DATE: 20060320

DOCKET: C44259

COURT OF APPEAL FOR ONTARIO

RE:

THE BANK OF NOVA SCOTIA (Plaintiff/Respondent) – and – JOHN GILLESPIE and DONNA GILLESPIE (Defendants/ Appellants)

BEFORE:

LABROSSE, SHARPE and CRONK JJ.A.

COUNSEL:

Norman Bergstein

for the defendants/appellants

Mitchell Solish

for the plaintiff/ respondent

HEARD & RELEASED ORALLY:

March 16, 2006

On appeal from the judgment of Justice Romain Pitt of the Superior Court of Justice dated August 30, 2005.

E N D O R S E M E N T

[1] We are not persuaded that the motion judge erred in granting summary judgment for possession and on the covenant and directing a trial on the issue as to the quantum owing on the covenant.

[2] The appellants submit that this was a “business loan” to benefit the husband’s business and that the appellant Donna Gillespie should have had independent legal advice. The appellant husband failed to file an affidavit to explain his version of this transaction. However, on the record before us it is clear that a substantial portion of the funds advanced under the mortgage went to discharge an existing mortgage and to deposit funds in the appellants’ joint bank account. The wife accordingly benefited from this transaction. Moreover, she is a sophisticated party who had engaged in several prior mortgages. In our view, it was open to the motion judge to reject her non est factum defence on this record despite the fact that she did not have independent legal advice.

[3] Given our disposition as to this issue, it is unnecessary for us to deal with the question of whether the appeal was filed out of time.

[4] Costs to the respondent fixed at $5,000 inclusive of disbursements and G.S.T.

“J.M. Labrosse J.A.”

“Robert J. Sharpe J.A.”

“E.A. Cronk J.A.”