COURT OF APPEAL FOR ONTARIO
Cronk, Pepall and Benotto JJ.A.
BETWEEN
Sedwick Hill and Merville Hill
Defendants/Appellant
and
Scotia Mortgage Corporation
Plaintiff/Respondent
Sedwick Hill, in person
Justin Winch, for the respondent
Heard and released orally: February 20, 2015
On appeal from the judgment of Justice Joseph M. Donohue of the Superior Court of Justice, dated June 26, 2013.
ENDORSEMENT
1The appellant appeals from the summary judgment granting the respondent amounts owing on a mortgage and a line of credit, leave to issue a writ of possession and dismissing the appellant’s counterclaim.
2During the hearing of the summary judgment motion, the appellant admitted his indebtedness under the mortgage and the line of credit. There were also Revenue Canada liens and property tax arrears. The appellant says that he knew about the liens, but did not know until the motion, that the bank would be relying on them in support of summary judgment.
3The liens aside, the appellant acknowledged that the property taxes were in arrears. This fact on its own put the mortgage into default.
4The appellant argues here, as he did before the motion judge, that he had entered into an agreement with the respondent’s employees and arranged for them to make payments on the mortgage.
5According to the appellant, a third party, Ms. Currie, loaned him $75,000. Of this amount, $35,000 was held back by the employees and was to be used by them to contribute towards his mortgage payments. The appellant led no evidence in support of this claim from the alleged third party lender Ms. Currie.
6The motion judge found, correctly in our view, that there was no evidence to contradict the evidence of the respondent, which established that it was entitled to the $365,045.75 owed under the mortgage and to the $20,686.86 owed under the line of credit. These defaults, together with the outstanding property taxes on the property, permitted the respondent to seek possession.
7We agree with the motion judge that there was no genuine issue requiring a trial, and that the summary judgment and leave to issue a writ of possession were warranted.
8The motion judge also dismissed the appellant’s counterclaim against the respondent for excessive fees, on the basis that there was insufficient evidence in support of that allegation. She indicated that the dismissal was without prejudice to any separate claim against the respondent in respect to the alleged theft of $35,000. We see no error in the motion judge’s ruling on this issue.
9The appeal therefore is dismissed.
10The respondent bank is entitled to its costs of this appeal which, having regard to the terms of the mortgage, we fix in the total amount of $10,000, inclusive of disbursements and HST.
“E.A. Cronk J.A.”
“S.E. Pepall J.A.”
“M.L. Benotto J.A.”