Court of Appeal for Ontario

Citation: Cushnaghan v. Kwan, 2016 ONCA 312 Date: 20160428 Docket: C60940

Judges: Doherty, MacPherson and Miller JJ.A.

Between:

Robert Cushnaghan Plaintiff (Respondent)

and

Ying Kwan Defendant (Appellant)

Counsel: Andrea M. Habas, for the appellant Craig Losell, for the respondent

Heard and released orally: April 25, 2016

On appeal from the judgment entered by Justice S.E. Healey of the Superior Court of Justice, dated July 24, 2015.

ENDORSEMENT

[1] The respondent sold his marina to the appellant. She did not make the required payments and the respondent served notice of sale under the mortgage. The parties entered into Minutes of Settlement. The appellant failed to make a payment required under the Minutes of Settlement. The respondent sued and moved for summary judgment on the Minutes of Settlement.

[2] The appellant defended, in part, by claiming a set-off arising out of damages caused to parts of the marina by a severe snow storm. The damage occurred after the marina had been sold to the appellant, but while the respondent, at the appellant’s request, was still in possession of the marina. The appellant maintained that the respondent was under a legal obligation to maintain the property and insure the property against damage caused by the snow fall. She argued that the damages caused to her property should be set-off against the amount owing to the respondent under the terms of the Minutes of Settlement.

[3] The motion judge granted summary judgment to the respondent. We agree.

[4] The motion judge in her reasons provided several reasons for allowing the motion and granting summary judgment. We focus on one.

[5] The motion judge was satisfied on the evidence that there was no duty owed by the respondent to maintain the property or to insure the property. The appellant argues that the duty arose out of the respondent’s status as a mortgagee in possession. This issue was not addressed in the court below, presumably because it was not pleaded. We would not give effect to the argument in this court.

[6] Nothing in the Minutes of Settlement can be read as imposing any duty on the respondent to maintain the property or to insure the property beyond the insurance that was on the property at the time of the Minutes. Consequently, the motion judge properly granted summary judgment to the respondent in the entire amount of the claim.

[7] The appeal is dismissed.

[8] Costs are awarded to the respondent in the amount of $11,600, inclusive of disbursements and relevant taxes.

“Doherty J.A.” “J.C. MacPherson J.A.” “Bradley W. Miller J.A.”