Court File and Parties

Court File No.: CV-19-1382-00 Date: 2020-04-14

Ontario Superior Court of Justice

Between: Sibyl Investment Holding Inc. and Pinewood Real Estate Holdings Inc., Plaintiffs (Responding Parties) And: Michael Serviglio Vlachich, Defendant (Moving Party)

Counsel: David Carter and Daniele Grechi, for the Plaintiffs (Responding Parties) Enio Zeppieri and Gregory Gryguc, for the Defendant (Moving Party)

Heard: March 31, 2020

Reasons for Judgment

Lemay J.

[1] The Defendant, Michael Vlachich, owned a property on Highway 10 in Caledon. The Plaintiffs held a mortgage on the property. Last spring, the mortgage went into default and the Plaintiffs commenced an action. In July of 2019, as part of that action, the Plaintiffs served a Notice of Sale. The Defendant has not plead to the action, and has been noted in default. However, default judgment has not been granted.

[2] After some considerable back and forth between the parties, the Plaintiffs ultimately sold the property to a third party purchaser. The sale was scheduled to close on March 31st, 2020.

[3] The Defendant sought an injunction to prevent the sale on the basis that the test in RJR MacDonald was satisfied. The Defendants argued, inter alia, that the property was a unique property, that the Notice of Sale was so woefully deficient that it was not effective, and that the Defendant had not been given proper credit for payments that he had made on the mortgage.

[4] The Defendant claimed that their motion for an injunction was urgent. As a result, I reviewed their filings and determined that the matter “might” be urgent. A conference call was scheduled for the afternoon of March 31st, 2020, and I heard submissions from both sides. At the conclusion of the conference call, I dismissed the Defendant’s motion on its merits with written reasons to follow. These are those reasons.

Background

a) The Parties and the Property

[5] The property in dispute is municipally known as 16363 Hurontario Street, R.R. #1, Caledon (“the property”). The property is approximately five (5) acres in size, and it has a house on it. The Defendant purchased the property in March of 2003.

[6] The Plaintiffs are companies that provide, inter alia, financing services. They held a mortgage on the property.

[7] The Defendant works in the construction business. In addition to the property, he owns at least one more property on South Service Road in Mississauga. He used the property for the storage of materials and tools related to his construction business. In addition, he was planning to renovate the house on the property and retire to it.

[8] The Plaintiffs’ mortgage on the property is a second charge on the property, and was taken over by the Plaintiff on April 1, 2016. It is for a principal amount in the sum of $320,000.00, with an interest rate of 9.9 percent per annum. The interest is payable monthly, but there is no obligation to pay any principal amounts until maturity.

[9] There is a first mortgage on the property. I am not aware of the amount of that mortgage.

b) The Default and the Proceedings

[10] According to the Affidavit of Mr. Victor Lee, a Director of the Plaintiff Pinewood, no payments have been made since February 19th, 2019, and the mortgage has remained in default since that time.

[11] This action was commenced by the Plaintiffs on March 27th, 2019, and a Statement of Claim was served on the Defendant. A Notice of Intent to Defend was served by the Defendant on April 5th, 2019, but the Defendant has never pled to this action.

[12] The parties conducted ongoing negotiations about refinancing the property. On July 22nd, 2019, a Notice of Sale was served on the Defendant. This Notice of Sale showed an amount of $433,436.14 outstanding and advised that, unless these amounts were paid before September 3rd, 2019, the property would be sold pursuant to the terms of the mortgage.

[13] When the Notice of Sale was served in July of 2019, the Defendant’s then counsel, Evan Moore, challenged it on the basis that it was “deficient to the point that the mortgagees cannot rely on it to enforce the alleged default.” Mr. Moore did not explain in detail how the notice was deficient. However, when the subsequent correspondence that was filed is reviewed, there are two potential issues that were raised:

a) A cost of approximately $45,000.00 on account of payments to the Town of Caledon. b) A $15,000.00 credit for payments that were made on account of interest on the mortgage.

