Court of Appeal for Ontario

Citation: 1066360 Ontario Limited v. Ravells, 2011 ONCA 408

Date: 2011-05-25

Docket: C52371

Between:

1066360 Ontario Limited Plaintiff (Respondent)

and

Shelley Ravells and Marisa Ravells Defendants (Appellants)

Before: Armstrong, LaForme and Watt JJ.A.

Counsel:

Brian N. Radnoff, for the appellants

Michael A. Katzman, for the respondents

Heard and released orally: April 29, 2011

On appeal from the judgment of Justice D.A. Wilson of the Superior Court of Justice, dated June 23, 2010.

Endorsement

[1] The appellants seek to set aside the summary judgment in respect of monies owing on a second mortgage. They assert that the motion judge made three errors:

(1) She reversed the burden of proof.

We disagree. While the trial judge may have misstated the burden, it is our view that she was referring only to the “evidentiary” burden on the defendants.

(2) She failed to consider the interests of justice as required by rule 20.04(2.1) of the Rules of Civil Procedure before deciding the motion on the issue of credibility.

We disagree. The motion judge decided the case on the insufficiency of the evidence. The evidence was clearly insufficient to establish that there was an agreement between the appellants and the respondent that if the appellants gave up possession of the house, their liability on the second mortgage would terminate.

(3) She incorrectly found no genuine issue requiring a trial.

Again, while the motion judge may have used the wrong terminology, there is no doubt that, reading her reasons as a whole, she was satisfied there was no genuine issue requiring a trial in respect of the defence. We agree with that conclusion.

[2] The appellants sought leave to introduce fresh evidence. In our view, the fresh evidence does not satisfy the requirements of the Palmer test. In particular, it does not satisfy the requirement that the evidence could be expected to affect the result. The application to introduce fresh evidence is therefore dismissed.

[3] The appellants assert that the trial judge erred in awarding the plaintiff $3,000 for the service of notices of sale and additional charges for legal fees of $2,006 and $1,699.58 (including GST) in the absence of any evidence to support either claim. We agree. The judgment below is thereby reduced by a total of $6,705.58.

[4] The appeal is otherwise dismissed.

[5] The respondent shall have its costs in the amount of $4,500 inclusive of disbursements and applicable taxes.

“Robert P. Armstrong J.A.”

“H.S. LaForme J.A.”

“David Watt J.A.”