Court of Appeal for Ontario

Date: 20200221 Docket: C67221

Judges: Simmons, van Rensburg and Harvison Young JJ.A.

Between:

Nicholas Temple and Susan Temple Plaintiffs (Respondents)

And

Richard Moorey and Charleen Moorey Defendants (Appellants)

Counsel:

Tim Gleason, for the appellants Mike Maher, for the respondents

Heard: February 18, 2020

On appeal from the order of Justice Helen M. Pierce of the Superior Court of Justice, dated July 30, 2019 with reasons reported at 2019 ONSC 3723.

Appeal Book Endorsement

[1] The motion judge dismissed the appellants’ r. 37.14(1)(b) motion to set aside the partial summary judgment because she found the appellants’ defences had no merit.

[2] In our view, the motion judge erred in isolating non est factum and equitable set-off as the only possible defences when the pleadings and affidavits raised the legitimacy of the promissory notes as a possible defence. In all the circumstances the order below is set aside and the partial summary judgment is set aside on the following terms:

1. The writ of seizure and sale shall remain in place pending further order of the Superior Court;
2. The respondents shall produce any and all documents in their possession within 14 days of today’s date;
3. The appellants shall deliver any amended statement of defence and counterclaim within 21 days of today’s date;
4. The respondents may move for summary judgment thereafter on 21 days’ notice to the appellants; and
5. The appellants shall deliver responding materials at least 4 days prior to the return date of any summary judgment motion.

Any non-compliance with these terms shall be dealt with on the return date of the summary judgment motion.

[3] No order as to costs of the appeal. Costs of the proceeding below are reserved to the judge hearing the summary judgment motion.