Jackson v. Oak Hills Realty Inc., Goode and Goode, (1983) 1 O.A.C. 100 (CA)

• Judge: Morden, Thorson and Cory, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 09, 1983
• Jurisdiction: Ontario
• Citations: (1983), 1 O.A.C. 100 (CA)

Jackson v. Oak Hills Realty Inc. (1983), 1 O.A.C. 100 (CA)

MLB headnote and full text

Jackson v. Oak Hills Realty Inc., Goode and Goode

Indexed As: Jackson v. Oak Hills Realty Inc., Goode and Goode

Ontario Court of Appeal

Morden, Thorson and Cory, JJ.A.

December 21, 1983.

Summary:

The first mortgagee obtained a final order of foreclosure of the mortgaged property, after a hearing at which the second mortgagees were unrepresented. Approximately two years later, the second mortgagees applied to set aside the foreclosure order.

The Ontario County Court, in a decision unreported in this series of reports, dismissed the application, but ordered an accounting by the first mortgagee to the second mortgagees. The first mortgagee appealed.

The Ontario Court of Appeal allowed the appeal and set aside the order for the accounting.

Restitution - Topic 62

Unjust enrichment - What constitutes - A first mortgagee obtained a final order of foreclosure, after a hearing at which the respondent second mortgagees were unrepresented - The respondents' solicitors were mailed a notice of the hearing pursuant to Rule 201, but the notice was mislaid, resulting in their absence - Nearly two years later the respondents' solicitors questioned the status of the action, then applied to set aside the foreclosure order - The trial judge refused, but ordered an accounting by the first mortgagee - The Ontario Court of Appeal set aside the accounting order, because the first mortgagee was not unjustly enriched by the foreclosure - See paragraphs 5 to 11.

Cases Noticed:

Dovercourt Land Building and Savings Co. v. Dunvegan Heights Land Co. (1920), 57 O.L.R. 105, refd to. [para. 10].

Authors and Works Noticed:

Goff and Jones, The Law of Restitution (2nd Ed. 1978), pp. 13-14 [para. 9].

Counsel:

Lindsay Bell, for the appellant;

Kerry J. Lee, for the respondents.

This appeal was heard before Morden, Thorson and Cory, JJ.A., of the Ontario Court of Appeal, on December 9, 1983. The decision of the Court of Appeal was delivered orally by Morden, J.A., and released on December 21, 1983.