Court of Appeal for Ontario

Date: 20220928 Docket: C70158

Before: Lauwers, Roberts and Miller JJ.A.

Between:

Glenrio Financing Limited and Ancaster Choice Limited Plaintiffs (Respondents)

And:

Marino Rakovac, 1255717 Ontario Ltd., Katarzyna Adamcewska, 891191 Ontario Ltd., 1255705 Ontario Ltd., 1255717 Ontario Ltd., 1290976 Ontario Ltd., the Toronto-Dominion Bank, Computershare Trust Company of Cananda, Charlie Terrana, Nicole Terrana and Canadian Western Trust Company Defendants (Appellants)

Counsel:

Daniel Richter, for the appellants, Marino Rakovac, 1255717 Ontario Ltd., 1255705 Ontario Ltd., and 1290976 Ontario Ltd. Colleen Yamashita, for the respondents

Heard: September 26, 2022

On appeal from the judgment of Justice Paul Sweeny of the Superior Court of Justice, dated November 24, 2021.

Reasons for Decision

[1] At the conclusion of the appellants’ submissions, we dismissed the appeal with reasons to follow. These are those reasons.

[2] This appeal arises out of the default of the appellant mortgagors, 1255717 Ontario Ltd., 1255705 Ontario Ltd. and 1290976 Ontario Ltd., under their mortgages with the respondent mortgagees, which were guaranteed by the appellant, Marino Rakovac, the appellant mortgagors’ controlling mind and will. The motion judge granted the respondents summary judgment of all amounts owing under the mortgages as well as possession of the mortgaged properties.

[3] The mortgages were not paid out. However, the appellants argued before the motion judge and again on appeal that the parties had entered into an agreement that the respondent mortgagees would not seek payment under the mortgages until the subject properties were “construction ready”. The appellants submit that the motion judge erred in finding that there was no such agreement.

[4] We are not persuaded that the motion judge made any reversible error. In careful and thorough reasons, the motion judge correctly assessed the evidence and determined that no such oral or written agreement ever existed and that, after several extensions of their maturity dates, the mortgages remained in default. As the motion judge correctly found, the parties’ conduct, as well as their written documentation, was inconsistent with the appellants’ assertion of an agreement to forebear or to provide further funds. Nothing prevented the mortgagees from taking any proceedings that they deemed necessary on the mortgagors’ default. We do not accept the appellants’ submission that the motion judge failed to address their argument that Mr. Rakovac was a party to the alleged agreement. The motion judge clearly considered whether there was any such agreement and whether Mr. Rakovac was a party to it. Absent reversible error, which we do not see here, the motion judge’s findings, including that no such agreement existed, are subject to considerable appellate deference.

[5] At the hearing of the appeal, the appellants abandoned their argument concerning the inclusion of late payment fees in the calculation of the mortgages.

[6] For these reasons, the appeal is dismissed.

[7] The respondents are entitled to their partial indemnity costs of the appeal from the appellants in the amount of $7,500, inclusive of disbursements and applicable taxes.

“P. Lauwers J.A.”

“L.B. Roberts J.A.”

“B.W. Miller J.A.”