[14] Mr. Grechi dealt with both of these matters in his correspondence, and explained that the monies had been paid to the Town of Caledon, and that he had accounted for the other payments. Since Mr. Grechi’s correspondence in the early fall of 2019, neither Mr. Moore (previous counsel) nor Mr. Zeppieri (current counsel) have challenged the bulk of the amounts in the notice of sale.

[15] On August 5th, 2019, the Plaintiffs requisitioned a noting in default against the Defendant, and the Defendant was noted in default. The Defendant did not take any steps to set aside this noting in default until this motion was brought.

c) The Efforts to Refinance

[16] I have no evidence of any efforts on the part of the Defendant to refinance the property between April and June of 2019. However, after June of 2019, it is clear that the Defendant was trying to obtain refinancing for the property.

[17] First, there was some correspondence that suggested a mortgage commitment might have been coming in June of 2019. That commitment fell through for reasons that are not clear on the record.

[18] Then, in November of 2019, there was a second commitment letter from the Sinclair-Cockburn Mortgage Investment Corporation. That commitment was for an amount that would clearly have allowed the Defendant to pay the mortgage and other costs of the Plaintiffs. In addition to Sinclair-Cockburn, there may have been other lenders in this time period that were interested in the property although the record is not completely clear on this point.

[19] During this time, the Plaintiffs were prepared to lend at least small amounts of money (around $25,000.00) to cover any shortfall if the Defendant was not quite able to obtain sufficient financing to clear the Plaintiffs’ mortgage.

[20] Ultimately, however, the new potential lender withdrew from the transaction on January 9th, 2020. Since that time, there has been no indication that any lenders have been interested in financing the property for the Defendant. During argument, I asked Mr. Gryguc whether there was any evidence of any other lenders being interested in financing the property. The response was that the Defendant was optimistic of receiving financing. On my review of the record, however, there is no evidence that anyone has been interested in considering providing the Defendant with financing since January of 2020.

d) The Sale and This Motion

[21] As noted in the previous section, the Defendant was given time to refinance the property, even after the Plaintiffs were in a position to legally move forward with the sale of the property on September 3rd, 2019.

[22] However, after the financing fell through in January of 2020, the Plaintiffs’ counsel advised the Defendant’s counsel that the Plaintiffs would be moving to sell the property. The Defendant was advised of significant steps that the Plaintiffs were taking, including maintenance and other steps taken to make the property ready for sale.

[23] For example, on February 11th, 2020, Mr. Grechi advised Mr. Zeppieri that his client would be having appraisals done, and that these costs would be added to the costs that the Plaintiffs would be seeking unless the monies owing under the mortgage were paid within the next four business days. In this same email, Mr. Grechi advised that, if the Plaintiffs were not paid by February 21st, 2020, they would move to the next stage of clean-up of the property, which would be the removal of boats, construction equipment and other chattels on the property.

[24] The Plaintiffs had two appraisers value the property. The valuations were $780,000.00 and $785,000.00. These valuations were completed after the Notice of Sale had been served. Indeed, they are relatively recent appraisals, both of them having been completed at the end of February, 2020. The Defendant has not filed any documents to dispute these valuations. However, in his Affidavit, the Defendant deposes that the property would sell for approximately $1,500,000.00.

[25] The appraisals include photographs of the property. Describing the property as dilapidated is significantly understating the matter. Based on these appraisals, the house does not have a working kitchen and there is evidence of both water damage and mould. There was also no evidence of any renovations being done to the property by the Defendant.

[26] An Agreement of Purchase and Sale was signed on March 11th, 2020. The purchaser, who I understand is a developer, has purchased the property for $875,000.00.

[27] At this point, the Plaintiffs allege that the unpaid property taxes on the property are over $100,000.00. The sworn evidence that I have on this motion is from Mr. Grechi, and suggests that the amount of arrears and charges is approximately $118,000.00. This information and belief is based on Mr. Grechi’s office contacting the Town of Caledon and being advised as to the outstanding amounts.

