Cushnaghan v. Kwan

Cushnaghan v. Kwan

The Minutes of Settlement did not impose any duty on the respondent to maintain or insure the property beyond existing insurance; the appellant’s claimed set-off based on storm damage failed because no duty was established and the mortgagee‑in‑possession argument was not pleaded or properly before the court, so summary judgment for the respondent for the full amount was properly granted.

Citation
2016 ONCA 312
Parties
Plaintiff (respondent): Robert Cushnaghan; Defendant (appellant): Ying Kwan
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
28 April 2016
Procedural Posture
Civil Appeal / Appeal From Superior Court (summary Judgment)
Outcome
Appeal dismissed; summary judgment for respondent affirmed.
Legal Topics
Summary Judgment, Minutes of Settlement, Set Off, Mortgagee in Possession, Insurance Obligation, Costs
Source Language
English
Contract Property Law Mortgage Law Civil Procedure Summary Judgment Minutes of Settlement Set Off Mortgagee in Possession +2 more

Case Brief

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Parties

Robert Cushnaghan

Plaintiff (respondent)

Ying Kwan

Defendant (appellant)

Procedural Posture

Civil Appeal / Appeal From Superior Court (summary Judgment)

Legal Issues

  1. 1 Whether respondent owed a duty to maintain or insure the property while in possession
  2. 2 Whether appellant could claim a set-off for storm damage against amounts due under the Minutes of Settlement
  3. 3 Whether the mortgagee‑in‑possession argument could be raised on appeal when not pleaded below

Ratio Decidendi

The Minutes of Settlement did not impose any duty on the respondent to maintain or insure the property beyond existing insurance; the appellant’s claimed set-off based on storm damage failed because no duty was established and the mortgagee‑in‑possession argument was not pleaded or properly before the court, so summary judgment for the respondent for the full amount was properly granted.

Court Disposition

Appeal dismissed; summary judgment for respondent affirmed.

Orders

  • Summary judgment granted to respondent in the entire amount claimed under the Minutes of Settlement.
  • Costs awarded to the respondent in the amount of $11,600 inclusive of disbursements and taxes.