Jennifer Croswell

The appellant appealed an order dismissing her claims regarding the respondent mortgagees' taking of possession of a house after default on a mortgage she guaranteed, and challenging certain fees and charges.

The Court of Appeal found no error in the motion judge's conclusion that the peaceable taking of possession was not contrary to s. 42(1) of the Mortgages Act, as no action or proceedings were commenced.

The court also upheld the factual findings that the property was vacant and possession was peaceable.

While the main appeal on the legality of possession and associated fees was dismissed, the respondents conceded a credit of $8,616.49 for three months' interest charges.

The appeal was allowed only to reflect this credit, and otherwise dismissed.

The plaintiffs sought costs of $13,736.49 on a full indemnity basis following a motion brought by the defendants regarding a power of sale and mortgage redemption.

The defendants had achieved partial success on the motion, securing a reimbursement of $11,700 for excess charges, but their claims of illegal possession were dismissed.

The court found that while the plaintiffs were contractually entitled to full indemnity costs for collection efforts, the divided success warranted a reduction.

The defendants were ordered to pay $10,000 in costs to the plaintiffs.

The defendants (chargor and guarantor) brought a motion seeking a declaration that the plaintiff mortgagees illegally took possession of the mortgaged property and seeking a review of the fees charged to redeem the mortgage.

The court found that the plaintiffs legally and peaceably took possession of the unoccupied property after default, and complied with the notice provisions of the Mortgages Act.

However, the court disallowed $11,700 in repeated administrative and nonpayment fees charged by the plaintiffs, finding them to be an unenforceable penalty contrary to section 8 of the Interest Act, and ordered reimbursement to the defendants.

The plaintiffs brought a motion for summary judgment seeking payment on two defaulted charges/mortgages and possession of the secured properties.

The defendants had defaulted on payments and failed to pay out the charges at maturity.

One defendant did not appear, and the other appeared but filed no materials, arguing only that refinancing was difficult due to marital separation and lack of cooperation from the co-owner.

The court found no genuine issue for trial, granted summary judgment for the plaintiffs for the outstanding debt and possession of both properties, and assessed costs.

The court clarified that obtaining a Writ of Possession for a residential rental unit requires compliance with the Residential Tenancies Act.