M.I. Rotman

The plaintiff sought summary judgment for a defaulted second mortgage.

While the parties agreed on the mortgage's maturity and the principal amount owing, they disputed the exact date of default, the amount of interest owed, and other damage claims, including NSF cheque fees and alleged cash payments by the guarantor.

The court granted summary judgment on the core issues of mortgage default and the principal amount owing, entitling the plaintiff to an order for possession and to continue the sale process.

However, due to genuine issues requiring a trial regarding the specific amounts payable, a reference was directed under Rule 64.06 of the Rules of Civil Procedure to determine these disputed amounts.

The plaintiff moved for summary judgment against the defendants for default on a third mortgage.

The defendants argued there was a genuine issue for trial, claiming an oral agreement that the mortgage was merely security for construction work and no payments were required.

The court held that evidence of the oral agreement was inadmissible under both the Statute of Frauds and the parol evidence rule, as it directly contradicted the clear terms of the written mortgage and guarantee.

Finding no genuine issue for trial, the court granted summary judgment for the principal amount and ordered a reference to determine the remaining amounts due.