COURT FILE NO.: 68355/03
DATE: 2003/10/31
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Belende Ndem v. Allan Greenspoon et Belle Lasman
BEFORE: R.A. Blair, R.S.J.
COUNSEL: Mr. B. Ndem, in person Mr. David A. Brooker, for the plaintiffs/respondents
E N D O R S E M E N T
[1] In this action the Plaintiffs (Mortgagees) are attempting to exercise their rights under a mortgage. They seek judgment for the amounts of principal and interest outstanding as a result of default in payment by Mr. Ndem (the Mortgagor). They also seek possession of the premises in order to be able to sell them.
[2] In August 2003, Mr. Ndem sought an order under Section 20 of the Mortgages Act requiring the Mortgagees to provide him with particulars of the payments due. On August 29, 2003, Justice Boyko ordered that Mr. Ndem is at liberty forthwith to redeem the mortgage and fixed the amounts to be paid by him in order to do so. Mr. Ndem has appealed from that Order to the Divisional Court.
[3] In this motion, the Mortgagees seek an order quashing Mr. Ndem’s appeal. They submit:
a) that the order of Justice Boyko is an interlocutory order and that Mr. Ndem has not sought leave to appeal from that order; moreover, if the order is a final order, Mr. Ndem must appeal to the Court of Appeal; and,
b) that the appeal is frivolous and vexatious and an abuse of the process of the Court.
[4] Alternatively, the Mortgagees seek an order requiring Mr. Ndem to pay security for costs of the appeal.
[5] It is difficult to determine exactly what Mr. Ndem’s grounds of appeal are, from reading the materials. However, he clarified for me during his argument that he contests the order on two bases, namely:
a) that Justice Boyko erred in calculating the amounts to be paid; and
b) that Justice Boyko did not accord him his right to redeem, because she simply gave him the liberty to exercise that right without having given him a reasonable period of time to do so, and did that instead of recognizing he has the right at law to redeem.
[6] It is not necessary to deal with these arguments in order to determine this motion. In my opinion, Mr. Ndem’s appeal must be quashed.
[7] My reasons are based on the Mortgagees first ground, namely that the Order of Justice Boyko is an interlocutory order and Mr. Ndem has not obtained leave to appeal from it. The Order does not determine the substance or merits of the action between the parties (that is, whether the Mortgagees have the right to possession and to sell the premises); rather, it determines a collateral and procedural question (that is, the amount of the payments due so that Mr. Ndem may exercise his right to redeem). See Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675 (C.A.); Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 2403 (ON CA), 19 O.R. (3d) 97 (C.A.); Sun Life Assurance Co. v. York Ridge Developments Ltd., [1998] O.J. No. 4899 (C.A.).
[8] Paragraph 19(1)(b) of the Courts of Justice Act states:
19(1) An appeal lies to the Divisional Court from,
b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court
[9] Mr. Ndem has not sought leave to appeal. It follows that his appeal must be quashed.
[10] Even if I am wrong in this conclusion, there remains an insurmountable problem for Mr. Ndem on this motion. If the order of Justice Boyko is not an interlocutory order it must be a final order. An appeal from a final order of this nature is not to the Divisional Court, but rather the Court of Appeal. Having regard to all the circumstances of this case, I would not exercise my discretion to transfer the appeal to the Court of Appeal under Section 110 of the Courts of Justice Act.
[11] Given this disposition of the motion, it is not necessary to deal with the other questions raised by the Mortgagees.
[12] Since Mr. Ndem has demonstrated an intention to appeal from the order of Justice Boyko, however, I would grant him an extension until Friday, November 7, 2003 to move for leave to appeal, if so advised. In doing so, I make no comment on the merits of such a motion or on the merits of his proposed appeal.
[13] Accordingly, for the foregoing reasons, the motion is allowed and the appeal of Mr. Ndem is quashed.
R.A. BLAIR, R.S.J.
DATE: October 31, 2003
COURT FILE NO.: 68355/03
DATE: 2003/10/31
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Belende Ndem v. Allan Greenspoon et Belle Lasman
BEFORE: R.A. Blair, R.S.J.
COUNSEL: M. Ndem, in person Mr. David A. Brooker, for the plaintiffs/respondents
ENDORSEMENT
R.A. BLAIR, R.S.J.
DATE: 2003/10/31