Court File and Parties

Court File No.: CV-22-00691860 Date: 20230227 Superior Court of Justice - Ontario

Re: THE BANK OF NOVA SCOTIA, Plaintiff And: ANNA GRAZYNA NIEMIRA and FRED RANKEL, Defendants

Before: Justice Papageorgiou

Counsel: James Butson for the Plaintiff The Defendant in person

Heard: February 27, 2023

Endorsement

[1] The Applicant The Bank of Nova Scotia (“BNS”) brings an Application to reinstate a charge/mortgage on title to lands (the “BNS Charge”) more particularly described as Unit 421, 111, St. Clair Avenue West, Toronto, M4V 1N5 (the “Subject Lands”).

[2] The Respondents, Anna Grazyna Niemira (“Ms. Niemira”) and Fred Rankel (“Mr. Rankel”) were duly served but did not file any materials in response.

[3] Ms. Niemira did attend and provided oral submissions.

[4] Ms. Niemira is the owner of the Subject Land.

[5] BNS had a previously registered charge on the Subject Lands (the “BNS Charge”) which Charge was registered on December 23, 2020.

[6] Mr. Rankel was previously a second mortgagee pursuant to a mortgage in the amount of $50,000 in favour of Fred Rankel registered on March 3, 2021. There were two notices registered by Rankel, one on October 21, 2021 and one on March 9, 2022 which have the effect of increasing the principal advanced by him to $100,000. The Rankel Mortgages were registered when the BNS Charge was already on title.

[7] In or around September 2022, BNS and Niemira were working on refinancing the Subject Lands. The negotiation did not complete but BNS erroneously gave instructions to First Canadian Title Company Limited to discharge the BNS Charge.

[8] Ms. Niemira’s oral submissions did not seek to challenge the fact that BNS had a mortgage, that funds in the approximate amount of $600,000 remain outstanding and that BNS mistakenly discharged the mortgage. Her main concern is that BNS had charged her an increased interest rate based upon the new mortgage which was not completed for some period of time. This is not a defence to BNS seeking to reinstate the mortgage which it mistakenly discharged.

[9] BNS claims an interest in the Subject Lands and has registered cautions in respect the Subject Lands and seeks rectification of the parcel register pursuant to sections 159 and 160 of the Land Titles Act, R.S.O. 1990, c. L.5. There are no executions registered against the Subject Lands.

[10] Pursuant to section 159 of the Land Titles Act, subject to any estates or rights acquired by registration under the Act, where a court of competent jurisdiction has decided that a person is entitled to an estate, right or interest in or to registered land or charge and as a consequence of the decision the court is of opinion that a rectification of the register is required, the court may make an order directing the register to be rectified in such manner as is considered just.

[11] Pursuant to section 160 of the Land Titles Act, subject to any estates or rights acquired by registration under this Act, if a person is aggrieved by an entry made, or by the omission of an entry from the register, or if default is made or unnecessary delay takes place in making an entry in the register, the person aggrieved by the entry, omission, default or delay may apply to the court for an order that the register be rectified, and the court may either refuse the application with or without costs to be paid by the applicant or may, if satisfied of the justice of the case, make an order for the rectification of the register.

[12] As well, the Court has an equitable jurisdiction to remedy the discharge of the BNS Charge, which was in error. In Central Guaranty Trust Co. v. Dixdale Mortgage Investment Corp., the Court concluded that it is not unjust for a party to acquire a priority where an error occurs in the registration or discharge of documents on title that does not create prejudice. Equity in such circumstances will treat the title as if the error had not occurred. In that case, the proceeds of sale from Dixdale’s power of sale proceeding were ordered paid first to Central Guaranty, even though the mortgage was no longer registered on title.

[13] The Court further directed that a party’s actions and negligence in discharging its own mortgage in error should not preclude it from correcting the error and restoring its priority where there is no juristic reason for the party being enriched by the discharge gaining a windfall.

[14] I am satisfied it would be unjust for BNS to lose its priority due to an error which has caused no prejudice. Therefore based upon sections 159 and 160 of the Land Titles Act, as well as the Court’s inherent equitable jurisdiction as set out in Central Guaranty Trust Company, a Judgment will go in the terms requested.

[15] I add that counsel for BNS has agreed to arrange for a bank representative to review Ms. Niemira’s reconciliation of amounts which she says she have been improperly charged.

[16] BNS did not seek any costs of this Application.

Justice Papageorgiou Date: February 27, 2023