Central Trust Co. v. 283318 Alberta Ltd. et al., (1991) 117 A.R. 1 (CA)

• Judge: Lieberman, Bracco and Stratton, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 03, 1991
• Citations: (1991), 117 A.R. 1 (CA)

Central Trust v. 283318 Alta. Ltd. (1991), 117 A.R. 1 (CA);

    2 W.A.C. 1

MLB headnote and full text

Central Trust Company (plaintiff/respondent) v. 283318 Alberta Ltd., 229968 Alberta Ltd., Eugene Huynen, Nelson Sopko, 10372 Canada Inc., Airflow Industries Limited, Autumwood Properties Ltd. and Canada Mortgage and Housing Corporation (defendants/not parties to appeal) and Allan Flom (defendant/appellant)

(Appeal No. 8703-0761-AC)

Indexed As: Central Trust Co. v. 283318 Alberta Ltd. et al.

Alberta Court of Appeal

Lieberman, Bracco and Stratton, JJ.A.

May 3, 1991.

Summary:

A mortgagee applied for summary judg­ment against the guarantors of the mortgage. A Master of the Alberta Court of Queen's Bench granted summary judgment. One of the guarantors appealed.

The Alberta Court of Queen's Bench, in a judgment not reported in this series of reports, dismissed the appeal. The guarantor appealed.

The Alberta Court of Appeal allowed the appeal and directed a trial of the issues, where there were "genuine issues to be tried".

Practice - Topic 5708

Judgments and orders - Summary judg­ment - Bar to plaintiff's application - Existence of issue to be tried - A mort­gagee obtained summary judgment against guarantors of the mortgage - The guaran­tor submitted that because the mortgagee entered into an amending agreement, vary­ing the terms of the mortgage and increas­ing the guarantor's scope of liability, with­out the guarantor's consent, the guarantor was discharged - There was an issue whether the wording of the guarantee permitted the agreement - The Alberta Court of Appeal held that summary judg­ment should not have been granted where there existed "genuine issues to be tried" - The court directed a trial of the issues.

Cases Noticed:

K.F.L. Holdings Ltd. v. William Stewart Properties Ltd. et al. (1983), 44 A.R. 200; 23 Alta. L.R.(2d) 748 (Q.B.), refd to. [para. 6].

Pacific Western Airlines Ltd. v. D.E.E.L. Enterprises Ltd. and Gauthier et al. (1977), 2 A.R. 166 (C.A.), refd to. [para. 8].

Holland-Canada Mortgage Co. Ltd. v. Hutchings et al., [1936] S.C.R. 165, refd to. [para. 13].

Counsel:

K.T. Mott, for the respondent;

L.C. Enns, for the appellant.

This appeal was heard on April 29, 1991, before Lieberman, Bracco and Stratton, JJ.A., of the Alberta Court of Appeal.

On May 3, 1991, the following memoran­dum of judgment was delivered by the Court.