[28] Shortly before the motion was heard, the Plaintiffs filed a statement that appears to come from the Town of Caledon, and states that the arrears of property taxes are $119,623.33, and that the arrears have been accumulating since at least 2017. Based on a cursory review of the statement, it would appear that the arrears have been accumulating for a significant period of time. However, this document was not attached to a sworn Affidavit, so I must take that fact into account.

[29] In addition to these unpaid amounts, the expenses incurred by the Plaintiffs have risen substantially since the Notice of Sale was provided in July of 2019. The additional expenses include additional interest, cleaning up the house (both inside and outside) and legal fees. The amount claimed by the Plaintiffs is now approximately $520,000.00

[30] The Defendant provided an Affidavit dated March 11th, 2020 in which he raised a number of issues relating to this transaction and provided a copy of the Statement of Defence that he wished to file. This is the first time that I am aware of the Defendant seeking any relief from the Courts. It is not clear to me on the record when this Affidavit was served on the Plaintiffs’ counsel.

[31] On March 27th, 2020, the Defendant sought to bring an urgent motion. That request was denied on a preliminary basis by the Local Administrative Judge in Brampton. The request was renewed again on March 30th, 2020, and was referred to me for consideration. The request was accompanied by only an Affidavit from Mr. Zeppieri.

[32] On review of the Defendant’s materials, I issued an endorsement on March 30th, 2020, in which I determined that this matter might be urgent, and directed the Plaintiff to file responding materials addressing both the question of whether the motion was urgent and what should be done about the merits of the motion. I also directed the Defendant to serve all of his motion materials on the Plaintiff. A conference call was scheduled by me for 2:00 p.m. on March 31st, 2020.

[33] The Defendant then filed a Notice of Motion that was returnable April 2nd, 2020. That Notice of Motion, which had not been requested by me, sought various relief from the Court, including an Order dismissing the action and an Order for the return of various chattels that the Defendant says were improperly removed from the property. It included the Affidavit from the Defendant sworn March 11th, 2020, which was something that I had requested.

[34] On our conference call, counsel for the Defendant advised that this motion record was the motion that they had intended to bring before they sought the urgent hearing before me on March 31st, 2020. I am not going to consider the issues of whether the chattels should be returned or the entire action should be dismissed. Those are issues that are not amenable to a resolution on this type of motion.

[35] The Plaintiffs filed responding materials that included two Affidavits as well as a factum. The Defendants also provided some cases, along with some submissions about those cases, in advance of the hearing of the motion. I was able to review this material in advance of the teleconference.

Issues

[36] There are three issues that arise on these facts, as follows:

a) Is this an urgent matter within the meaning of the Superior Court of Justice’s practice direction respecting the Coronavirus? b) Does the motion require me to address the underlying noting in default? If not, is there any significance to the noting in default? c) Does this motion meet the test for injunctive relief?

[37] I will deal with each issue in turn.

Issue #1 - Is This Matter Urgent?

[38] The Defendant argued that this matter was urgent because he was going to lose the opportunity to keep his property, which he viewed as unique. Although the Plaintiff was invited to make submissions on the preliminary question of whether this matter was urgent, their submissions were focused on the merits of the case.

[39] As a result, I have not heard any significant argument from either party as to whether this matter meets the test of urgency required by the practice direction. At first blush, it would appear that this matter meets the test for an urgent matter.

[40] I start with the practice direction, which states that the Court will hear “urgent and time sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing.”

[41] In this case, the reason why the matter, at first blush, appears to be urgent is the fact that the property was to be sold on March 31st, 2020, and the Defendant would have lost any right to claim the property as part of the litigation once it was sold. There are circumstances where losing the right to specific performance would be seen as having immediate and significant repercussions for a party and therefore would meet the test of urgency under the practice direction.

[42] Certainly, the test for urgency may very well be met if a party is going to forever lose a substantive right if the Court does not hear the motion when it is brought. However, the problem in this case is that there are real questions as to whether the Defendant actually has any right to the property anymore and whether he has unreasonably delayed in pursuing those rights.

