DATE: 20030526

DOCKET: C38049

COURT OF APPEAL FOR ONTARIO

RE: THE BANK OF NOVA SCOTIA (Plaintiff (Respondent)) – and – LORNA ROBYN ISAACS and BERNARD ISAACS (Defendants (Appellants))

BEFORE: MOLDAVER, GOUDGE and CRONK JJ.A.

COUNSEL: Howard Wolch for the appellant Bernard Isaacs

Mark Hartman for the respondent

HEARD & ENDORSED: May 23, 2003

On appeal from the judgment of Justice Rose Boyko of the Superior Court of Justice dated March 7, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] In the circumstances, given the conduct of the appellant on the day of the motion, it was within the motion judge’s discretion to proceed as she did. We see no evidence of bias or apparent bias and we are satisfied that the appellant received a fair hearing.

[2] With respect to the merits, we agree with the motions judge that there is no genuine issue for trial. The respondent Bank did not take possession of the property and was free to enforce its security to collect the debt owing in accordance with the contractual arrangements between the parties. To the extent that there was any duty on the Bank, in these circumstances, to act in a commercially reasonable fashion, we are satisfied that it did so. Accordingly, the appeal is dismissed. Costs to the respondent on a partial indemnity basis fixed at $7,500 inclusive of GST and disbursements.