K. Hou

The Bank of Montreal (BMO) sought leave for an extension of time to issue a writ of seizure and sale against the defendant, Adams, more than six years after obtaining default judgment.

The court applied a two-part test: whether the plaintiff waived its rights or acquiesced in non-payment, and whether the debtor relied to his detriment.

The court found BMO met the low bar for the first part, but also found it unjust to penalize the debtor with interest accrued due to BMO's slow action.

Leave was granted, but the writ amount was limited to the judgment, interest, and costs up to December 31, 2019.

The defendant solicitor brought a motion to strike the plaintiffs' claims against him for damages for an improvident sale and for an accounting of sale proceeds.

The plaintiffs, who were third mortgagees, conceded the improvident sale claim against the solicitor.

However, they maintained the claim for an accounting, arguing the solicitor owed a duty to disburse funds honestly and account to subsequent encumbrancers under the Mortgages Act.

The court found the accounting claim was not doomed to fail and dismissed the motion to strike it, but ordered that the claim against the solicitor would be struck if he provided the accounting within 10 days.