1066360 Ontario Limited v. Ravells
The motion judge did not err in granting summary judgment because the defendants failed to adduce sufficient evidence to establish an agreement terminating their liability on the second mortgage; the application to adduce fresh evidence failed the Palmer test because it could not be expected to affect the result;...
Source-derived case information.
- Citation
- 2011 ONCA 408
- Parties
- Plaintiff (respondent): 1066360 Ontario Limited; Defendant (appellant): Shelley Ravells; Defendant (appellant): Marisa Ravells
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 25 May 2011
- Procedural Posture
- Collection / Appeal From Summary Judgment (court of Appeal)
- Outcome
- Appeal dismissed except insofar as the judgment was reduced by $6,705.58; application to introduce fresh evidence dismissed; costs awarded to respondent.
- Legal Topics
- Summary Judgment, Fresh Evidence (palmer Test), Burden of Proof, Costs, Notice of Sale, Second Mortgage, Credibility, Rule 20.04(2.1)
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
1066360 Ontario Limited
Plaintiff (respondent)
Shelley Ravells
Defendant (appellant)
Marisa Ravells
Defendant (appellant)
Procedural Posture
Collection / Appeal From Summary Judgment (court of Appeal)
Legal Issues
- 1 Whether summary judgment on monies owing on a second mortgage should be set aside
- 2 Whether the motion judge reversed the burden of proof
- 3 Whether the motion judge failed to consider the interests of justice under rule 20.04(2.1) before deciding credibility
Ratio Decidendi
The motion judge did not err in granting summary judgment because the defendants failed to adduce sufficient evidence to establish an agreement terminating their liability on the second mortgage; the application to adduce fresh evidence failed the Palmer test because it could not be expected to affect the result; however, certain awards for notices of sale and legal fees lacked evidentiary support and the judgment was reduced accordingly.
Court Disposition
Appeal dismissed except insofar as the judgment was reduced by $6,705.58; application to introduce fresh evidence dismissed; costs awarded to respondent.
Orders
- Application to introduce fresh evidence dismissed
- Summary judgment in favour of plaintiff upheld
Full Case Text
Judgment text and source record
1 paragraphs
1066360 Ontario Limited v. Ravells Collection Decisions of the Court of Appeal Date 2011-05-25 Neutral citation 2011 ONCA 408 Docket numbers C52371 Judges Armstrong, Robert Patrick; LaForme, Harry Smith; Watt, David Subject Civil Decision Content CITATION: 1066360 Ontario Limited v. Ravells, 2011 ONCA 408 DATE: 20110525 DOCKET: C52371 COURT OF APPEAL FOR ONTARIO Armstrong, LaForme and Watt JJ.A. BETWEEN 1066360 Ontario Limited Plaintiff (Respondent) and Shelley Ravells and Marisa Ravells Defendants (Appellants) Brian N. Radnoff, for the appellants Michael A. Katzman, for the respondents Heard and released orally: April 29, 2011 On appeal from the judgment of Justice D.A. Wilson of the Superior Court of Justice, dated June 23, 2010. ENDORSEMENT [1] The appellants seek to set aside the summary judgment in respect of monies owing on a second mortgage. They assert that the motion judge made three errors: (1) She reversed the burden of proof. We disagree. While the trial judge may have misstated the burden, it is our view that she was referring only to the “evidentiary” burden on the defendants. (2) She failed to consider the interests of justice as required by rule 20.04(2.1) of the Rules of Civil Procedure before deciding the motion on the issue of credibility. We disagree. The motion judge decided the case on the insufficiency of the evidence. The evidence was clearly insufficient to establish that there was an agreement between the appellants and the respondent that if the appellants gave up possession of the house, their liability on the second mortgage would terminate. (3) She incorrectly found no genuine issue requiring a trial. Again, while the motion judge may have used the wrong terminology, there is no doubt that, reading her reasons as a whole, she was satisfied there was no genuine issue requiring a trial in respect of the defence. We agree with that conclusion. [2] The appellants sought leave to introduce fresh evidence. In our view, the fresh evidence does not satisfy the requirements of the Palmer test. In particular, it does not satisfy the requirement that the evidence could be expected to affect the result. The application to introduce fresh evidence is therefore dismissed. [3] The appellants assert that the trial judge erred in awarding the plaintiff $3,000 for the service of notices of sale and additional charges for legal fees of $2,006 and $1,699.58 (including GST) in the absence of any evidence to support either claim. We agree. The judgment below is thereby reduced by a total of $6,705.58. [4] The appeal is otherwise dismissed. [5] The respondent shall have its costs in the amount of $4,500 inclusive of disbursements and applicable taxes. “Robert P. Armstrong J.A.” “H.S. LaForme J.A.” “David Watt J.A.”