[43] In this case, the parties did not provide me with argument on the question of whether this case met the test of urgency. In addition, the merits of the case were fully argued by both sides, and the question of urgency is (to a certain extent) wrapped up in the merits of the Defendant’s motion. Given all of these considerations, I have determined to decide the matter on its merits rather than dismissing it on a preliminary basis. The question of whether the matter is urgent is a threshold question.

Issue #2 - Noting in Default

[44] The Defendant has been noted in default, but a default judgment has not been issued. In the course of oral argument, I asked both counsel their views on whether or not I needed to address whether the noting in default should be set aside before considering the application for an injunction. Both counsel advised me that it was not necessary to determine whether the noting in default should be set aside in order to determine the issue of the injunction and I have not addressed that issue.

[45] There are two further points that must be made about the noting in default. First, given the Provincial Cabinet’s Order in Council suspending limitation periods effective March 16th, 2020 for the duration of the current limitations period, there is no basis for the Defendant to bring an urgent motion to set aside the noting in default, and the Defendant may not bring that motion prior to the resumption of the Court’s normal operations.

[46] Second, the noting in default and the delay on the part of the Defendant to move to set that noting in default aside is a matter that should be considered in the balance of convenience analysis. I will address it when I return to that point below.

Issue #3 - Should an Injunction Be Granted?

a) The Legal Test for an Injunction

[47] The test for an injunction has been set out in R.J.R. MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311. The moving party must show:

a) There is a serious issue to be tried; b) The applicant will suffer irreparable harm if the injunction is not granted; and c) The balance of convenience favours granting the injunction.

[48] Counsel for the Plaintiff points to a number of decisions that stand for the proposition that, subject to a mortgagor’s right to bring the mortgage into good standing or redeem it, a mortgagee who is acting in good faith and without fraud will not be restrained from a proper exercise of his or her power of sale rights unless the amount owing is paid into Court. On this point, see Arnold v. Bronstein, [1971] 1 O.R. 467 (H.C.J), Hornstein v. Gardena Properties Inc, (2005) 34 R.P.R. (4th) 301 and Aramasco v. Linderwood Holdings Inc., 2016 ONSC 1605 at para. 45.

[49] These cases clearly suggest, as the Plaintiffs assert, that the power of an injunction to stop the sale of a property in a power of sale should only be used in extreme cases. I have had regard to those cases in reaching my conclusion. However, the test for an injunction is not met regardless of which test is used.

b) The Positions of the Parties

[50] The Defendant’s position is that the first two parts of the test are clearly met. In addition, the Defendant argues that this is a unique property, the notice of sale was so deficient that it was void, and that the Defendant had not been given proper credit for payments made towards the mortgage. As a result, the Defendant seeks an injunction to prevent the sale of the property.

[51] The Plaintiffs argue, as discussed above, that injunctive relief is an inappropriate remedy, given that this is a proceeding under a Notice of Sale. In addition, the Plaintiffs point out that it would suffer prejudice if the sale was not allowed to proceed. Specifically, the Plaintiffs argue that the current above market value sale would be lost, it would be months until the injunction was lifted, and there is no guarantee that a new buyer would be prepared to pay the same money as is on offer for the property now.

c) A Serious Issue to be Tried

[52] The question of whether there is a serious issue to be tried in this case was assumed by the Defendant. The Plaintiff did not focus the bulk of its arguments on this point, but did resist the Defendant’s position that there was a serious issue to be tried. In particular, the Plaintiffs point out that, in a power of sale action, the Defendant’s right to tender end when a firm and binding agreement of sale is in place. On this point, see Girard v. MCAP Service Corp., 2004 ONSC 14776.

[53] At some point in this case, there could be a motion to set aside the noting in default. On agreement of the parties, that question is not before me. Part of the test for setting aside a noting in default may require some discussion of the merits of the case. Commenting on whether there was a serious issue to be tried may well be commenting on whether the Court had grounds to set aside the default judgment. Given my conclusions on the other two branches of the test, it is neither necessary nor desirable for me to address this issue.

d) Irreparable Harm

[54] This branch of the test requires the Court to consider whether the harm that will befall the moving party if the motion is not granted is a harm that either cannot be quantified or cannot be cured at a later date. In this case, the question of irreparable harm turns on whether the Defendant can demonstrate that the property has some unique features that would make an award of damages insufficient.

