Lee Guarino

The defendant brought a motion for summary judgment, arguing the plaintiff's action on a $138,000 promissory note was statute-barred.

The central issue was whether the plaintiff made a clear demand for payment in 2012, which would have triggered the limitation period.

The court found that determining when a demand was made required assessing credibility, which could not be fairly done on a paper record or through a mini-trial.

The motion for summary judgment was dismissed, and the matter was ordered to proceed to trial.

The respondent moved to quash the appellant's appeal from an order dismissing a motion to set aside a default judgment, arguing the appeal lay to the Divisional Court because the monetary judgment was under $50,000.

The Court of Appeal dismissed the motion to quash, holding that because the default judgment also included an order to deliver up personal property, the appeal properly lay to the Court of Appeal, as the Divisional Court's jurisdiction under s. 19 of the Courts of Justice Act is strictly monetary and does not extend to the recovery of personal property.

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.

The appellant appealed a decision of a Master in a construction lien matter.

The central issue was whether a subsequent project constituted a new contract or an amendment to an earlier contract within the meaning of section 1(1) of the Construction Lien Act.

The Divisional Court held that this determination is a pure question of fact.

Finding no demonstrated error in principle and noting that there was evidence to support the Master's conclusion that it was a new contract, the court dismissed the appeal and awarded costs to the respondent.