3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)

Case Summary

The Defendant had acted as a lawyer on a number of high ratio mortgage transactions involving the Bank of Montreal (“BMO”) where Genworth was the mortgage default insurer. BMO and the Defendant had entered in to a Settlement Agreement which included a covenant not to sue by BMO. The Defendant sought Summary Dismissal primarily on the basis that the Settlement Agreement with BMO prevented any further claim by Genworth against him, and that there was no further recourse for either BMO or Genworth, as Genworth’s claim was a subrogated claim. Genworth sought to amend its Statement of Claim in order to remove any suggestion that the source of its claim against the Defendant was BMO.

Master Farrington noted that many of the facts appeared to be missing in this case, particularly with respect to Genworth. For example, the insurance policy was not included as evidence. Master Farrington cited prior leading authority which provided that it is presumed and required that each party put their “best foot forward” in a Summary Judgment Application. Because strategic and tactical choices made by the parties are respected by the Court, Master Farrington determined that the Court must proceed on the basis that Genworth had put its best foot forward. Without the required evidence from Genworth, Master Farrington granted the Defendant’s Summary Dismissal Application pursuant to Rule 7.3. Since Summary Dismissal was granted pursuant to Rule 7.3, the Court did not consider Genworth’s Rule 3.68 amendment Application.

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