Risley v. MacDonald

Risley v. MacDonald

Fresh evidence was inadmissible because it failed the Palmer due diligence requirement; the motions judge correctly concluded that contemporaneous emails and communications by the appellant contradicted his later affidavit, so his self-serving assertions did not raise a genuine issue of material fact under Rule 13.04; further, the appellant’s February 19 and March 12, 2019 emails constituted written acknowledgements restarting the limitation period under the Limitation of Actions Act, thus the limitation defence had no real chance of success; accordingly summary judgment and the order for payment of $10,000,000 (with guarantee exposure) were upheld and the appeal dismissed.

Citation
2022 NSCA 76
Parties
Appellant: John Carter Risley; Appellant: Lobster Point Holdings Limited; Respondent: Judith Iris MacDonald (formerly Risley)
Court
Nova Scotia Court of Appeal
Jurisdiction
Canada
Judgment Date
9 December 2022
Procedural Posture
Civil Appeal / Court of Appeal Decision on Summary Judgment Appeal
Outcome
Motion to adduce fresh evidence dismissed; appeal dismissed; summary judgment below ordering payment of $10,000,000 upheld; costs awarded to respondent
Legal Topics
Summary Judgment, Fresh Evidence (palmer Test), Acknowledgment of Debt, Promissory Note and Guarantee, Limitations Defence, Electronic Communications as Written Acknowledgments, Set Off/credits
Source Language
English
Family Law Civil Procedure Contract Law Limitation Law Corporate Law Summary Judgment Fresh Evidence (palmer Test) Acknowledgment of Debt +4 more

Case Brief

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Parties

John Carter Risley

Appellant

Lobster Point Holdings Limited

Appellant

Judith Iris MacDonald (formerly Risley)

Respondent

Procedural Posture

Civil Appeal / Court of Appeal Decision on Summary Judgment Appeal

Legal Issues

  1. 1 Whether leave to appeal should be granted
  2. 2 Whether fresh evidence should be admitted on appeal (Palmer test)
  3. 3 Whether the motions judge erred in finding no genuine issue of material fact requiring a trial on the $10,000,000 debt

Ratio Decidendi

Fresh evidence was inadmissible because it failed the Palmer due diligence requirement; the motions judge correctly concluded that contemporaneous emails and communications by the appellant contradicted his later affidavit, so his self-serving assertions did not raise a genuine issue of material fact under Rule 13.04; further, the appellant’s February 19 and March 12, 2019 emails constituted written acknowledgements restarting the limitation period under the Limitation of Actions Act, thus the limitation defence had no real chance of success; accordingly summary judgment and the order for payment of $10,000,000 (with guarantee exposure) were upheld and the appeal dismissed.

Court Disposition

Motion to adduce fresh evidence dismissed; appeal dismissed; summary judgment below ordering payment of $10,000,000 upheld; costs awarded to respondent

Orders

  • Motion to adduce fresh evidence dismissed
  • Appeal dismissed