DATE: 20051004

DOCKET: C42993

COURT OF APPEAL FOR ONTARIO

RE:

JOHN FOLKES AND VILMA FOLKES (Appellants/ Defendants) – and – THE MONTREAL TRUST COMPANY (Defendant/Respondent) – and – CANADA MORTGAGE AND HOUSING CORPORATION (Defendant/Respondent) – and – DAVID GOODAIRE (Respondent)

BEFORE:

WEILER, MOLDAVER and SHARPE JJ.A.

COUNSEL:

John Folkes and Vilma Folkes

in person

Bryan Whealen

for the respondent

HEARD & ENDORSED:

September 30, 2005

On appeal from the judgment of Justice David Salmers of the Superior Court of Justice dated January 5, 2005.

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

[1] The appellant’s central submission is that they cannot be liable on the mortgage as they did not sign the agreement of purchase and sale. We see no merit in this submission. Their son signed a direction that title was to be taken in all three names and the appellants signed the mortgage. We agree with the motions judge that the Marvco Colour Research Ltd. v. Harris, 1982 63 (SCC), [1982] 2 S.C.R. 774 is a complete answer to the non est factum defence. We agree with the motions judge that the appellants’ bald allegations of fraud do not give rise to a triable issue. Accordingly, the appeal is dismissed. Costs to the respondent fixed at $10,000 inclusive of GST and disbursements.