Legal Blog

Summary Judgment Findings: Court of Appeal Examines the Scope of the Motion Judge’s Order and Analysis

Trez Capital Limited Partnership v. Bernstein 2018 Ont CA

A mortgagee commenced an action against a corporate investor of the mortgagor on grounds that the corporate investor had hidden its involvement with the project and therefore had escaped giving a guarantee. The defendant brought a motion for summary judgment based on a limitations defence. The motions judge made findings of credibility after a mini trial, including factual findings that the defendant submitted went far beyond what was necessary to determine the limitations issue. The Court of Appeal noted that the findings of fact were necessary to be made in support of the judge’s credibility findings. It had little sympathy for the defendant, stating that it would be contrary to the purpose of the summary judgment rule to give the defendant another opportunity at trial to persuade the trial judge that the evidence, which the motions judge rejected, should be accepted.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.