Filion et al. v. 689543 Ontario Ltd. et al., (1994) 68 O.A.C. 389 (DC)

• Judge: White, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: November 25, 1993
• Jurisdiction: Ontario
• Citations: (1994), 68 O.A.C. 389 (DC)

Filion v. 689543 Ont. Ltd. (1994), 68 O.A.C. 389 (DC)

MLB headnote and full text

Alma Edith Filion, Terrence Norman Filion and 547553 Ontario Inc. (plaintiffs/appellants) v. 689543 Ontario Limited c.o.b. as IMC Holdings (defendant/respondent)

(No. 521/93)

Indexed As: Filion et al. v. 689543 Ontario Ltd. et al.

Ontario Court of Justice

Divisional Court

White, J.

February 9, 1994.

Summary:

The plaintiffs applied to add defendants and to amend their statement of claim. The defendant sought summary judgment on its counterclaim. A Master dismissed the plain­tiffs' application and granted the defendant summary judgment. The plaintiffs appealed, asking that the summary judgment be set aside or, in the alternative, that judgment be stayed until the plaintiffs' claims, including those in the amended statement of claim, be resolved at trial, and that the amendments to the statement of claim be allowed.

The Ontario Court of Justice (Divisional Court), per White, J., allowed the appeal and granted the plaintiffs' requests.

Contracts - Topic 9911

Promissory estoppel - Where applicable - General - The Ontario Divisional Court referred to the three factors necessary to estop a party from acting on its legal right - See paragraph 27.

Mortgages - Topic 7851

Statutory and contractual rights - Sale under power of sale - Duties of mortgagee - Respecting sales price - The Ontario Divisional Court referred to the mortgag­ee's duty to take reasonable precautions to obtain the true market value of the mort­gaged property - If the length of time the property was exposed for sale is only a few days, the mortgagee may be negligent in failing to ensure that the property came to the attention of a wide segment of the market - A reasonable number of offers can defeat this presumption - A mortgagee is not in default of his duty unless "plainly on the wrong side of the line" - The court must look at the particular facts to ascer­tain whether a mortgagee's sale was im­provident - See paragraph 33.

Practice - Topic 2106

Pleadings - Amendment of pleadings - Power of court to amend - The Ontario Divisional Court referred to rule 26.01 respecting amendment of pleadings, noting that it was mandatory - The court stated that the only discretion left to the court was to determine whether the amended pleadings would give rise to prejudice that could not be compensated for by either an adjournment of the trial date or a costs award at the end of the trial - The court stated that the proposed amendment must disclose a reasonable cause of action - See paragraphs 38 to 40.

Practice - Topic 5703

Judgments and orders - Summary judg­ments - Conditions precedent - The Ontario Divisional Court held that a court must refuse a motion for summary judg­ment unless it is clear that a trial is unnec­essary - The assumption will be that a trial on the issues is necessary unless the party moving for summary judgment sat­isfies the court that there is no genuine issue for trial - If there is an issue of credibility it will be virtually impossible for the moving party to meet the test of satisfying the court that the requirements of Civil Procedure Rule 20 have been met - See paragraphs 21 to 22.

Cases Noticed:

Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R.(2d) 225 (Gen. Div.), refd to. [para. 20].

Ungerman (Irving) Ltd. et al. v. Galanis and Haut (1991), 50 O.A.C. 176; 4 O.R.(3d) 545 (C.A.), refd to. [para. 21].

Tudale Explorations Ltd. v. Bruce (1978), 20 O.R.(2d) 593 (Div. Ct.), refd to. [para. 27].

Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50; 125 N.R. 294; 47 O.A.C. 333, refd to. [para. 28].

Cuckmere Brick Co. v. Mutual Finance Ltd., [1971] Ch. 949; [1971] 2 All. E.R. 633 (C.A.), refd to. [para. 33].

Bank of Nova Scotia v. Barnard (1984), 46 O.R.(2d) 409 (H.C.), refd to. [para. 33].

Continental Trust Co. v. Yorkario Invest­ments Ltd. (1989), 67 O.R.(2d) 737 (H.C.), refd to. [para. 33].

National Gypsum Co. v. Lanzino (1985), 50 C.P.C. 88 (Ont. H.C.), refd to. [para. 39].

Milosevic (Litigation Guardian of) v. Etheridge (1991), 3 C.P.C.(3d) 69 (Ont. Gen. Div.), refd to. [para. 39].

Jennings v. Cumming Signs of Canada Ltd. (1983), 35 C.P.C. 83 (Ont. S.C. Master), refd to. [para. 40].

Smith v. Simmons (1985), 49 C.P.C. 28 (Ont. S.C. Master), refd to. [para. 40].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 5.02(4) [para. 37]; rule 20 [paras. 11, 22, 40]; rule 20.04 [paras. 20-21]; rule 20.04(2) [para. 19]; rule 26.01 [para. 38].

Authors and Works Noticed:

Snell, Principles of Equity (27th Ed. 1973), p. 563 [para. 27].

Counsel:

Peter J. Jervis, for the plaintiffs/appellants;

Ross Macdonald, for the defen­dant/respondent.

This appeal was heard November 25, 1993, before White, J., of the Ontario Divisional Court, who released the following decision on February 9, 1994.