COURT OF APPEAL FOR ONTARIO

DATE: 2004-06-07 DOCKET: M30550

RE: NDEM BELENDE (Defendant/Moving Party) – and – ALLAN GREENSPOON and BELLE LASMAN (Plaintiffs/ Responding Parties)

BEFORE: LABROSSE and CHARRON JJ.A. and ROULEAU J. (ad hoc)

COUNSEL: Ndem Belende, the moving party, in person David A. Brooker, for the responding parties

HEARD: May 6, 2004

On appeal from the order of Regional Senior Justice Robert A. Blair of the Superior Court of Justice (as he then was) dated October 31, 2003.

ENDORSEMENT

[1] The litigation between the parties concerns their respective rights under a mortgage granted by the appellant Ndem Belende in favour of the respondents, Allan Greenspoon and Belle Lasman. It is only necessary at this point in time to state some of the relevant facts.

[2] In August 2003, Boyko J. heard a motion brought by Mr. Belende to determine the amount of arrears under the mortgage. By order dated August 29, 2003, the motion judge, amongst other things, set out the amounts that had to be paid to redeem the mortgage.

[3] Mr. Belende took issue with certain of the amounts set out by Boyko J. and sought to appeal her order to the Divisional Court. His appeal was quashed by order of Blair R.S.J., as he then was, on October 31, 2003. Blair R.S.J. quashed the appeal on the basis that Mr. Belende had not obtained leave to appeal from an interlocutory order. Alternatively, if the order was a final one, Mr. Belende’s appeal was in the wrong court.

[4] Mr. Belende now brings a motion before this court for leave to appeal the decision of Blair R.S.J. The respondents take the position that leave should not be granted because there is no reason to doubt the correctness of Blair R.S.J.’s decision to quash the appeal in the Divisional Court.

[5] We agree that the appeal to the Divisional Court was properly quashed because, in our view, Boyko J.’s order was final and no appeal from that order could be brought in that court. The appeal was to this court, as of right. However, it is our view that this should not end the matter.

[6] Mr. Belende represents himself. Although his motion for leave to appeal the order of Blair R.S.J. was misconceived, there is no doubt that Mr. Belende’s intention in bringing this motion was to appeal the substance of Boyko J.’s order. Mr. Belende has maintained his intention to appeal the substance of Boyko J.’s order throughout. Further, his appeal, at least in part, does not appear to be frivolous.

[7] In the circumstances, we are of the view that justice requires that we treat this motion for leave as a motion for an extension of time to appeal Boyko J.’s order and that we grant the extension of time.

[8] Mr. Belende takes issue with Justice Boyko’s stipulation that he should pay not only the outstanding monthly payments that were due, but also monthly interest at the rate of 8% in addition to any other interest owing on the principal. He claims that this, in effect, turned an 8% mortgage into a 16% mortgage. He also disputes the respondents’ entitlement to the prepayment fee in the amount of $5,460.

[9] We have already heard Mr. Belende’s submissions on the merits of his appeal on the hearing of the motion. In the interest of bringing some finality to these proceedings, we are prepared to entertain Mr. Belende’s appeal, but only in respect to the prepayment fee. Although counsel for the respondents was asked about the prepayment fee, we did not receive his submissions as, understandably, he was not prepared to argue the matter on the merits at that time.

[10] In order to dispose of this matter, we direct the respondents to serve and file written submissions within 14 days of this order on whether Boyko J. was correct in including the prepayment fee as one of the amounts that had to be paid to redeem the mortgage. Mr. Belende shall have 7 days to reply to those submissions in writing if he so chooses.

[11] Mr. Belende also brought two further motions before this court: a motion to set aside the order of the Registrar dismissing Mr. Belende’s appeal from the order of Marchand J.; and a motion to fix the proper amount required to be paid to redeem the mortgage. The submissions in respect of those two motions have been completed. We will render our decision on all three motions after receiving the written submissions on the first motion.

[12] The parties may also make additional submissions on costs as part of their written submissions if they see fit.