Court of Appeal for Ontario
Date: 2021-12-01 Docket: M52984 (C70058)
Before: Nordheimer J.A. (Motions Judge)
Between:
National Bank of Canada Plaintiff (Respondent/Responding Party)
and
Marcel Guibord Defendant (Appellant/Moving Party)
Counsel: Marcel Guibord, acting in person Grand Chief Wabiska Mukwa, acting in person Michael S. Myers, for the responding party
Heard: November 30, 2021 by video conference
Endorsement
[1] Mr. Guibord brings this motion, on an urgent basis, for an order staying the writ of possession obtained by the respondent pursuant to an order of Mew J. dated October 5, 2021. The writ of possession was part of the relief that arose from the summary judgment granted by the motion judge. [1]
[2] At the outset of the hearing, the appellant asked that I allow Grand Chief Mukwa to speak on his behalf. While I would not normally permit that to happen, given the provisions of r. 15.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, counsel for the respondent consented to having Grand Chief Mukwa speak so I permitted it. In the end result, I had the bulk of the appellant’s submissions from Grand Chief Mukwa, supplemented by submissions from the appellant.
[3] The test on a stay motion is well-known. It is set out in RJR-MacDonald Inc. v. Canada (Attorney General), [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.
[4] In my view, the appellant fails on all three of these factors. First, I see little merit to the appellant’s grounds of appeal. While I do not question the importance of some of the issues that the appellant raises that surround the question of land claims by Indigenous peoples, those issues, as the appellant attempts to invoke them in his appeal and on this motion, do not relate to any of the issues raised by the motion for summary judgment. That motion dealt with a straightforward commercial arrangement between the parties on which there had been default by the appellant. That default entitled the respondent to exercise its rights under the security which it held, namely a mortgage. The respondent sought, and obtained, summary judgment arising from the default, which included obtaining a writ of possession. The various principles and proclamations to which the appellant refers, including the United Nations Declaration of the Rights of Indigenous Peoples, simply have no proper application to the issues raised on the summary judgment motion.
[5] Second, the appellant will not suffer irreparable harm if the writ of possession is enforced. If the appellant suffers any losses arising from that enforcement, those losses are entirely compensable by way of damages. I would note in passing, on this point, that the appellant’s argument that the property in question is worth many times what is owed on the mortgage, begs the question why, if that is the case, the appellant has not simply refinanced the property and paid the mortgage out. On the other side of this factor is the fact that the respondent’s mortgage is a second mortgage. The first mortgage is a reverse mortgage for which no interest payments are required. Rather, the interest accrues and increases the amount due under the first mortgage. Consequently, delay operates to reduce the appellant’s equity in the property and thus prejudices the position of the respondent.
[6] Third, the balance of convenience does not favour the appellant. The summary judgment is presumptively valid. The writ of possession is not automatically stayed by virtue of r. 63.01(1) of the Rules of Civil Procedure. The enforcement of security validly given by a party, who is in default, should not be interfered with absent compelling reasons. Otherwise, the essential functioning of these type of commercial arrangements would be undermined. I note that the appellant’s default dates back to January 2019, so he has had time to adjust to the reality that this day would arrive.
[7] Other considerations also bear on this factor. One is that the appellant has not given a satisfactory explanation for why he waited until just days before the writ of possession was to be enforced to bring this motion, when the writ of possession arises from a decision of the motion judge that was given almost two months ago. Another is the salient fact that the appellant gave this mortgage to the respondent some four years ago for the express purpose of avoiding the respondent exercising its rights under a writ of seizure and sale that it held. The mortgage was given to obtain the forbearance of the respondent, in order to avoid the eviction of the appellant from the property at that time. Yet another is the fact that the appellant has a number of outstanding costs awards against him, including from this court. A party cannot, on the one hand, seek relief from a court yet, on the other hand, not obey orders made by the court.
[8] For all of these reasons, the motion for a stay is dismissed. The respondent is entitled to its costs of the motion, which I fix in the amount of $7,000 inclusive of disbursements and HST, recognizing that the mortgage entitles the respondent to recover its full indemnity costs.
“I.V.B. Nordheimer J.A.”
