DATE: 20050624

DOCKET: C41930

COURT OF APPEAL FOR ONTARIO

RE:

CANADA TRUSTCO MORTGAGE COMPANY (Applicant/Respondent) – and – STEVEN GRZENDA, JEANNE GRZENDA, STEVE GRZENDA and SYLVIA BARON (Respondents/Appellant/Respondent in appeal)

BEFORE:

BORINS, FELDMAN and ROULEAU JJ.A.

COUNSEL:

George Limberis

for the appellant

Ian A. Brisbin

for the respondent, Sylvia Baron

HEARD & ENDORSED:

June 22, 2005

On appeal from the judgment of Justice P. B. Hambly of the Superior Court of Justice dated May 10, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The application judge failed to address the application of s. 93(4) of The Land Titles Act to the post‑assignment advances alleged to have been made under the assigned charge. The issue of actual notice under s. 93(4) was not determined by the application judge and, in any event, requires the trial of an issue. The issues are (a) whether the $37,000 was an advance under the assigned charge, and, if so, (b) whether the advances were made with actual notice within the meaning s. 93(4) and by virtue of that section take priority over the charge of Sylvia Baron. This order is made without prejudice to either party returning the application on the basis of further evidence rather than proceeding with the trial of an issue. Any decision to return the motion is to be made with 30 days of this order. Costs of the appeal fixed at $5,000 shall abide the result of further proceedings. If the appellant is the successful party, he shall receive additional costs fixed at $1,500. Costs include disbursements and GST.