B2B Trust (Landry) v. Tivey, (2014) 353 N.S.R.(2d) 300 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 30, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 353 N.S.R.(2d) 300 (SC);2014 NSSC 426

B2B Trust v. Tivey (2014), 353 N.S.R.(2d) 300 (SC);

    1115 A.P.R. 300

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. DE.017

B2B Trust in Trust for Nora Landry (appellant) v. Ann Valerie Tivey (respondent)

(Hfx. No. 423272A; 2014 NSSC 426)

Indexed As: B2B Trust (Landry) v. Tivey

Nova Scotia Supreme Court

Rosinski, J.

December 2, 2014.

Summary:

The plaintiff sought to recover a deficiency judgment against the defendant. The defendant raised the defence of non est factum, claiming that she thought she was signing the mortgage solely as security, not realizing that there was a possibility that she would be called upon for a deficiency.

An Adjudicator of the Nova Scotia Small Claims Court dismissed the claim against the defendant, holding that she was entitled to rely on non est factum. The plaintiff appealed.

The Nova Scotia Supreme Court dismissed the appeal.

Contracts - Topic 1601

Formation of contract - Mistake or misrepresentation - Plea of non est factum - The Nova Scotia Supreme Court referred to the elements of the defence of non est factum - See paragraph 17.

Contracts - Topic 1601

Formation of contract - Mistake or misrepresentation - Plea of non est factum - The defendant resisted the plaintiff's claim for a deficiency under a mortgage, relying on non est factum - A small claims adjudicator allowed the non est factum defence - The plaintiff appealed - The Nova Scotia Supreme Court dismissed the appeal - The adjudicator correctly determined that there was a fundamental and radical difference between the defendant being legally obligated for repayment of monies owing under the signed document, and her merely consenting to the property being encumbered in order to allow her husband to obtain monies for which he would be solely responsible - The defendant was sufficiently careful when she signed the documents such that she could rely on non est factum - The adjudicator properly cited and applied the law.

Cases Noticed:

Flynn v. Halifax (Regional Municipality) et al. (2005), 232 N.S.R.(2d) 293; 737 A.P.R. 293; 2005 CarswellNS 198; 2005 NSCA 81, refd to. [para. 7].

Marvco Color Research Ltd. v. Harris and Harris, [1982] 2 S.C.R. 774; 45 N.R. 302, refd to. [para. 8].

Gardin v. J&B Kozma Enterprises Ltd., [1997] N.S.J. No. 120 (S.C.), refd to. [para. 18].

MacKay v. Dauphinee (2008), 266 N.S.R.(2d) 92; 851 A.P.R. 92; 2008 NSSC 190, refd to. [para. 21].

Atlantic Electronics Ltd. v. Dauphinee - see MacKay v. Dauphinee.

MacKay v. Dauphinee (2007), 254 N.S.R.(2d) 127; 810 A.P.R. 127; 2007 NSSM 11, refd to. [para. 21].

Swaine v. Hackney (2010), 312 N.S.R.(2d) 21; 987 A.P.R. 21; 2007 NSSM 83, refd to. [para. 21].

Bhasin v. Hrynew et al. (2014), 464 N.R. 254; 584 A.R. 6; 623 W.A.C. 6; 2014 SCC 71, refd to. [para. 43].

Counsel:

D. Brian Newton, Q.C., for the claimant, B2B Trust;

Richard Bureau, for the defendant, Ann Valerie Tivey.

This appeal was heard in Halifax, N.S., on June 30, 2014, before Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following decision on December 2, 2014.