National Trust Co. v. Mead

National Trust Co. v. Mead

A corporate mortgagor's waiver under s.40(2) of the Limitation of Civil Rights Act does not bind an individual purchaser who assumes the mortgage by separate assumption agreement; the Assumption Agreement's language, read with the statute, was capable of and properly construed to relieve Mead of enforceable personal liability; no novation was established because the mortgagee did not intend to release the original corporate mortgagor and there was no compelling evidence of substitution.

Citation
[1990] 2 SCR 410
Parties
Appellant Mortgagee: National Trust Company; Respondent Purchaser/mortgagor: David Mead; Respondent Corporate Mortgagor: Remai Construction (1981) Inc.
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
16 August 1990
Procedural Posture
Mortgage Action Appeal / Supreme Court of Canada Final Appeal From Saskatchewan Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Mortgages, Assumption Agreements, Novation, Statutory Waiver, Mortgagee Remedies, Interpretation of Limitation of Civil Rights Act
Source Language
English
Property Law Contract Statutory Interpretation Civil Procedure Mortgages Assumption Agreements Novation Statutory Waiver +2 more

Case Brief

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Parties

National Trust Company

Appellant Mortgagee

David Mead

Respondent Purchaser/mortgagor

Remai Construction (1981) Inc.

Respondent Corporate Mortgagor

Procedural Posture

Mortgage Action Appeal / Supreme Court of Canada Final Appeal From Saskatchewan Court of Appeal

Legal Issues

  1. 1 Whether s.2(1) protection for individuals prevails over corporate waiver in s.40(2) of the Limitation of Civil Rights Act
  2. 2 Whether the wording of the Assumption Agreement makes Mead personally liable on the mortgage covenant
  3. 3 Whether the Assumption Agreement effected a novation replacing the corporate mortgagor with the individual purchaser

Ratio Decidendi

A corporate mortgagor's waiver under s.40(2) of the Limitation of Civil Rights Act does not bind an individual purchaser who assumes the mortgage by separate assumption agreement; the Assumption Agreement's language, read with the statute, was capable of and properly construed to relieve Mead of enforceable personal liability; no novation was established because the mortgagee did not intend to release the original corporate mortgagor and there was no compelling evidence of substitution.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs awarded to respondent David Mead