DATE: 20040806
DOCKETS: M30550 and M31008 and M30594
COURT OF APPEAL FOR ONTARIO
RE: NDEM BELENDE (Defendant/Appellant and Moving Party) – and –
ALLAN GREENSPOON and BELLE LASMAN (Plaintiffs/
Responding Parties)
BEFORE: LABROSSE and CHARRON JJ.A. and ROULEAU J. (ad hoc)
COUNSEL: Ndem Belende
the defendant
(appellant and moving party)
in person
David A. Brooker
for the plaintiffs
(responding parties)
HEARD: May 6, 2004
On appeal from the order of Justice Rose T. Boyko of the Superior Court of Justice dated August 29, 2003; on motion to review the order of the registrar dated February 26, 2004; and on motion to fix the amount to redeem a mortgage.
E N D O R S E M E N T
[1] The litigation between these parties concerns their respective rights under a mortgage granted by the appellant in favour of the respondents.
[2] The present reasons deal with one appeal and two motions flowing from the mortgagor’s default, which occurred in May 2003. The appeal concerns whether a standard pre-payment penalty of three months’ interest should be included in the amount the mortgagor must pay to redeem the mortgage when the redemption arises as a result of the mortgagee initiating default and sale proceedings. The first of the two motions is a motion to set aside the order of this court’s registrar striking a related appeal for failure to perfect. One of the grounds for this motion is that the registrar who heard the motion to strike was not bilingual despite the fact that the appeal being struck was a bilingual appeal. The second motion brought by the appellant seeks to have this court fix the proper amount to be paid to redeem the mortgage.
background
[3] The appellant defaulted in his payments commencing with the payment due May 20, 2003. On July 30, 2003, the respondents served a Notice of Sale pursuant to s. 26(1) of the Mortgages Act, R.S.O. 1990, c. M40. In the Notice of Sale, the respondents set out the amount due as $288,179.04. This sum consisted of the principal amount of $273,000, the arrears of interest totalling $5,503.28 as well as $7,670.76 in borrowers’ charges and $2,000 as an estimate for costs.
[4] The appellant disputed the amount of arrears and costs said to be owing and brought a motion before Boyko J. seeking to obtain a proper statement of arrears and costs as provided for in s. 22(2) of the Mortgages Act. The appellant also sought an order suspending the enforcement procedures pursuant to s. 22(3) on the basis that the amount claimed to be owing by the respondents was incorrect.
[5] That motion was heard on August 21, 26 and 29, 2003. The motions judge ordered that the action proceed as a bilingual proceeding and fixed the amount that the appellant was required to pay in order to redeem the mortgage. Included in the redemption amount was a pre-payment fee of $5,460, a sum equal to three months’ interest.
[6] Due to procedural errors that arose out of Mr. Belende’s lack of legal counsel, a variety of subsequent proceedings were initiated, most of which were dismissed. In an attempt to weed through the procedural missteps, this court issued an endorsement on June 7, 2004 in which we held that the order of Boyko J. was final and the appeal lay to this court. Of the remaining proceedings, we raise these below as they apply to our reasons.
[7] There are three matters now before us. They are as follows:
Did Boyko J. err in including in her calculations a pre-payment fee of $5,460?
Should the Order of the Registrar, dated Febriuary 26, 2004, dismissing an appeal from an Order of Marchand J. be set aside?
What is the proper amount required to be paid to redeem the mortgage and what should be done with monies that have been paid into court?
Issue 1: The Pre-Payment Fee of $5,460
[8] The issue is whether it was appropriate for the motions judge to include in the redemption amount the three-month interest penalty. Pursuant to our June 7, 2004 endorsement, counsel for the respondents and the appellant filed submissions on this issue. The respondents referred us, inter alia, to s. 17 of the Mortgages Act and to a series of cases said to be relevant to this issue. The record before us is incomplete and the appellant has not satisfied us that Boyko J. was in error. As a result, the appeal of the order of Boyko J. is dismissed.
Issue 2: The February 26, 2004 Order of the Registrar
[9] In December 2003, the respondents moved for summary judgment for possession of the mortgaged property and payment on the mortgage. The judgment was granted on December 18, 2003 by Marchand J. The appellant appealed this judgment to the Court of Appeal, but by February 2004 he had not perfected the appeal. The respondents moved to strike the appeal. This motion was heard by the Deputy Registrar of this court on February 26, 2004. The appellant appeared in person and made his submissions in French. The submissions were translated by an interpreter so that they could be understood by the Registrar.
[10] The Marchand J. judgment bears the same Court File Number as the one before Boyko J. Pursuant to the order of Boyko J., the mortgage action was to be a bilingual proceeding. Bilingual proceedings are governed by s. 126 of the Courts of Justice Act, R.S.O. 1990, c. C43. Section 126(2)(1) provides that:
The hearings that the party specifies shall be presided over by a judge or officer who speaks English and French.
[11] Section 3(1) of Regulation 53/01 adopted pursuant to the Courts of Justice Act provides that if the first document filed by a party to a proceeding is in French, that party is deemed to have specified for purposes of s. 126 that all future hearings in the proceeding be presided over by a judge or officer who speaks English and French.
[12] Section 126(3) of the Courts of Justice Act stipulates that s. 126(2)(1) applies with necessary modifications to appeals. Since the appellant’s Notice of Appeal was filed in French, the appellant is deemed to have specified that all future hearings in the Court of Appeal were to be presided over by a judge or officer who speaks English and French.
[13] When the registrar hears a motion to strike an appeal pursuant to s. 61.13, the proceeding is a “hearing” as that term is understood in s. 126 and the registrar hearing that motion is “an officer” for purposes of that section.
[14] In the present case, the registrar who heard the motion did not speak English and French and, as a result, there was a breach of s. 126.
[15] Where, as in the present case, the appellant has met the procedural requirements to trigger a right to a bilingual hearing this right is more than purely procedural, it is substantive and the appropriate remedy is to set aside the order: see R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768.
[16] However, because the appellant has redeemed the mortgage and the property has been returned to him, the appeal from the judgement of Marchand J. is now moot. Therefore, nothing would be gained by setting aside the registrar’s order. For these reasons, the motion is dismissed.
Issue 3: The Proper Amount to be Paid to Redeem the Mortgage
[17] This court is not a court of first instance charged with fixing the amount to be paid to redeem the mortgage. Further, this amount has been determined by the order of Rivard J. rendered in a motion brought subsequent to the Boyko J. and Marchand J. orders. The Rivard J. order provides for a final accounting by the master and that process will lead to the determination of the proper redemption amount. It is not for this court to revisit this issue. The motion is dismissed.
COSTS
[18] The respondents are entitled to their costs in the amount of $4,000.00, inclusive of disbursements and G.S.T.