What is the case law on off-setting the damages against the amount owing to the respondent under a second mortgage in her favour?
Saskatchewan, Canada
The following excerpt is from McIvor v. Newell, 1999 CanLII 12321 (SK CA):
As for the contention he erred in off-setting the damages against the amount owing the respondent under the second mortgage in her favour, we are not convinced he misapplied the governing authority of Holt v. Telford, 1987 CanLII 18 (SCC), [1987] 2 S.C.R. 193. He was called upon to apply the equitable doctrine of set-off, and in our respectful opinion his assessment of the equities of the matter, having regard for the whole of the circumstances, cannot be said to have been made in error. Nor can he be said to have erred in principle. The appellant’s course of conduct obviously told against him, and rightly so in light of the principles of equity, and we can see no legitimate basis for interfering with the trial judge’s decision in relation to this issue.
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