Caisse populaire Beauséjour ltée v. Wry et al., (2012) 396 N.B.R.(2d) 136 (TD)

• Judge: Rideout, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 02, 2012
• Jurisdiction: New Brunswick
• Citations: (2012), 396 N.B.R.(2d) 136 (TD);2012 NBQB 335

Caisse Pop. v. Wry (2012), 396 N.B.R.(2d) 136 (TD);

    396 R.N.-B.(2e) 136; 1024 A.P.R. 136

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.B.R.(2d) TBEd. NO.017

Renvoi temp.: [2012] N.B.R.(2d) TBEd. NO.017

La Caisse Populaire Beauséjour ltée (plaintiff) v. John David Wry, Michael Haywood and Carolyn Joyce Holmes, Executrix of the Estate of George Elliot Holmes (defendants) and Ammon Developments Inc. (third party) and Vail's Fabric Services Ltd., KMR Holdings Inc., and New System Laundry & Cleaners Ltd. (fourth parties)

(M/C/0005/10; 2012 NBQB 335; 2012 NBBR 335)

Indexed As: Caisse populaire Beauséjour ltée v. Wry et al.

Répertorié: Caisse populaire Beauséjour ltée v. Wry et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

October 16, 2012.

Summary:

Résumé:

This action involved mortgage financing and additional security documentation including guarantees. The plaintiff applied for summary judgment. The defendants also applied for summary judgment.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 391 N.B.R.(2d) 231; 1013 A.P.R. 231, dismissed the plaintiff's motion and allowed the defendants' motion (the July 2012 decision). The plaintiff moved (1) to amend its statement of claim; (2) to vary the July 2012 decision to permit consideration of the new facts and their effects on the summary judgment motion; and (3) for summary judgment. The defendants moved to amend their statement of defence.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the motions to amend the pleadings. The motion to vary the July 2012 decision was granted to permit the consideration of the new facts and their effects on the summary judgment motion. The motion for summary judgment was dismissed on the basis that, at this moment, the court did not believe the plaintiff's action was unanswerable.

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - What constitutes - [See Practice - Topic 2121 ].

Practice - Topic 2121

Pleadings - Amendment of pleadings - Statement of claim - Adding particulars or subsequent facts - This action involved mortgage financing and additional security documentation including guarantees - The defendants were granted summary judgment on the basis that the demand letters pursuant to the guarantees were not proper demand letters (the July 2012 decision) - As a result, the plaintiff issued letters of demand and moved to amend the statement of claim to reflect the letters of demand - The defendants Wry and Haywood also sought to amend their statements of defence based on newly discovered information - The New Brunswick Court of Queen's Bench, Trial Division, allowed the motions to amend the pleadings - The defendants' amendments were very extensive, however, the proceedings were not that far along so as to prejudice the plaintiff - The amendments to both pleadings were appropriate - See paragraphs 14 to 26.

Practice - Topic 2126.1

Pleadings - Amendment of pleadings - Statement of defence - Adding particulars or subsequent facts - [See Practice - Topic 2121 ].

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - This action involved mortgage financing and additional security documentation including guarantees - The defendants were granted summary judgment on the basis that the demand letters pursuant to the guarantees were not proper demand letters (the July 2012 decision) - As a result, the plaintiff issued letters of demand - The plaintiff moved to vary the July 2012 decision to permit the consideration of the new facts and their effects on a summary judgment motion and for summary judgment - The New Brunswick Court of Queen's Bench, Trial Division, allowed the motion to vary the July 2012 decision to permit the consideration of the new facts and their effects on the summary judgment motion - In essence, the plaintiff was requesting that the court examine all the evidence presently before the court on the summary judgment motion with the added information that proper demands under the guarantee had now been made, as per the amendment to their statement of claim - In the interest of justice, the court varied the July 2012 decision to permit a consideration of the original motion for summary judgment in light of the amendments of both the plaintiff and the defendants, Wry and Haywood, along with the additional affidavit evidence filed by the parties - See paragraphs 32 to 37 - The court dismissed the motion for summary judgment - The court did not believe the plaintiff's action was unanswerable - See paragraphs 38 to 44.

Procédure - Cote 2105

Plaidoiries - Modification des plaidoiries - Préjudice réel ou présumé - Éléments constitutifs - [Voir Practice - Topic 2105 ].

Procédure - Cote 2121

Plaidoiries - Modification des plaidoiries - Exposé de la demande - Addition de détails ou de faits subséquents - [Voir Practice - Topic 2121 ].

Procédure - Cote 2126.1

Plaidoiries - Modification des plaidoiries - Exposé de la défense - Addition de détails ou de faits subséquents - [Voir Practice - Topic 2126.1 ].

Procédure - Cote 5710

Jugements et ordonnances - Jugements sommaires - Preuve - [Voir Practice - Topic 5710 ].

Cases Noticed:

Lévesque v. New Brunswick et al. (2011), 372 N.B.R.(2d) 202; 961 A.P.R. 202; 2011 NBCA 48, refd to. [para. 16].

Modern Construction (1983) Ltd. v. Enbridge Gas New Brunswick Inc. et al. (2003), 264 N.B.R.(2d) 145; 691 A.P.R. 145; 2003 NBCA 78, refd to. [para. 16].

Béchard v. Ouellet (1999), 210 N.B.R.(2d) 246; 536 A.P.R. 246 (C.A.), refd to. [para. 16].

Calgary Mack Sales Ltd. v. Shah et al. (2005), 380 A.R. 195; 363 W.A.C. 195; 2005 ABCA 304, refd to. [para. 19].

K.F.L. Holdings v. William Stewart Properties et al. (1982), 44 A.R. 200; 23 Alta. L.R.(2d) 248 (Q.B. Master), refd to. [para. 21].

Acadia Marble, Tile & Terrazzo Ltd. v. Oromocto Property Developments Ltd. (1998), 205 N.B.R.(2d) 358; 523 A.P.R. 358 (C.A.), refd to. [para. 21].

Eshelby v. Federated European Bank Ltd., [1932] 1 K.B. 254, refd to. [para. 21].

Allarcom Ltd. v. Canwest Broadcasting Corp., [1988] B.C.J. No. 817 (C.A.), refd to. [para. 28].

Fruehauf Trailer Co. v. McCrea, [1955] 3 D.L.R. 543 (N.B.C.A.), refd to. [para. 33].

Ward v. Hache (1984), 54 N.B.R.(2d) 335; 140 A.P.R. 335 (C.A.), refd to. [para. 33].

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 34].

Counsel:

Avocats:

Richard J. Scott, Q.C., on behalf of the plaintiff;

Richard E. DeBow, Q.C., on behalf of the defendants;

Bruce Phillips, on behalf of the third parties;

Melanie Lynn Cassidy, on behalf of the fourth parties.

These motions were heard on October 2, 2012, by Rideout, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following decision on October 16, 2012.