Liberty Mortgage Services Ltd. (“Liberty”) was a lender to the Defendants. Individual Defendants had personally guaranteed the mortgages. The Defendants defaulted on their mortgages with Liberty and Liberty commenced an Action. The Defendants failed to defend the Action, and were Noted in Default. Liberty subsequently sought Summary Judgment, pursuant to Rule 7.3, allowing it to enforce the Defendants’ guarantee. The Defendants applied to have the Noting in Default set aside, pursuant to Rule 9.15.

The Court summarized the law on Summary Judgment as follows:

Summary judgment is to be granted where there is ‘no genuine issue requiring a trial’, which will be the case when the process (1) allows the Judge to make the necessary findings of fact, (2) allows the Judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

The Court considered the difference between an “arguable defence” for the purpose of an Application to set aside a Noting in Default, and “no defence” for the purpose of granting Summary Judgment. Justice Aloneissi acknowledged that the applicable definitions could lead to a finding that the Defendant has an “arguable defence” while simultaneously having “no defence.” This oddity creates issues only in the exact scenario present in this case, where the two Applications are decided simultaneously.

On the issue of setting aside the Noting in Default, the Defendants argued they had an arguable defence that the mortgages were unenforceable. The Court considered the position but found that it did not amount to an arguable defence. The Court also found that the Application to set aside the Noting in Default was not filed promptly. As such, the Court denied the Defendants’ request to set aside the Noting in Default. The Court also found that the Defendants’ proposed defences did not raise a genuine issue requiring Trial. As such, the Court granted Liberty’s Application for Summary Judgment.