Key Points:

• Background:

  • RVDC secured a $1.25 million loan from Liberty Mortgage Services Ltd. in 2011, guaranteed by Owen Shaw. After Owen's bankruptcy, Natasha Shaw became director and provided a personal guarantee in 2014.
  • The mortgage has not been repaid, and the defendants were noted in default on February 14, 2019.

• Applications:

  • Liberty sought summary judgment to enforce Natasha’s personal guarantee.
  • Defendants sought to set aside the default noting, claiming defenses under various grounds.

• Court Findings:

  • Summary judgment granted to Liberty, allowing enforcement of the guarantee.
  • Default noting against the defendants upheld; no sufficient defense or reasonable excuse for delay in applying to set aside the default.

Legal Analysis:

• Summary Judgment:
  • No genuine issue requiring trial found, adhering to principles from Hryniak v Mauldin.
• Setting Aside Default:
  • Defendants failed to present an arguable defense.
  • Delay in applying to set aside the default was unjustified.

Defenses Evaluated:

• Guarantees Acknowledgement Act Compliance:
  • The guarantee met statutory requirements of the time.
• Non-Est Factum:
  • Defense of misunderstanding the guarantee was rejected based on Natasha’s financial sophistication and evidence.
• Joint Venture/Estoppel:
  • Insufficient evidence of a joint venture preventing enforcement. Mr. Evangelista had no ostensible authority post-2014.

Disposition:

• Enforcement of the guarantee against Natasha Shaw for $2,588,577.26.
• Costs awarded to Liberty.