COURT OF APPEAL FOR ONTARIO
RE:
IN THE MATTER OF SIMCOE CORPORATION NO. 27 AND AN APPLICATION UNDER THE CONDOMINIUM ACT AND MORTGAGES ACT
CITIFINANCIAL MORTGAGE CORPORATION (Plaintiff) – and – SIMCOE CONDOMINIUM CORPORATION NO. 27, 662480 ONTARIO LTD. LUCY CIANCIULLI, KENNETH COWAN, KEN JAMES, JAMES AND ASSOCIATES, KINGSTON HOLDINGS LTD. AND MARSHALL POLLACK (Defendants/Appellants) – AND BETWEEN – SIMCOE CONDOMINIUM CORPORATION NO. 27, 662480 ONTARIO LTD., LUCY CIANCIULLI and KENNETH COWAN (Plaintiffs by Counterclaim/Appellants) – and – CITIFINANCIAL MORTGAGE CORPORATION and 1450996 ONTARIO INC. and CHRIS TOMKINSON (Defendants by Counterclaim/Respondents)
BEFORE:
McMURTRY C.J.O., SIMMONS AND MacFARLAND JJ.A.
COUNSEL:
David Bleiwas
For the appellant
Kevin Sherkin
For the respondent Citifinancial Mortgage
Ray Stancer
for the respondent Chris Tomkinson and 1450996 Ontario Inc.
HEARD & ENDORSED:
September 22, 2005
On appeal from the order of Justice J. R. McIsaac of the Superior Court of Justice at Newmarket dated June 15, 2004.
A P P E A L B O O K E N D O R S E M E N T
1We find no error in the reasons and conclusions of McIsaac J in holding that the discharge of the appellants’ liens provides a complete answer to the appellants’ claim against the subsequent purchases for the arrears of common expenses accumulated during the occupancy of Citifinancial, the mortgagee in possession.
2The respondents agree that the intent of the motions judge’s judgment was to dismiss paragraph 19(a) and 20(a) only of the appellants’ Statement of Defence and amended counter-claim. We would amend the judgment accordingly.
3The appeal is otherwise dismissed. The respondents are each entitled to their costs fixed in the amount of $2,500 for Citifinancial and $3,500 for the respondent, Tomkinson et al.