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The appeal is dismissed because the motion judge did not err in refusing an adjournment, and correctly granted summary judgment: the uncontradicted evidence established the Furneys owed the amounts claimed on the promissory notes and mortgage and there was no genuine issue for trial; awarding no costs against Hashemi was not an error where costs were not sought against him.
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The court reduced a $4.5 million holdback from a Partition of Property Act sale to $2.5 million and ordered $1 million paid to each side.
The trial judge erred by applying the wrong Limitation Act analysis; the 2013 advances were demand loans (or in law treated as repayable on demand) so the limitation period began on demand and the demands were within two years of the Amended Application, therefore the claim against Ridgeway for $341,000 was not statute barred; additionally, there was no basis to find the wife personally liable for the 2012 advance made by the husband's corporation and the child support calculation required correction.
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Appeal allowed: the applications judge breached procedural fairness by deciding the case on an unpleaded issue (the nature/capacity of Parsons' signature) and by failing to consider operative 2016 agreements that were relevant to whether the $400,000 had been satisfied; the judge also relied on irrelevant evidence and awarded monetary damages that were not pleaded or sought; order set aside and matter remitted to the Supreme Court without prejudice.
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The application judge erred in principle by dismissing the application without prejudice while identifying a determinative issue (the validity of the assignment) and thereby deferring resolution to a new proceeding; instead the judge should have directed the trial of the issue or the whole application under r.38.10(1)(b) and remained seized to avoid multiplicity of proceedings and to satisfy proportionality obligations under s.138 of the Courts of Justice Act and r.1.04(1.1); the appropriate remedy is to set aside the order and remit the application to the Superior Court for further direction…
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The motion judge’s finding that a debt was owing was supported by evidence and the owner’s consent to registration; the respondent, as assignee and registered mortgagee, is a bona fide purchaser for value whose registered interest takes priority over any unregistered beneficial trust interests of the appellants, and the valid assignment provides a juristic reason negating unjust enrichment, therefore the appeal is dismissed.
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The Forbearance Agreement, read in its text and context, unambiguously assigned the full outstanding indebtedness to CVC such that on default the larger sum was recoverable; discretionary relief under s.98 was not appropriate because the transaction was not unconscionable and the equities did not favor the appellant; therefore the motion judge did not err and the appeal is dismissed.
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Section 5(1) of the Small Claims Court Act precludes a corporate assignee who is not an original party to the contract from bringing a claim in Small Claims Court; EOS is an assignee and not an original party to the Mastercard agreement with Canadian Tire Bank, therefore the Small Claims Court lacks jurisdiction and the claim must be dismissed (with the claimant free to reinitiate in Supreme Court).
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The court held a purported assignment of a loan claim did not satisfy s. 36 of the Law and Equity Act without prior written notice, but allowed amendment to pursue an equitable assignment.
Because the evidence showed the contract was between All Season Contracting 2012 Limited and the defendant Mr. Quillan, and there was no evidence that Mr. McCarthy had been assigned the claim or otherwise held the contractual right personally, McCarthy lacked standing to sue in his own name; accordingly his claim was dismissed.
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