COURT OF APPEAL FOR ONTARIO
DATE: 20051124
DOCKET: C43227
RE: ALBERT SEWELL (Appellant) –and- GEORGE BOTROS, MOURIS BOTROS, 4188381 CANADA INC. (Respondents)
BEFORE: LABROSSE, ROSENBERG GILLESE JJ.A.
COUNSEL:
Albert Sewell In person
Paul Muirhead for the respondents
HEARD & ENDORSED: November 18, 2005
On appeal from the judgment of Kealey J. of the Superior Court of Justice dated February 7, 2005 made at Ottawa, Ontario.
A P P E A L B O O K E N D O R S E M E N T
[1] We see no error in the order of Morin J. who ordered the payment of the mortgage and security for the costs allegedly incurred by Mr. Sewell in realizing on his security.
[2] Before Kealey J., Mr. Sewell sought costs and expenses in the amount of $71,002.42 incurred in realizing on the security. Kealey J. concluded that there had been no default by the mortgagors because of the missed payment and that no waste had been committed by them. These findings are supported by the record. As there had been no default under the mortgage, the costs incurred by Mr. Sewell are not recoverable.
[3] We received no argument from Mr. Sewell with respect to procedural errors committed by the respondents which deprived him of a proper hearing and that the motions judge and counsel for the respondents demonstrated bias and “racial hatred.” These complaints are not supported by the record.
[4] We also see no error in the order of Juriansz J.A. A certificate of pending litigation is not available to Mr. Sewell as he no longer has an interest in the property.
[5] With respect to the cross-appeal relating to the $5,000 allowed by Kealey J. for expenses necessarily incurred in the July Notice of Sale, we fail to see the basis for this payment in light of the finding that there was no default.
[6] In the results, we dismiss the appeal and allow the cross-appeal by deleting the sum of $5,000 that Kealey J. ordered to be paid to Mr. Sewell. Costs to the respondents fixed at $10,000.00. This order may be taken out without the necessity of Mr. Sewell’s consent or approval.