DATE: 20010213
DOCKETS: C33319
C33441
COURT OF APPEAL FOR ONTARIO
RE: ROMAN WOLYNIUK (Applicant/Appellant) –and– BUSINESS DEVELOPMENT BANK OF CANADA (Respondent)
AND RE: 683032 ONTARIO INC. (Applicant/Appellant) v. BUSINESS DEVELOPMENT BANK OF CANADA (Respondent)
BEFORE: CATZMAN, DOHERTY and SIMMONS JJ.A.
COUNSEL: Thomas J. Corbett, for the appellant Roman Wolyniuk
Thomas Robson, for the respondent Business Development Bank of Canada
Angelo C. D’Ascanio, for the appellant 683032 Ontario Inc.
HEARD: February 8, 2001
RELEASED ORALLY: February 8, 2001
On appeal from the judgment of Justice John G. Kerr dated December 7, 1999.
E N D O R S E M E N T RE : C 3 3 4 4 1
[1] Paragraphs 1 and 2 of the judgment of Kerr J., dated December 7th, 1999, dismissed the appellant 683032 Ontario Inc.’s application for a declaration that it continues to have a right to redeem the mortgaged property and its request for equitable relief from the termination of its right to redeem.
[2] We are not at all certain that the appellant’s right to redeem has not been lost by lapse of time or that the relief the appellant seeks was available by the procedure it adopted. However, counsel for the respondent bank has indicated that his client does not oppose a brief extension of the appellant’s right to redeem so long as it is appropriately defined and limited. In our view, that is an eminently reasonable position.
[3] In the exercise of our discretion, therefore, we would set aside paragraph 2 of the judgment under appeal and in its place substitute an order that the appellant is entitled to an extension of time within which to redeem the mortgaged property on the following terms and conditions:
- such redemption may be effected only upon actual payment of the full
amount outstanding for principal, interest and costs, calculated to the
date on which redemption is made;
such redemption shall be effected on or before the 9th day of March, 2001; and
failing redemption in the amount and on or before the date indicated above, the appellant’s right of redemption, if any, shall be forever lost
and foreclosed.
[4] The appellant will pay to the respondent bank its costs of this appeal, fixed in the amount of $500.00.
Signed: “M.A. Catzman J.A.”
“Doherty J.A.”
“Simmons J.A.”