Court of Appeal for Ontario
Lauwers J.A. (Motion Judge)
Between
KLN Holdings Inc., Seagrave Building Systems Limited, Olympia Trust Company, and Andreas Dretsios
Respondents
and
Gary Grant and CWR Inc.
Applicant (Appellant)
Counsel:
Mr. Gary Grant, acting in person
Mr. Michael Myers and Mr. Parjot Benipal, for the respondents
Heard: March 16, 2023
Endorsement
1Mr. Grant appears on his own behalf and represents his company, CWR Inc., as Daley J. authorized. He moves for a stay of the execution of a writ of possession granted by Mirza J. in his summary judgment dated February 1, 2023, pending this court’s disposition of his appeal.
2The context is set by Mr. Grant’s admissions set out by the motion judge at paras. 38-40:
Mr. Grant admits that he entered into the mortgage commitment with his mortgage broker in January 22, 2019 for $1.7 million. He accepts that he used the six properties as security for the mortgage.
He concedes that the Plaintiffs provided the funds for the mortgage.
He admits that he has defaulted on the mortgage since 2020.
3Mr. Grant disputes the amount owing, but as the motion judge noted at para. 43: “He admits that even on his own numbers, he is still in default of the mortgages.”
4Mr. Grant submits that by appealing the summary judgment, he benefits from r. 63.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. However, that rule does not apply to writs of possession: National Bank of Canada v. Guibord, 2021 ONCA 864, at para. 6. There is no automatic stay in this case.
5Mr. Grant therefore requests a stay under the court’s general jurisdiction. The test on a stay motion is set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. The test requires the court to consider three factors: (i) whether there is a serious issue to be tried; (ii) whether the moving party will suffer irreparable harm; and (iii) an assessment of the balance of convenience between the parties.
6In my view, Mr. Grant has not identified a serious issue to be tried. He did not point to any legal errors made by the motion judge or to any palpable and overriding errors of fact.
7Mr. Grant advises that he started an action against several parties other than the mortgagees, for relief, and submits that it should be taken into account in this stay motion. In my view, that is a separate matter and cannot assist him here: Pearl Hospitality Inc. v. Ceballos, 2020 ONCA 672, at paras. 2-3.
8Nor has Mr. Grant established irreparable harm. If the accounting ultimately reveals that he was shortchanged in the disbursement of the mortgage funds as to amount, or as to timing, his entitlement would be to damages. Mr. Grant has occupied this residence only for a short time. It is not the family homestead. Even on his own accounting, he and his company owe more than $800,000.
9Finally, Mr. Grant now admits that the respondents should be paid while he occupies the residence, and offers rent of $3,000 per month. The respondents have not been paid in a very long time on a mortgage debt. The balance of convenience favours the respondents, not Mr. Grant.
10In Berlianco Inc. v. Wee Rent It Ltd., [1999] O.J. No. 4081, Charron J.A. (as she then was) noted, at para. 3: “It is clear from the cases that, under ordinary circumstances, a court will not interfere with the proper exercise of a mortgagee's power of sale except upon tender by the mortgagor of the principal moneys due, with interest and costs, or without ensuring that the mortgagee is otherwise fully protected.” There are exceptions, but this case is not one of them.
11Mr. Grant asks this court to grant a short stay of three months to allow him to find alternative accommodation. The motion judge granted a six-week grace period to Mr. Grant which he did not use for that purpose. While I will not formally provide another such grace period, counsel for the respondents advises that the eviction will not likely occur until the end of April, even in the ordinary course. I trust that this gives Mr. Grant sufficient time to find other accommodation.
12The motion for a stay of the execution of the writ of possession is refused. As provided by the mortgage, the respondents are entitled to costs on a substantial indemnity basis, fixed at $14,100 plus HST.
“P. Lauwers J.A.”