Valerie Edwards

The appellants appealed a decision granting priority to the respondent's equitable mortgage over their registered mortgage.

The Court of Appeal upheld the application judge's finding that the appellants had actual notice of the intended priority of the respondent's mortgage, meaning s. 93(3) of the Land Titles Act did not preclude the equitable mortgage from having priority.

The appeal was dismissed, with minor amendments to the formal order regarding subsequent encumbrancers and notice for power of sale.

The moving party sought an extension of time to serve and file a notice of appeal after missing the 30-day deadline by one day due to a failed facsimile transmission.

The moving party also argued the time period did not commence until the trial judge disposed of costs.

The Court of Appeal granted the extension, finding that the moving party had a firm intention to appeal, the delay was adequately explained by inadvertence, and the justice of the case favoured an extension as there was no prejudice to the responding parties.