[55] As part of the materials that I requested for this case in advance of the conference call, I directed the Defendant’s counsel to provide my judicial assistant with an e-mail outlining the reasons why this property was unique for the Defendant. The three points that the Defendant raised were as follows:

a) The property was purchased in 2003 as the Defendant’s personal residence and a major investment for his retirement. b) The property is a large piece of property (more than five acres), which the Defendant uses for both his personal residence and his construction business. c) The property is on Highway 10, which makes it “easily accessible to all work locations.”

[56] Defence counsel points to the decision in John E. Dodge Holdings v. 805062 Ontario Ltd., (2001) 56 O.R. (3d) 341 (S.C.J.) where Lax J. noted that determining whether a property is unique requires a consideration of the particular property and the particular party in order to determine whether an award of damages would be insufficient to compensate a wronged party. Further, the party claiming that the property is unique has the onus to prove that the property is actually unique.

[57] The decision of Lax J. was affirmed on appeal (see John E. Dodge Holdings v. 805062 Ontario Ltd., (2003) 63 O.R. (3d) 304 (Ont. C.A.)), and follows the principles set out in the Supreme Court of Canada’s ruling in Semelhago v. Paramadevan, [1996] 2 S.C.R. 415.

[58] When these principles are applied, it is difficult to see how this property is unique within the meaning of the case-law. The fact that the Defendant intended to retire to this property does not, without more, make it a unique property. There was no indication of any specific feature of the property (a vista, a sentimental attachment, a particular terrain) that would not be available on another property. Similarly, the fact that the property could be used for business storage or was close to a main highway does not make it unique. Many properties have these features.

[59] Given the foregoing, the Defendant has failed to establish that the property is unique. There is nothing about the property that cannot be readily duplicated elsewhere. This leads me to the conclusion that, even if the property has been wrongfully sold or undervalued in the sale, the Defendant could still pursue a claim in damages against the Plaintiffs and a monetary award would be sufficient to compensate the Defendant for any losses.

[60] As a result, the Defendant will not suffer any irreparable harm if the transaction proceeds. The Defendant’s motion would fail on this basis alone. However, other arguments have been raised, and I will address those arguments under the balance of convenience portion of the test.

e) Balance of Convenience

[61] On this branch of the test, I am required to consider the relative problems associated with granting or not granting an injunction. This portion of the test requires a balancing of the relative harm that would befall either party from granting or not granting the injunction. The factors to be considered in assessing this branch of the test are to be determined on a case-by-case basis.

[62] I will start with the Plaintiffs’ position. The Plaintiffs assert that the balance of convenience favours denying the injunction for two main reasons. First, in this uncertain economic climate, the Plaintiffs may not obtain an offer for the property that is as favourable as what they obtained from the current purchaser. Second, the Plaintiffs will be required to assume further carrying costs of the property, which would result in further losses to them.

[63] The Defendant asserts that the balance of convenience favours him for a number of reasons, as follows:

a) The property is unique to the Defendant. b) The property is being sold for substantially less than it is worth. c) The Notice of Sale was deficient and was, therefore, void. d) The deficient Notice of Sale and other conduct on the part of the Plaintiffs prevented the Defendant from refinancing the property. e) The Plaintiffs entered into the property without a Writ of Possession and have acted in “an unreasonable and high-handed manner and those actions appear to be made with malice”

[64] I have already rejected the Defendant’s argument that the property is unique in the previous section. That analysis applies equally here as well. I will address the other arguments advanced by the Defendant in turn. I will then provide a summary of my conclusions on the balance of convenience.

The Value of the Property

[65] The Defendant asserts that the property is being sold significantly under its value. There are two problems with this argument that are fatal to it.

[66] First, the defendant has tendered no evidence to support his claim that the property is undervalued. He baldly asserts that the property is worth $1,500,000.00. The Plaintiffs on the other hand have tendered two appraisals that establish a value for the property of around $785,000.00. The APS will result in the property being sold for considerably more than that amount.

