The Bank of Nova Scotia v. Gillespie

The Bank of Nova Scotia v. Gillespie

The Court upheld the motion judge's grant of summary judgment for possession and on the covenant, concluding the wife benefitted from the mortgage advances, was a sophisticated party so non est factum could be rejected notwithstanding lack of independent legal advice, and only the quantum owing on the covenant required a trial.

Citation
C44259
Parties
Plaintiff/respondent: The Bank of Nova Scotia; Defendant/appellant: John Gillespie; Defendant/appellant: Donna Gillespie
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
20 March 2006
Procedural Posture
Civil Appeal Mortgage Possession and Covenant / Court of Appeal Decision (appeal From Superior Court Motion for Summary Judgment)
Outcome
Appeal dismissed in part; summary judgment for possession and on the covenant affirmed; trial ordered limited to quantum owing on the covenant; costs awarded to respondent.
Legal Topics
Summary Judgment, Mortgage Possession, Covenant, Non Est Factum, Independent Legal Advice, Costs
Source Language
English
Civil Property Law Civil Procedure Contract Equity Summary Judgment Mortgage Possession Covenant +3 more

Case Brief

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Parties

The Bank of Nova Scotia

Plaintiff/respondent

John Gillespie

Defendant/appellant

Donna Gillespie

Defendant/appellant

Procedural Posture

Civil Appeal Mortgage Possession and Covenant / Court of Appeal Decision (appeal From Superior Court Motion for Summary Judgment)

Legal Issues

  1. 1 Whether the motion judge erred in granting summary judgment for possession and on the covenant
  2. 2 Whether the appellants could rely on non est factum given the circumstances
  3. 3 Whether the wife required independent legal advice and whether lack thereof vitiated the transaction

Ratio Decidendi

The Court upheld the motion judge's grant of summary judgment for possession and on the covenant, concluding the wife benefitted from the mortgage advances, was a sophisticated party so non est factum could be rejected notwithstanding lack of independent legal advice, and only the quantum owing on the covenant required a trial.

Court Disposition

Appeal dismissed in part; summary judgment for possession and on the covenant affirmed; trial ordered limited to quantum owing on the covenant; costs awarded to respondent.

Orders

  • Summary judgment for possession and on the covenant affirmed
  • Trial directed on the issue of the quantum owing on the covenant only