Court File and Parties
Court of Appeal for Ontario
Before: Goudge, Feldman and Rouleau JJ.A.
Between:
Southbay Corporation Plaintiff(s) Appellant(s)
and
Investors Group Trust Co. Ltd. Defendant(s) Respondent(s)
Counsel: F. Scott Turton for the appellant Southbay Kelly L. Webster for the respondent Investors Group
Heard and endorsed: September 16, 2008
On appeal from the order of Justice J. N. Morissette of the Superior Court of Justice dated January 21, 2008.
Appeal Book Endorsement
1We do not read the reasons appealed from as precluding the appellant from raising in the deficiency action the allegations of wilful default by the mortgagee. The basis for staying the action for an accounting was rather that it constitutes a duplication of the deficiency action. The respondent agrees that the wilful default allegations can be pursued in the deficiency action and indeed we are told the appellant has pleaded them there. The reality remains that the motion judge properly exercised her discretion on the basis that the stayed proceeding is a redundancy. Appeal dismissed. Costs to the respondent fixed at $8,500.