2 total
CBCA appeal transferred to Court of Appeal due to lack of Divisional Court jurisdiction.
The appellant appealed the dismissal of an oppression application involving two closely held companies, one incorporated under the OBCA and the other under the CBCA.
The Divisional Court noted a jurisdictional issue, as appeals under the CBCA lie to the Court of Appeal, while OBCA appeals lie to the Divisional Court.
To avoid divided jurisdiction, the Divisional Court transferred the CBCA appeal to the Court of Appeal pursuant to s. 110 of the Courts of Justice Act and adjourned the OBCA appeal to allow the appellant to seek a transfer of that matter to the Court of Appeal under s. 6 of the Courts of Justice Act.
The court dismissed an application to discharge a mortgage because the transfer of charge predated the final payment.
The applicant sought an order to discharge a mortgage, arguing that the underlying debt had been paid in full.
The respondents contended that an oral agreement existed for the mortgage to be assigned and held as security for the applicant's performance of other contractual obligations.
The court dismissed the application, finding that the transfer of charge to the respondent occurred *before* the final payment to the original mortgagee, meaning the assigned mortgage was not a nil-balance mortgage.
The court determined that the remaining issues, involving the interpretation of an agreement of purchase and sale and a disputed oral agreement, were not suitable for resolution by application under Rule 14.05(3)(e) and (f) or s. 12(8) of the Mortgages Act, and should proceed by way of statement of claim.
A request for a Certificate of Pending Litigation was also dismissed as the title to the land was not in dispute in the application.
