Christopher J. Staples

The Court of Appeal for Ontario dismissed Janina Joseph-Walker's motion to set aside the administrative dismissal of her appeal and to extend the time for perfection of her appeal in a mortgage enforcement matter.

The court found that Joseph-Walker failed to show a continuing intention to appeal, did not adequately explain her delay, and that her grounds of appeal had no merit.

The court also noted that the equities favoured AST Trust Company (Canada), as Joseph-Walker had been in default for over three years and had registered subsequent mortgages without notice.

Costs of $3,000 were awarded to AST.

This decision addresses a motion by Mr. Diab for leave to issue a writ of possession against Ms. Poka to enforce prior court orders requiring her to vacate the matrimonial home.

The court reviews the history of orders regarding the sale and possession of the home, the parties' compliance, and the need for further orders to ensure the closing of the sale.

The court finds Ms. Poka is not currently in breach of the sale and vacate orders but makes further orders to ensure compliance and the successful closing of the sale, including surrender of keys, removal of belongings, and financial disclosure.

The defendants, Lee Darvin Weinkauf and Merlie Otadora Weinkauf, brought a motion to set aside their noting in default and a default judgment obtained by RFA Bank of Canada in a mortgage enforcement action.

The court reviewed the chronology of the mortgage default, the parties' communications, and the applicable legal test for setting aside default judgments.

The court found that the defendants did not provide a plausible excuse for their failure to defend, nor did they establish an arguable defence on the merits.

The motion was dismissed, and costs were awarded to the plaintiff.

The plaintiff, Community Trust Company, moved for summary judgment on a mortgage.

The court found no genuine issue requiring a trial, granted judgment for the plaintiff, and ordered the defendants to deliver possession of the property.

The court also awarded costs to the plaintiff.

The court granted summary judgment in favour of the plaintiffs, Nathramdas and Premwattie Chateramdas, declaring that the transfer of their property and a subsequent mortgage were fraudulent instruments under the Land Titles Act.

The court found that Melissa Sanasie fraudulently transferred title to herself and registered a mortgage in favour of RiverRock Mortgage Investment Corporation, using the proceeds for her own benefit.

The court ordered rectification of title, deletion of the mortgage, and awarded punitive damages against Melissa for her egregious conduct, including the production of falsified documents and impersonation of counsel.

The claim against RiverRock was not dismissed, and the claim against Ziba Heydarian will proceed separately.

The plaintiff, RiverRock Mortgage Investment Corporation, brought a motion for summary judgment to enforce a defaulted mortgage against the defendants, Amadeus Blazys and Luisa Blazys, seeking judgment for the outstanding amount, possession of the property, and leave to issue a Writ of Possession.

The defendants argued that the action should be dismissed due to RiverRock's breaches of the Mortgages Act and the Interest Act, challenging the timing of the Statement of Claim relative to the Notice of Sale, the validity of certain fees (including a renewal fee and a three-month interest penalty upon default), and the interest rate.

The court granted summary judgment to RiverRock for the principal, prejudgment interest, renewal fee, property tax reimbursement, and some additional fees, but disallowed the three-month interest penalty and certain other fees (NSF, default proceedings fee) as offending the Interest Act.

The court also granted leave nunc pro tunc for the Statement of Claim to be issued before the Notice of Sale period expired, noting that this procedural irregularity would be considered in costs.

The plaintiff sought summary judgment for the defendants' failure to pay the outstanding principal, interest, and fees for a mortgage loan.

The defendants, self-represented, failed to file defence materials or meet deadlines, and their request for an adjournment was denied.

The court granted summary judgment, finding the defendants breached the mortgage terms, entitling the plaintiff to the outstanding debt, interest, fees, and possession of the property.

Costs were awarded to the plaintiff.

The Applicant, a third mortgagee, sought a declaration of interest in land and the allocation of surplus funds from a power of sale, disputing the priority and validity of the second mortgage held by the Respondent Turton (a solicitor's mortgage).

The application was dismissed without prejudice due to the Applicant's failure to provide notice to the Property owner, whose interests were directly at stake, and the lack of sufficient evidentiary foundation from both the Applicant and Respondent Turton regarding the precise value of their respective mortgages at the relevant valuation date.

The plaintiffs sought the appointment of a receiver over the DMCC Group of companies to oversee the winding-up and termination of a Trust and the distribution of its assets.

The motion was brought after the Trust Administrator issued a wind-up notice.

The court applied the "just and convenient" test under s. 101 of the Courts of Justice Act, finding that the individual defendants' conflicts of interest and lack of meaningful progress in the wind-up process warranted an independent receiver.

The receivership was granted but limited to specific key entities (the Administrator, General Partner, and DMCC Americas (Canada)), with the possibility of expansion.

The court declined to appoint a receiver under the oppression remedy at this stage.

The plaintiff mortgagee brought a motion for summary judgment against the defendant mortgagors following a default on a mortgage.

The defendants admitted the default but disputed the plaintiff's calculation of the amount owing, pointing to a double-counted fee.

The court granted summary judgment on the issue of default, finding no genuine issue for trial, but referred the determination of the exact amount owing to a Master pursuant to Rule 20.04(3) of the Rules of Civil Procedure.

The appellants, Peter and Anka Georgakopoulos, appealed a summary judgment from the Superior Court of Justice in favour of the Bank of Montreal.

The judgment ordered them to repay over $342,000 in unauthorized line of credit advances and Peter to pay a $28,000 credit card debt, and declared an equitable mortgage over Peter's Toronto property.

The appellants argued the motion judge lacked jurisdiction, the evidence was insufficient for summary judgment, the equitable charge was improperly declared, and their counterclaim was wrongly dismissed.

