What is the test for a motion to invalidate a mortgage under s. 347 of the Criminal Code?
British Columbia, Canada
The following excerpt is from Noramco Capital Corp. v. 485039 B.C. Ltd., 1997 CanLII 3795 (BC SC):
The mortgagor, the guarantor and the law firm resist the application alleging that when certain fees paid to third parties involved in negotiations leading up to the granting of the mortgage and certain payments allegedly required by the petitioner to be made to a judgment creditor of the guarantor are taken into account, the effective rate of interest contravenes s. 347 of the Criminal Code and the transaction is therefore void. They ask that the petition be converted to an action with appropriate directions as to its conduct and referral to the trial list. Counsel are agreed that the test in that regard is not the Rule 18A summary trial test but the Rule 18 (previously Order 14) Hughes v. Sharpe, "triable issue" test. THE CIRCUMSTANCES OF THE TRANSACTION.
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