Leigh Ann Sheather

This is a supplementary endorsement addressing the requirements for issuing a writ of possession under Rule 60.10 of the Rules of Civil Procedure.

The court clarified that when a moving party seeks leave to issue a writ of possession on an ex parte basis after judgment has been issued"sufficient notice of the proceeding" requires that all occupants receive full particulars of the judgment.

The court found that the plaintiff's template Notice Demanding Possession was deficient because it failed to attach a copy of the judgment and was ambiguous regarding whether judgment had actually been obtained, leaving occupants uncertain about their obligation to vacate or right to seek relief.

Following dismissal of a motion for summary judgment, the defendant sought costs of approximately $18,500 and argued the plaintiff acted unreasonably in bringing the motion.

The court considered Rules 20.06 and 57.01 of the Rules of Civil Procedure and the conduct of the parties regarding whether examinations for discovery should occur before the motion.

The plaintiff had proposed delaying the motion to conduct discoveries, consistent with guidance from appellate authority on summary judgment procedure, but the defendant opposed that approach.

The court held it was unreasonable for the defendant to resist discovery and then seek costs on the basis that the motion was improperly pursued.

Costs of the motion were therefore reserved to the trial judge.

The plaintiff bank brought a motion for summary judgment seeking recovery of a mortgage deficiency following a power of sale and dismissal of the defendant’s counterclaim.

The defendant alleged she had been subjected to undue influence by a third party and that both the bank’s representative and the lawyer acting jointly for the lender and borrower knew of the arrangement and of a prior impersonation fraud involving her identity.

The court found that the record raised serious credibility issues and factual disputes regarding undue influence, potential misrepresentation, and the conduct of the joint solicitor.

Applying the summary judgment principles from Combined Air Mechanical Services Inc. v. Flesch, the court held that a full appreciation of the evidence required a trial.

The motion for summary judgment was therefore dismissed.

The appellant appealed a summary judgment ordering him to pay approximately $500,000 and deliver possession of his property to the respondent bank.

The bank had demanded payment on a secured line of credit after the Canada Revenue Agency registered a lien against the property without the bank's consent, which violated the loan contract.

The Court of Appeal dismissed the appeal, finding that the appellant's allegations of identity fraud did not alter the fact that the contract was breached by the CRA lien.

The court also upheld the dismissal of the appellant's counterclaim and the award of substantial indemnity costs.

The appellant appealed a summary judgment dismissing her action and granting the respondent bank's counterclaim for monies owed under a residential mortgage.

The appellant argued that as an innocent victim of mortgage fraud, the bank should bear the loss as it was in a superior position to avoid the fraud.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellant was in the best position to detect the fraud had she read the documents she signed.

Furthermore, the appellant was not entirely innocent, having agreed to serve as an accommodation mortgagor for a stranger for compensation, thereby actively facilitating the fraudulent scheme.

The appellant appealed a summary judgment in favour of the respondent bank for $383,755 owing on a line of credit.

The appellant admitted to borrowing the funds but argued that a new line of credit agreement should have been issued after the original balance was temporarily paid down upon the sale of his home.

The Court of Appeal dismissed the appeal, finding no evidence of a second agreement and affirming the bank's right to demand payment under the original agreement.