DATE: 20050218

DOCKET: C42423

COURT OF APPEAL FOR ONTARIO

RE:

MONTREAL TRUST COMPANY OF CANADA (Plaintiff/Respondent) – and – THE ESTATE OF JUNE VANNESS, LISA VANNESS, DELVERT VANALSTINE and CAROLYN VANALSTINE (Defendants/Appellant)

BEFORE:

MACPHERSON, SHARPE and JURIANSZ JJ.A.

COUNSEL:

Hubert Hogle

for the appellant

Stephen S. Appotive

for the respondent

HEARD & ENDORSED:

February 16, 2005

On appeal from the judgment of Justice Monique Métivier of the Superior Court of Justice dated August 19, 2004.

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

[1] The appellant argued the appeal on the basis that the mortgage fell into default in 1991, which took the cause of action against the guarantor outside the 10‑year limitation period in s. 45(1)(k) of the Limitations Act.

[2] We disagree. In our view, the motion judge’s interpretation of the mortgage and guarantee documents was correct. In particular, when the mortgage was renewed in 1994, which the original guarantee permitted, it was brought into good standing. As well, St. Hilaire v. Kraracek (1979), 1979 1705 (ON CA), 26 O.R. (2d) 499 at 503 (C.A.), which the motion judge relied on, clearly states that “a payment by a debtor to his creditor, from which a new promise to pay the debt may be inferred, has the effect of starting afresh the running of a period of limitation”. There were many such payments over the life of this mortgage, including many within the ten years before the action was commenced.

[3] We record, parenthetically, that we do not agree with the motion judge’s treatment of the issue of the appellant’s signature on the mortgage renewal. We think that the appellant’s affidavit evidence on this issue met the standard required for Rule 20 and 21 motions. However, this error does not offset the correctness of the motion judge’s disposition based on her interpretation of the relevant documents and case law.

[4] The appeal is dismissed with costs fixed at $5000 inclusive of disbursements and GST.