B. Whealen

This supplemental decision clarifies a typographical error in the accrued interest calculation from a prior ruling dated September 6, 2016.

It sets the final amount payable by the defendants to the plaintiff at $131,095.48.

The court declined the plaintiff's request for an additional tax amount and the defendants' request for an interest credit.

It also declined the plaintiff's request for an order regarding future repairs.

The decision outlines the final payment schedule, mortgage discharge obligations, and dismisses the action without further costs assessment.

The defendants brought a motion seeking several orders, including declaring the statement of claim a nullity due to alleged non-compliance with the Mortgages Act regarding suspension of enforcement rights and service of notice of sale, striking the statement of claim for insufficient material facts, discharging the mortgage upon payment of a specific amount into court, and ceasing rent collection.

The court dismissed all of the defendants' requests, finding that the plaintiff had complied with the Mortgages Act, the statement of claim was sufficiently pleaded, and the proposed discharge amount was unreasonable.

The court instead set out a higher, conditional amount for mortgage discharge, including costs and outstanding fees, which the defendants could pay to obtain a discharge and avoid further litigation.

The court also affirmed the plaintiff's right to collect rent based on the mortgage's assignment of rents clause.

The assignee of a mortgagee brought a motion for summary judgment seeking dismissal of a contractor’s lien action and return of funds paid into court as security for the lien.

The moving party argued the lien was invalid because it was registered beyond the 45‑day period following publication of the certificate of substantial performance and because certain change orders and delay claims were not approved by the architect as required by the contract.

The contractor maintained that additional work continued after substantial performance through change orders and that delay costs and a municipal fine were approved by the lender acting as payment certifier.

The court held that genuine issues for trial existed regarding whether change orders and delay costs were properly approved, whether the lender could act as substitute certifier under industry practice or implied contractual terms, and whether the lien was timely preserved.

Summary judgment was therefore inappropriate.

The plaintiff and other lien claimants sought a determination of the basic holdback amount under the Construction Lien Act following the sale of a partially completed retirement home project by the defendant mortgagee.

The mortgagee argued the holdback was reduced by payments made to sub-trades during construction.

The court found that the owner violated section 25 of the Act by releasing holdback funds before certificates of completion were issued, and that such a breach could not be cured retroactively.

The court fixed the basic holdback at the full 10% of the value of services and materials provided, plus applicable GST.

A mortgagee moved for summary judgment for possession of mortgaged property and dismissal of the mortgagors’ counterclaim alleging breach of the mortgage contract.

The mortgagors had fallen into default after a missed payment but attempted to cure the arrears through uncertified cheques, which the mortgagee refused to accept while insisting on certified cheques.

The court held that the mortgage provision requiring certified cheques applied only where a cheque had been returned NSF, which had not occurred beyond the initial missed payment.

With the mortgage account now brought into good standing, the court found no genuine issue requiring a trial regarding possession.

The action for possession and the counterclaim were both dismissed, and the mortgagors were ordered to pay partial indemnity costs.