MacDougall & Son Transport Ltd. and Duncan MacDougall Trucking Ltd. v. Continental Bank of Canada, (1984) 3 O.A.C. 229 (CA)

• Judge: Lacourcière, Cory and Tarnopolsky, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 23, 1984
• Jurisdiction: Ontario
• Citations: (1984), 3 O.A.C. 229 (CA)

MacDougall Trans. v. Continental Bk. (1984), 3 O.A.C. 229 (CA)

MLB headnote and full text

MacDougall & Son Transport Limited and Duncan MacDougall Trucking Limited v. Continental Bank of Canada

Indexed As: MacDougall & Son Transport Ltd. and Duncan MacDougall Trucking Ltd. v. Continental Bank of Canada

Ontario Court of Appeal

Lacourcière, Cory and Tarnopolsky, JJ.A.

April 9, 1984.

Summary:

A bank loaned money to the plaintiffs, secured by a chattel mortgage, a realty mortgage and a general security agreement. Each document contained provisions whereby the bank could recover its costs in connection with the enforcement of the security. Actions were brought both against and by the bank in connection with the security. The Ontario County Court, in a decision unreported in this series of reports, allowed the bank to recover its costs, on a solicitor and client basis, arising out of its own action as plaintiff, but refused to allow the bank to recover its costs when acting as a defendant or respondent. The bank appealed.

The Ontario Court of Appeal construed the meaning of the provisions in the securities, but upheld the trial judge's decision respecting costs in the circumstances.

Mortgages - Topic 1530

The mortgage - Covenants - Costs payable by mortgagor - A lender's security provided that it could recover against the borrower the costs incurred in connection with enforcement of the security - The Ontario Court of Appeal held that the lender could recover its costs directly or indirectly incurred in the enforcement of its security or in any litigation between it and the borrower respecting that security, whether the litigation was brought or defended by the lender - See paragraph 8.

Cases Noticed:

National Provincial Bank of England v. Games (1886), 31 Ch. D. 582, refd to. [para. 8].

Counsel:

W.H. Peter Madorin, Q.C., for the appellant;

Stephen Gehl, for the respondent.

This appeal was heard before Lacourcière, Cory and Tarnopolsky, JJ.A., of the Ontario Court of Appeal on March 23, 1984. The decision of the Court of Appeal was delivered orally by Lacourcière, J.A., and released on April 9, 1984.