William W. Walker

The appellant registered a construction lien on a property owned by his estranged wife, which was subject to mortgages held by the respondents.

The respondent mortgagees successfully moved to discharge the lien under section 47 of the Construction Lien Act on the basis that it was registered in bad faith.

On appeal, the appellant argued the motion judge erred by not applying the summary judgment test under Rule 20.

The Divisional Court dismissed the appeal, holding that the motion judge properly exercised his broad discretion under section 47 and was not required to apply Rule 20 since the motion did not seek to dismiss the action.

The appellants appealed a trial judgment that declared a mortgage null and void based on promissory estoppel.

The Court of Appeal allowed the appeal, holding that promissory estoppel can only be used as a shield, not a sword, and the respondent had improperly used it to seek a declaration.

The Court set aside the judgment and ordered a new trial to determine whether there was consideration for the mortgage, as the trial judge had failed to make a finding on that issue.