Eisener v. Cragg

Eisener v. Cragg

Summary judgment was granted because the plaintiff's affidavit established the $350,000 mortgage advance and non‑repayment with interest as claimed, the defendant's defence did not raise a genuine issue for trial or an arguable defence, and the court properly admitted or excused irregularities in affidavit evidence under the rules.

Citation
2012 NSSC 290
Parties
Plaintiff: Randy Eisener; Defendant: Edward Gillmor Cragg
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
25 January 2012
Procedural Posture
Foreclosure Action / Summary Judgment Motion/decision
Outcome
Summary judgment granted for the Plaintiff in the foreclosure action.
Legal Topics
Summary Judgment, Affidavit Admissibility, Hearsay, Procedural Irregularity, Proper Party
Source Language
English
Foreclosure Civil Procedure Evidence Summary Judgment Affidavit Admissibility Hearsay Procedural Irregularity Proper Party

Case Brief

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Parties

Randy Eisener

Plaintiff

Edward Gillmor Cragg

Defendant

Procedural Posture

Foreclosure Action / Summary Judgment Motion/decision

Legal Issues

  1. 1 Whether summary judgment is appropriate on the mortgage claim for $350,000
  2. 2 Whether affidavits and specific affidavit paragraphs are admissible or should be struck
  3. 3 Whether procedural irregularities justify adjournment or striking of evidence

Ratio Decidendi

Summary judgment was granted because the plaintiff's affidavit established the $350,000 mortgage advance and non‑repayment with interest as claimed, the defendant's defence did not raise a genuine issue for trial or an arguable defence, and the court properly admitted or excused irregularities in affidavit evidence under the rules.

Court Disposition

Summary judgment granted for the Plaintiff in the foreclosure action.

Orders

  • Summary judgment granted in favour of the Plaintiff Randy Eisener in respect of the $350,000 mortgage and interest as set out in the mortgage.
  • Paragraph 7 of the Plaintiff's affidavit struck as inadmissible hearsay.