[67] Second, as a matter of law, the Defendant’s rights to the property were extinguished as a result of the APS. (See Logozzo v. The Toronto-Dominion Bank, (1999) 45 O.R. (3d) 737 (C.A.)). There are good policy reasons for this approach to the rights of the mortgagor, as discussed in Girard, supra. As a result, the Defendant can make a claim in damages if he believes that the property has been sold at a discount.

[68] There is no factual or legal support for the Defendant’s position on this issue, and I reject it.

The Notice of Sale Was Deficient

[69] The Defendant argues that the deficiencies in the Notice of Sale were so egregious as to render it void. I reject this argument for both evidentiary and legal reasons. First, the evidence. In support of this claim, the Defendant deposes that the Notice of Sale is “not in the form required under the Rules of the Court [sic] for a “Sale Action” on a mortgage”. There is no explanation in this Affidavit as to how the Notice of Sale is in an improper form.

[70] In addition, the parties have corresponded over the notice of sale on a number of occasions in the past seven months. Having reviewed that correspondence, I did not see anything that would have explained how the Notice of Sale is in an improper form.

[71] Then, there are the alleged deficiencies in the amounts in the Notice of Sale. Defence counsel points to the decisions in Botiuk v. Collison, (1979) 26 O.R. (2d) 580 (C.A.), Toronto-Dominion Bank v. Pallet Developments Ltd, (1984) 47 O.R. (2d) 251 (H.C.J) and Grenville Goodwin Ltd. v. MacDonald, (1988) 50 R.P.R. 222 (Ont. C.A.) for the proposition that a party exercising a power of sale will be held to strict compliance with the statutory conditions under which the power of sale is exercised.

[72] However, as the Plaintiffs correctly point out, minor irregularities may be excused so long as the notice of sale enables the mortgagor and/or subsequent encumbrancers to intelligently assess their position with respect to the redemption of the mortgage (see Grenville Goodwin Ltd. v. MacDonald, (1988) 65 O.R. (2d) 381 (C.A.)).

[73] In this case, the Defendants have not shown any specific problems with the Notice of Sale, and the issues described in paragraph 13 appear to have been addressed in Mr. Grechi’s correspondence. Certainly, on the hearing of the motion there were no ongoing issues with these amounts that were described in any meaningful way.

[74] Further, on my review of the Notice of Sale, there may have been issues in respect of the amounts charged for various administrative services (see the discussion in C.M.T. Financial Corporation v. McGee, 2015 ONSC 3595 at para 52 and following). However, those amounts are not significant in light of the value of the mortgage and other amounts owing, and would not have affected the ability of the Defendant to intelligently assess his position with respect to his rights. Therefore, I reject his argument respecting the deficiencies in the Notice of Sale.

[75] I should not be taken as providing any final conclusion on whether any of the amounts charged for administrative services are in any way inappropriate. That is a matter to be determined in the action if it continues.

Inability to Refinance the Property

[76] There may be some minor amounts in the Notice of Sale that are incorrect or not properly claimed by the Plaintiffs. The Defendant claims that these alleged deficiencies prevented him from being able to refinance the property. I reject this assertion for three reasons, as follows:

a) There is no evidence in the Defendant’s filings that would, in any way, support this argument. The one potential lender who backed out of the transaction in January did not explain why they were backing out. b) The Plaintiffs were prepared to provide financing for a limited amount of excess if the Defendant could not find financing for the whole amount. c) Given the fact that there was a first mortgage along with property tax arrears of over $100,000.00, there was very limited equity left in this property at the time that the financing was being sought if the appraisals provided by the Plaintiffs are to be accepted.

[77] In other words, even if there were errors in the Notice of Sale, there is nothing on the record before me to link those errors to a failure on the part of the Defendant to find financing. Again, I reject the Defendant’s argument on this point.

