Cristina Internicola

The Toronto-Dominion Bank (TD) brought an application for immediate possession of a condominium due to default on a charge.

The registered owner, Sandra Andrade, and an occupant, Sesanarine Singh, are involved in a separate fraud dispute over the property.

Singh claims beneficial ownership via a trust agreement and argues TD had actual notice of his interest, which would affect TD's priority.

The court found triable issues regarding Singh's beneficial interest and, crucially, whether TD had actual notice of it.

The application for immediate possession was not granted; instead, the court directed a trial of an issue solely on the question of TD's actual notice.

Interim orders were made for Singh to make ongoing mortgage and condo fee payments, and case conferences were directed for both the TD-Singh dispute and the Andrade-Singh dispute.

This ruling addresses four summary judgment motions concerning two defaulted mortgage loans.

The plaintiff lenders sought summary judgment against the defendant borrowers for repayment.

The defendants counterclaimed, alleging fraud and conspiracy by various parties, including the lenders and their lawyers, and sought relief under the Unconscionable Transactions Relief Act.

The court granted summary judgment to the lenders for the outstanding mortgage amounts but stayed enforcement pending the resolution of the counterclaim.

The counterclaim against the lenders (Flexpark, Westhaven, and related individuals) was allowed to proceed to trial due to genuine issues of fact regarding fraud and collusion.

However, the counterclaim against the lenders' lawyers (Sandra De Bartolo and Di Mauro Law Professional Corporation) was dismissed, as they owed no duty of care to the borrowers and no evidence of their involvement in fraud was presented.

The court found insufficient evidence to apply the Unconscionable Transactions Relief Act.

The defendant, Karen Patino-Ramirez, brought an urgent motion to set aside four default judgments and stay their enforcement, primarily focusing on one judgment concerning two Oakville properties.

The plaintiff, CMI High Yield Opportunity Fund, opposed the motion.

The court dismissed the motion to set aside the default judgment, finding no arguable defence on the merits regarding the mortgage default or the validity of a forbearance agreement.

However, the court acknowledged an arguable defence concerning certain administrative fees charged by the plaintiff and ordered a mechanism to resolve this issue, staying enforcement of the judgment and writ of possession on the matrimonial home until the fee dispute is resolved.

The Toronto Dominion Bank (TD Bank) brought a motion seeking a Certificate of Pending Litigation (CPL) against a property transferred by a debtor to his wife.

TD Bank had an outstanding credit card debt against the debtor, who subsequently transferred his property to his wife for no consideration, discharged an existing mortgage, and placed a new, larger mortgage on the property without making payments to TD Bank.

The court determined that a fraudulent conveyance action constitutes a sufficient interest in land for a CPL.

Applying a modified test for fraudulent conveyance claims, the court found a high probability of TD Bank recovering judgment, sufficient evidence of intent to defeat creditors, and that the balance of convenience favored issuing the CPL.

The motion for a CPL was granted.

The plaintiff brought a motion seeking leave to issue a writ of seizure and sale and a notice of garnishment to enforce a 2010 summary judgment against the defendant for a mortgage shortfall.

The original writ had expired in 2016.

The defendant opposed the motion, arguing prejudice due to the plaintiff's nine-year delay in enforcement.

The court granted leave to issue the writ but, exercising its discretion to prevent injustice from the plaintiff's inaction, capped the accrual of interest to three years post-judgment.

The appellant defaulted on a residential mortgage held by the respondent.

The respondent obtained summary judgment for possession, which was granted unopposed by the motion judge.

The motion judge held the order in abeyance for five weeks to allow the appellant an opportunity to redeem the mortgage.

The appellant appealed and sought to admit fresh evidence and amend his statement of defence to file a counterclaim.

The Court of Appeal dismissed the motion to admit fresh evidence, found no arguable defence or counterclaim, and dismissed the appeal with costs awarded to the respondent.

The appellant appealed an order dismissing her motion to set aside a summary judgment granted in favour of the respondent bank for a shortfall on a repossessed motorcycle.

The appellant claimed her signature on the guarantee was forged by her deceased husband.

The Court of Appeal upheld the dismissal, finding the appellant failed to meet her burden of demonstrating grounds to set aside the judgment, provided no expert evidence of forgery, offered no adequate explanation for the two-and-a-half-year delay, and would have caused prejudice to the respondent given the four-year delay in enforcement.

The appellant mortgagee appealed a motion judge's decision granting summary judgment for default under a mortgage but ordering that the judgment be held in abeyance until September 15, 2017, subject to the mortgagors making specified payments.

The appellant contended the motion judge lacked jurisdiction to impose such conditions.

The Court of Appeal found that the order amounted to a stay of execution, which is an interlocutory order from which there is no right of appeal to the Court of Appeal.

The court determined that jurisdiction properly lay with the Divisional Court.

The appellants failed to appear for the hearing of their appeal scheduled before the Court of Appeal for Ontario, despite the case being held down until 11:25 a.m.

The appellants had previously requested an adjournment which was refused.

The appeal was dismissed as abandoned, and costs were fixed in favour of the respondent.