Temple v. Moorey

Temple v. Moorey

The motion judge erred by restricting consideration to non est factum and equitable set-off and failing to treat the legitimacy of the promissory notes as a possibly meritorious defence raised by the pleadings and affidavits; accordingly the partial summary judgment was set aside and the matter remitted with directions for document production, amendment of pleadings and a renewed summary judgment process.

Citation
2020 ONCA 148
Parties
Plaintiff/respondent: Nicholas Temple; Plaintiff/respondent: Susan Temple; Defendant/appellant: Richard Moorey; Defendant/appellant: Charleen Moorey
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
24 February 2020
Procedural Posture
Civil Appeal From Superior Court Summary Judgment / Court of Appeal Decision; Order Set Aside and Remitted for Further Proceedings
Outcome
Appeal allowed in part; order below set aside and partial summary judgment set aside; matter remitted to Superior Court with specific procedural directions.
Legal Topics
Summary Judgment, Promissory Notes, Non Est Factum, Equitable Set Off, Document Production, Writ of Seizure and Sale
Source Language
English
Civil Procedure Contract Summary Judgment Promissory Notes Non Est Factum Equitable Set Off Document Production Writ of Seizure and Sale

Case Brief

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Parties

Nicholas Temple

Plaintiff/respondent

Susan Temple

Plaintiff/respondent

Richard Moorey

Defendant/appellant

Charleen Moorey

Defendant/appellant

Procedural Posture

Civil Appeal From Superior Court Summary Judgment / Court of Appeal Decision; Order Set Aside and Remitted for Further Proceedings

Legal Issues

  1. 1 Whether the motion judge erred in limiting the analysis to non est factum and equitable set-off and failing to consider legitimacy of the promissory notes as a defence
  2. 2 Whether the partial summary judgment should be set aside under r.37.14(1)(b) given the pleadings and affidavits
  3. 3 Appropriate procedural steps to permit full adjudication of the disputed issues

Ratio Decidendi

The motion judge erred by restricting consideration to non est factum and equitable set-off and failing to treat the legitimacy of the promissory notes as a possibly meritorious defence raised by the pleadings and affidavits; accordingly the partial summary judgment was set aside and the matter remitted with directions for document production, amendment of pleadings and a renewed summary judgment process.

Court Disposition

Appeal allowed in part; order below set aside and partial summary judgment set aside; matter remitted to Superior Court with specific procedural directions.

Orders

  • The writ of seizure and sale shall remain in place pending further order of the Superior Court
  • The respondents shall produce any and all documents in their possession within 14 days of today’s date