DATE: 20010531

DOCKET: C35152

COURT OF APPEAL FOR ONTARIO

RE: 1306183 ONTARIO LIMITED (Applicant/Respondent in Appeal)

v. CATALICE PROPERTIES INC. (Respondent/Appellant)

BEFORE: AUSTIN, ROSENBERG and GOUDGE JJ.A.

COUNSEL: Brian Illion, for the appellant

Fernando Souza, for the respondent

HEARD: May 30, 2001

On appeal from the judgment of Justice Bonnie L. Croll dated September 14, 2000

E N D O R S E M E N T

[1] As of July 31, 1999, when the respondent sought to prepay the mortgage in accordance with its terms, the appellant had full particulars of the sale and had just exercised its option to require payment of the mortgage under clause 14. The respondent was not in default of either clause 21 or clause 14 of the Standard Charge Terms and was entitled to pay the whole of the principal and interest owing to July 31, 1999 without notice or bonus. The appellant was therefore wrong to insist upon payment of principal and interest and the amount provided for in s. 17 of the Mortgages Act, R.S.O. 1990, c. M-40.

[2] Nevertheless, this did not relieve the respondent of the obligation to make proper tender of the principal and interest: Middleton v. Scott (1902), 4 O.L.R. 459 (Div. Ct.). Interest therefore continued to run until September 10, 1999.

[3] Accordingly, we would allow the appeal in part and vary the judgment of Croll J. to provide that the respondent on appeal shall pay to the appellant the amount of $8,985.97, representing the additional interest on the mortgage from July 31, 1999 to September 10, 1999. The appeal is otherwise dismissed.

[4] As success on the appeal was divided, there will be no order for costs. We would not interfere with the costs order made by Croll J.

(signed) “Austin J.A.”

(signed) “M. Rosenberg J.A.”

(signed) “S. T. Goudge J.A.”