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The motion judge correctly concluded the 1213 Action was substantively duplicative of the 544 Action and an abuse of process; issues about who is liable under the Mortgage must be determined in the 544 Action (including by motion to add parties), and the motion judge's factual findings were entitled to deference.
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The court exercised its discretion to require security for costs because an unpaid costs order existed, the appellant had indicated she would not pay that order, she had not prosecuted the appeal with diligence, and the appeal's merits were weak; accordingly the court ordered payment of prior costs and $19,000 security into court and awarded costs of $3,000 on the motion, with failure to comply to result in dismissal of the appeal on motion.
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On the record the court upheld the trial judge's factual findings that the $2.5 million payments were made as part of a negotiated settlement and constituted valid consideration (forbearance/compromise), that the parties were acting at arm's length, that the payments were outside the applicable one-year BIA review period and were not made with intent to defraud creditors; accordingly the payments were not void as transfers at undervalue under the BIA, not unjust preferences under the APA, not fraudulent conveyances under the FCA, not oppressive under the OBCA, and did not give rise to unjust…
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Majority held the mortgage discharge statement is personal information of the debtors; clause 4.3.6 does not authorize implied consent for a mortgagee to disclose that sensitive information to a third party judgment creditor; ss.3 and 5(3) do not override the consent requirement; Execution Act s.28 does not by itself require disclosure; disclosure without consent is only authorized if a court order or rules of court (e.g. an order under rule 60.18(6)(a) together with r.34.10) compels production, so RBC's motion failed and the appeal is dismissed; RBC may pursue a rule 60.18(6)(a) motion to ob…
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The guarantee was a continuing guarantee tied to the mortgage; the 1989 and 1990 renewal letters did not novate or extinguish the 1987 guarantee; alleged representations were vague, lacked requisite clarity, consideration, and authority to effect a release, and the elements for promissory estoppel or estoppel for unconscionability were not proven; therefore the trial judgment enforcing the guarantee for $245,110.14 plus interest was correctly affirmed and the appeal dismissed.
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The Supreme Court of Canada held that the solicitors were personally liable on their assurance to pay the steel supplier from mortgage advances, and rejected equitable assignment.
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