TCC Mortgage Holdings Inc. v. Alysen Place Developments Inc.

TCC Mortgage Holdings Inc. v. Alysen Place Developments Inc.

The court held that Bergen and Pilot Pacific raised bona fide triable issues going to the root of TCC's claims because their affidavit evidence, supported by contemporaneous documents, could engage recognized exceptions to the parol evidence rule (fraudulent misrepresentation or a collateral/umbrella agreement), and admissibility and weight of that evidence could not be finally determined on this application; accordingly the matter must be referred to the trial list.

Citation
2011 BCSC 383
Parties
Petitioner: TCC Mortgage Holdings Inc.; Respondent: Alysen Place Developments Inc.; Respondent: Pilot Pacific Developments Inc.; Respondent: Jacob Bergen also known as Jacob Elias Bergen; Respondent: The Owners, Strata Plan KAS3558; Respondent: Westport Manufacturing Co. Ltd.; Respondent: Bildx Construction Inc.; Respondent: Viewpoint Landscape Architects Inc.; Respondent: Yoneda Professional Enterprises Ltd.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
30 March 2011
Procedural Posture
Foreclosure / Application to Refer Liability of Guarantors to Trial List (chambers Application)
Outcome
Application granted in part: issues as to liability of Jacob Bergen and Pilot Pacific referred to the trial list
Legal Topics
Foreclosure, Guarantee, Parol Evidence Rule, Misrepresentation, Collateral Agreement, Estoppel, Referral to Trial List, Admissibility of Evidence
Source Language
English
Property Law Contract Law Equity Civil Procedure Insolvency Foreclosure Guarantee Parol Evidence Rule +5 more

Case Brief

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Parties

TCC Mortgage Holdings Inc.

Petitioner

Alysen Place Developments Inc.

Respondent

Pilot Pacific Developments Inc.

Respondent

Jacob Bergen also known as Jacob Elias Bergen

Respondent

The Owners, Strata Plan KAS3558

Respondent

Westport Manufacturing Co. Ltd.

Respondent

Bildx Construction Inc.

Respondent

Viewpoint Landscape Architects Inc.

Respondent

Yoneda Professional Enterprises Ltd.

Respondent

Procedural Posture

Foreclosure / Application to Refer Liability of Guarantors to Trial List (chambers Application)

Legal Issues

  1. 1 Whether there is a bona fide triable issue as to the liability of guarantors under guarantees given to secure loans
  2. 2 Whether parol evidence (oral representations, collateral or umbrella agreements) is admissible to rebut or limit written guarantees
  3. 3 Whether alleged misrepresentation, collateral agreement or estoppel defeats enforcement of guarantees

Ratio Decidendi

The court held that Bergen and Pilot Pacific raised bona fide triable issues going to the root of TCC's claims because their affidavit evidence, supported by contemporaneous documents, could engage recognized exceptions to the parol evidence rule (fraudulent misrepresentation or a collateral/umbrella agreement), and admissibility and weight of that evidence could not be finally determined on this application; accordingly the matter must be referred to the trial list.

Court Disposition

Application granted in part: issues as to liability of Jacob Bergen and Pilot Pacific referred to the trial list

Orders

  • TCC to file and serve its Notice of Civil Claim within two weeks
  • Jacob Bergen and Pilot Pacific to file their Response to Civil Claim within two weeks of service