decision, agreeing that the cause of action did not arise until 45 days after the option was exercised, meaning the action was commenced within the limitation period.

The appeal was dismissed.

The appellant brought an appeal under the Construction Lien Act from a Master's reasons before the report was confirmed.

The court previously found it lacked jurisdiction to hear the appeal, as the proper procedure was a motion to oppose confirmation under Rule 54.09.

In this endorsement on costs, the court awarded partial indemnity costs to the respondents for the jurisdictional issue, noting the appeal was unnecessary as the Master had advised the parties of the proper forum.

The court fixed costs at $2,500 for the first respondent and $1,500 for the second respondent.

The appellant appealed a Master's decisions interpreting Minutes of Settlement in a construction lien action regarding roof repairs.

The Divisional Court held it lacked jurisdiction to hear the appeal under section 71(1) of the Construction Lien Act because the Master's report had not yet been confirmed.

In the alternative, reviewing the merits, the court found the Master correctly interpreted the settlement agreement's definition of 'Work' and made no palpable and overriding errors of fact.

The appeal was dismissed.