James Butson

The applicant mortgagee sought possession of a residential property after the respondent mortgagor defaulted on his loans.

Unbeknownst to the mortgagee, the mortgagor had fraudulently leased the property to innocent tenants who paid $30,000 in advance rent.

The court balanced the equities between the innocent mortgagee and the innocent tenants under section 52 of the Mortgages Act.

Finding the tenants to be bona fide purchasers for value without notice, the court ordered that the tenants could remain in possession until the end of their lease, after which the mortgagee would obtain full possession.

The plaintiff brought a motion for summary judgment in a mortgage enforcement action against the defendant company and its alleged director.

The company opposed the motion, arguing the mortgage was a 'fraudulent instrument' under the Land Titles Act because the director fraudulently held herself out as an officer of the company to obtain the mortgage.

The court granted summary judgment, finding that even if the allegations of fraud were true, the director was not a 'fictitious person' and did not hold herself out to be the registered owner of the property, meaning the mortgage did not meet the statutory definition of a fraudulent instrument.

The respondents brought a motion in writing on consent to disburse surplus proceeds from a mortgage sale.

The applicant bank had failed to comply with a previous order requiring the proceeds to be paid into court, instead holding them in its counsel's trust account.

To avoid further delay and expense, the court applied the Rules of Civil Procedure liberally, varied the previous order to reflect the funds being held in trust, and ordered the disbursement of the funds to the parties and their counsel as agreed.