Balpreet S. Lailna

The Court of Appeal for Ontario granted a conditional stay of a summary judgment and writ of possession in a mortgage enforcement action.

The moving parties, unrepresented at trial, sought a stay pending appeal after summary judgment was granted against them and a writ of possession issued.

The court found that while the original grounds of appeal did not raise a serious question to be tried, a new ground—whether the summary judgment process was appropriate given evidence of conflict of interest and lack of independent legal advice—did raise a serious question.

The court held that denying a stay could cause irreparable harm and that the balance of convenience favoured the moving parties.

The stay was granted until July 25, 2025, with a further extension conditional on amending the grounds of appeal.

The appellant, as second mortgagee, sought orders to discharge the respondent's first mortgages on two properties by paying money into court, pending resolution of disputes regarding the calculation of balances owing.

The application judge dismissed both applications and awarded costs on a substantial indemnity basis.

The Court of Appeal dismissed the appeals on the substantive issues but remitted the matter to the Superior Court for amended applications to determine the disputed costs and charges.

The court clarified that section 12(3) of the Mortgages Act applies in limited circumstances and that mortgagors seeking to contest discharge statement items must bring applications under Rule 14.05(3)(e) with full particulars and evidence.

The costs award was quashed and referred to the judge hearing the amended applications.

The defendants moved for summary judgment to dismiss the plaintiff's claim for unjust enrichment and constructive trust related to unpaid construction work.

The court found that a contract existed between the parties and that the Construction Lien Act provided a comprehensive statutory scheme, both constituting juristic reasons for the alleged enrichment.

The court rejected the plaintiff's argument that a "quasi-domestic relationship" between the parties negated these juristic reasons.

Consequently, the plaintiff's action was dismissed.

The applicant mortgagee sought an order to set aside a tenancy agreement entered into by the mortgagor after defaulting on a mortgage.

The mortgagee argued the agreement was made to discourage possession or adversely affect property value.

The respondent tenants contended that the mortgagee, by accepting a rent payment, became a landlord under the Residential Tenancies Act, thus precluding the Superior Court's jurisdiction.

The court found that the mortgagee's actions were insufficient to establish "mortgagee in possession" status and that it retained jurisdiction under the Mortgages Act to set aside the tenancy agreement.

A writ of possession was issued, and the tenants were ordered to vacate, with the mortgagor responsible for reimbursement.