



COURT OF APPEAL FOR ONTARIO

CITATION: Temple v. Moorey, 2020 ONCA 148

DATE: 20200221

DOCKET: C67221

Simmons, van Rensburg and Harvison
    Young JJ.A.

BETWEEN

Nicholas Temple and Susan Temple

Plaintiffs (Respondents)

and

Richard Moorey and Charleen
    Moorey

Defendants (Appellants)

Tim Gleason, for the appellants

Mike Maher, for the respondents

Heard: February 18, 2020

On appeal
    from the order of Justice Helen M. Pierce of the Superior Court of Justice, dated
    July 30, 2019 with reasons reported at 2019 ONSC 3723.

APPEAL BOOK ENDORSEMENT

[1]

The motion judge dismissed the appellants r.
    37.14(1)(b) motion to set aside the partial summary judgment because she found
    the appellants defences had no merit.

[2]

In our view, the motion judge erred in isolating
non est factum
and equitable set-off as the only possible defences
    when the pleadings and affidavits raised the legitimacy of the promissory notes
    as a possible defence. In all the circumstances the order below is set aside and
    the partial summary judgment is set aside on the following terms:

1.

The writ of seizure and sale shall remain in
    place pending further order of the Superior Court;

2.

The respondents shall produce any and all documents
    in their possession within 14 days of todays date;

3.

The appellants shall deliver any amended
    statement of defence and counterclaim within 21 days of todays date;

4.

The respondents may move for summary judgment
    thereafter on 21 days notice to the appellants; and

5.

The appellants shall deliver responding materials
    at least 4 days prior to the return date of any summary judgment motion.

Any non-compliance with these terms
    shall be dealt with on the return date of the summary judgment motion.

[3]

No order as to costs of the appeal. Costs of the
    proceeding below are reserved to the judge hearing the summary judgment motion.