Allegations of High Handed Conduct

[78] Counsel for the Defendant argues that the lack of a writ of possession by the Plaintiffs is an indication of high handed conduct, and grounds for considering an injunction. I reject that argument for two reasons. First, as a question of law, section 9 of the standard charge terms (which are part of this mortgage) state that on 35 days notice in writing, the lender may enter onto and sell the land.

[79] In addition, section 7(a)(iv) of the Mortgages Act includes an implied covenant that “on default, the mortgagee shall have quiet possession of the land free from all encumbrances.” As a result, as a question of law, once the Notice of Sale was served and the 35 days passed, the Plaintiffs had the right to enter onto the land, maintain it and sell it, particularly since no one was living on the property.

[80] The Defendant also argues that the Plaintiffs have been acting in a high-handed or malicious manner. Defendant’s counsel relies on the Supreme Court of Canada’s decision in Bhasin v. Hrynew, [2014] 3 S.C.R. 494 for the proposition that contracting parties must perform their contractual duties honestly and reasonably.

[81] The factual summary I have provided above makes it clear that the Plaintiff has not been acting either maliciously or in a high-handed manner. Indeed, on the record before me, the Plaintiffs have been acting in a manner that is more than fair and reasonable.

[82] In support of that conclusion, I note the following points:

a) The Notice of Sale expired at the beginning of September, 2019. The property could have been sold at any time after that point, but the Plaintiffs gave the Defendant more than six months to find financing. b) The Plaintiffs were prepared to assist the Defendant in financing the property by assuming a small mortgage for any excess that he could not finance. c) The Plaintiffs gave the Defendant ample notice of the steps that they were taking in order to ready the property for sale.

[83] There is no merit to the Defendant’s argument on this point either, and I reject it.

Conclusions on Balance of Convenience

[84] As can be seen from the foregoing analysis, I am not persuaded that there are any real reasons to grant the injunction that the Defendant is seeking. However, I can go further than that. On these facts, the balance of convenience clearly favours the Plaintiffs for two reasons.

[85] First, the Plaintiffs have an offer that will allow all of the debts on the property to be cleared. This offer is nearly $100,000.00 higher than the appraised value of the property. The Plaintiffs have a right to protect their investment by selling the property if it cannot be refinanced.

[86] Second, the Plaintiffs are right to point out that this offer may not be replicated and, even if it is, it might take many months before the Plaintiffs are able to sell the property. In the meantime, the Plaintiffs would have the carrying costs of the property (such as property taxes) and other expenses to incur.

[87] When all of these factors are considered, the balance of convenience clearly favours the Plaintiffs in this case, and an injunction preventing the sale of the property should not be granted.

Conclusion and Costs

[88] For the foregoing reasons, the motion for injunctive relief is denied, and the sale may proceed. I provided the parties with an order to that effect at the conclusion of the conference call, and I am reaffirming that Order for the parties.

[89] In addition, I am making the following Orders:

a) Any motion being brought by the Defendant to set aside the Noting in Default must not be brought until after the Courts resume normal operation. b) My decision does not address any of the underlying issues relating to whether the action should be dismissed as alleged by the Defendant in his motion materials, or whether the Plaintiffs wrongfully disposed of the Defendant’s chattels. c) In my endorsement of March 31st, 2020, I stated that no further filings may be made with the Court for any urgent matters relating to this file without my consent. I confirm that this Order remains in force until the Courts resume regular operations.

[90] Finally, there is the subject of costs. The Plaintiffs have fourteen (14) calendar days from the release of these reasons to provide their cost submissions, which are not to exceed two (2) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.

[91] The Defendant will have a further fourteen (14) calendar days to provide their cost submissions, which are not to exceed two (2) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.

[92] There shall be no reply submissions on costs without my leave.

[93] The costs submissions are to be delivered by e-mail to my judicial assistant and are to be served on the other party only by e-mail. Both counsel are to undertake to deliver a hard copy of their costs submissions to the Court once the Court resumes regular operations. If either party has any issues in meeting the costs submissions deadlines, they may contact my judicial assistant. Counsel are reminded to copy all e-mails to my judicial assistant to the other party.

Released: April 14, 2020 Lemay J.