Can a common law mortgage be construed as a lease?

Saskatchewan, Canada


The following excerpt is from Cook v. Yellow Quill Holdings Inc., 2004 SKQB 472 (CanLII):

I am of the view that the agreement between the parties on its face is clearly a lease. It contains terms traditionally associated with a lease and none of the various terms of this lease agreement are in law capable on their face of being construed as a common law mortgage. The question then becomes whether the plaintiff’s assertions in the statement of claim to the effect of a common law mortgage being contemplated and created through the medium of the agreement combined with the parties’ actions can transform the lease agreement into a broader security agreement bearing the attributes of a common law mortgage. If the answer to this question is in the affirmative, it would not be appropriate to strike the impugned paragraphs as disclosing no reasonable cause of action. Applying the rationale in Sagon v. Royal Bank, supra, the claim would survive scrutiny as it would not be a “plain and obvious case”, or, a “case beyond doubt”.

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