The Court of Appeal dismissed the appeal, affirming the Superior Court's jurisdiction and finding no palpable and overriding error in the motion judge's conclusions regarding the evidence, the equitable mortgage, or the dismissal of the counterclaim.

The plaintiff mortgagee obtained summary judgment and a writ of possession after the defendant mortgagor defaulted on her mortgage.

The self-represented defendant subsequently obtained an ex parte order staying the execution of the writ of possession.

The plaintiff brought a motion to set aside the stay.

The court granted the plaintiff's motion, finding that the defendant failed to meet the test under Rule 37.14 to set aside the summary judgment, as she had no defence on the merits to the mortgage default and had not moved forthwith.

The plaintiff sought summary judgment against the defendant due to default under a mortgage.

The defendant opposed, seeking to bring the mortgage back into good standing and alleging bad faith by the plaintiff.

The court found no genuine issue requiring a trial but declined to grant summary judgment immediately.

Instead, it granted the defendant conditional relief under Section 23(1) of the Mortgages Act, allowing her to cure the default by paying $100 into court and all outstanding money by a specified date, failing which the plaintiff could move for judgment.

Costs were reserved.

The plaintiff, Johnvale Contracting Ltd., was awarded costs following a trial where it obtained judgment for $21,903.58 on a lien claim.

The court found the defendant, Zonte Investments Inc., did not act reasonably in response to offers to settle, particularly given the trial evidence.

Zonte's offers were consistently below the judgment amount, while Johnvale's lowest offer was only slightly above Zonte's last offer.

The court also considered Zonte's unsubstantiated allegations of fraud against Johnvale, which attract substantial indemnity costs.

Despite the costs exceeding the judgment amount, the court declined to reduce the award on proportionality grounds, emphasizing that a plaintiff should not be undercompensated for legitimately incurred costs.

The court adjusted the hourly rate for trial costs to be more reasonable.

Johnvale Contractors Ltd. brought an action to perfect a construction lien against Zonte Investments Inc. for renovation work on a condominium unit.

Zonte disputed the final invoice amount, claiming various discounts and back-charges.

The court conducted a summary trial, assessing the credibility of the principals of both parties and analyzing each disputed item.

The court largely sided with Johnvale, denying most of Zonte's claimed discounts, but allowed some credits and a back-charge for electrical code violations.

Johnvale's claim was reduced from $24,327.43 to $21,903.58.

The appellant appealed a trial judge's finding that the parties had reached an oral agreement whereby the respondents had an option to purchase unit 116 from the appellant.

The appellant disputed both the existence of the agreement and whether there was sufficient part performance to take the agreement out of the Statute of Frauds.

The Court of Appeal upheld the trial judge's findings, finding no legal error in the determination that consensus had been reached on material terms, that part performance was established through the provision of free ski lessons, and that the trial judge's credibility findings were entitled to deference.

The defendant, Mary Fatima DeMelo, brought a motion seeking disbursement of $488,348.75 from the proceeds of her former matrimonial home's sale and a seven-day suspension of a writ of possession held by CIBC Mortgages Inc. She argued that CIBC acted in bad faith by holding proceeds from one property (Binns) while also having security on another (Greenvalley), and by not paying funds into court as per a freezing order.

CIBC contended it was entitled to execute its writ against any of the defendant's assets and was not obligated to withdraw its writ or take a chance on future repayment from the Greenvalley property sale, which had deficiencies.

The court dismissed the defendant's motion, finding that CIBC was entitled to file and execute its writ and that holding the sale proceeds did not constitute bad faith, as CIBC was a secured creditor not required to take a chance on future repayment.

The Plaintiffs, Jesse Fulton and Nicole White, sought costs following a successful trial against KOA Aloha Inc. The trial judgment awarded the Plaintiffs $71,146.69 in damages, which fell within the monetary jurisdiction of Rule 76 (simplified procedure).

The Plaintiffs requested substantial or partial indemnity costs, relying on Rule 49.10(1) due to their unaccepted settlement offers that were more favourable than the judgment.

The Defendant argued that Rule 76.13 should deny costs because the action did not proceed under simplified procedure and the Plaintiffs' recovery was within its limits.

The court found that the Plaintiffs made reasonable settlement efforts and beat all offers.

While acknowledging the Rule 76 issue and the Plaintiffs' decision to pursue specific performance and damages over $100,000 under ordinary procedure, the court deemed it reasonable for them to have done so.

The court awarded the Plaintiffs $45,000.00 in all-inclusive costs, representing a reduced partial indemnity to account for the Rule 76 issue.

The plaintiff bank brought a motion for summary judgment against the defendant for the balance owing on a mortgage, alleging he was a guarantor.

The defendant brought a cross-motion for summary judgment dismissing the action against him, arguing he never signed a guarantee.

The court found that while other documents indicated an intention for the defendant to provide a guarantee, he never actually signed the Acknowledgement and Direction or any document containing the guarantee terms.

The court held that the Statute of Frauds requires a guarantee to be in writing and signed, and the doctrine of part performance does not apply to guarantees.

The plaintiff's motion was dismissed, and the defendant's cross-motion was granted, dismissing the action against him.

The plaintiffs and the principals of the defendant corporation were friends who entered into an oral agreement regarding a condominium unit to be used as a team house for a snowboarding program.

The plaintiffs alleged they had an option to purchase the unit, while the defendants claimed the plaintiffs failed to make required monthly payments and terminated the agreement.

The court found that an oral agreement existed, the doctrine of part performance applied to overcome the Statute of Frauds, and the defendants wrongfully terminated the agreement.

The court awarded damages to the plaintiffs based on the market value of the property less the amounts owed to the defendants, declining to order specific performance.