DATE: 20050923

DOCKET: C42048

COURT OF APPEAL FOR ONTARIO

RE:

IN THE MATTER OF SIMCOE CORPORATION NO. 27 AND AN APPLICATION UNDER THE CONDOMINIUM ACT AND MORTGAGES ACT

CITIFINANCIAL MORTGAGE CORPORATION (Plaintiff) – and – SIMCOE CONDOMINIUM CORPORATION NO. 27, 662480 ONTARIO LTD. LUCY CIANCIULLI, KENNETH COWAN, KEN JAMES, JAMES AND ASSOCIATES, KINGSTON HOLDINGS LTD. AND MARSHALL POLLACK (Defendants/Appellants) – AND BETWEEN – SIMCOE CONDOMINIUM CORPORATION NO. 27, 662480 ONTARIO LTD., LUCY CIANCIULLI and KENNETH COWAN (Plaintiffs by Counterclaim/Appellants) – and – CITIFINANCIAL MORTGAGE CORPORATION and 1450996 ONTARIO INC. and CHRIS TOMKINSON (Defendants by Counterclaim/Respondents)

BEFORE:

McMURTRY C.J.O., SIMMONS AND MacFARLAND JJ.A.

COUNSEL:

David Bleiwas

For the appellant

Kevin Sherkin

For the respondent Citifinancial Mortgage

Ray Stancer

for the respondent Chris Tomkinson and 1450996 Ontario Inc.

HEARD & ENDORSED:

September 22, 2005

On appeal from the order of Justice J. R. McIsaac of the Superior Court of Justice at Newmarket dated June 15, 2004.

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

[1] We find no error in the reasons and conclusions of McIsaac J in holding that the discharge of the appellants’ liens provides a complete answer to the appellants’ claim against the subsequent purchases for the arrears of common expenses accumulated during the occupancy of Citifinancial, the mortgagee in possession.

[2] The respondents agree that the intent of the motions judge’s judgment was to dismiss paragraph 19(a) and 20(a) only of the appellants’ Statement of Defence and amended counter-claim. We would amend the judgment accordingly.

[3] The appeal is otherwise dismissed. The respondents are each entitled to their costs fixed in the amount of $2,500 for Citifinancial and $3,500 for the respondent, Tomkinson et al.