Harris v. Canadian Imperial Bank of Commerce, 2007 ONCA 547

CITATION: Harris v. Canadian Imperial Bank of Commerce, 2007 ONCA 547

DATE: 20070727

DOCKET: C46683

COURT OF APPEAL FOR ONTARIO

LASKIN, MACFARLAND JJ.A. and BENOTTO J. (ad hoc)

BETWEEN:

WILLIAM HARVEY HARRIS

Appellant

and

CANADIAN IMPERIAL BANK OF COMMERCE

Respondent

William Harvey Harris, In person

Mark Hartman for the respondent

Heard and released orally: July 19, 2007

On appeal from the judgment of Justice John R. Sproat of the Superior Court of Justice dated January 3, 2007.

ENDORSEMENT

[1] The appellant seeks to set aside the judgment of Sproat J. in which he held that the appellant pay the respondent the sum of $21,907.94 inclusive of interest to January 3, 2007. The debt arose as the result of a mortgage which went into default in October 2003.

[2] At this time the appellant had moved to the U.S.A. and the property had been abandoned. The bank was aware he had moved and sent all correspondence to the appellant at his U.S. address. The Notice of Sale, however, was sent by registered mail to the mortgaged property in Geraldton, Ontario.

[3] The appellant says he was not properly served, because the Notice of Sale was sent to the mortgaged property although he was at the time, to the bank’s knowledge, living in U.S.A.

[4] In our view, service was in accordance with the Mortgages Act. We would observe however, that we agree with the motion judge that it would have made sense for CIBC to have copied the Notice of Sale to Mr. Harris at his United States address. However, the appellant was well aware that he was in default. He had received correspondence from the respondent pointing out the fact that the mortgage was in arrears. He wrote to the bank and asked the bank to sell the property on his behalf. He made no effort to pay the arrears. The appellant relies on a decision of this court in CIBC Mortgage Corporation v. Chopra (1997), 35 O.R. (3d) 362. In our view that case has no application here. There is no suggestion the bank was deliberately trying to avoid providing notice to the appellant. In our view service in the circumstances was proper.

[5] Sproat J. carefully reviewed the evidence, including the expert evidence, in relation to the value of the property and concluded there “was no triable issue with respect to the question whether this was a provident sale”. In our view the record below supports his conclusion and we see no error.

[6] The appeal is dismissed.

[7] Costs to the respondent on a substantial indemnity scale in accordance with the terms of the mortgage fixed in the sum of $7,409.90 inclusive of disbursements and G.S.T.

Signed: “John Laskin J.A.”

“J. MacFarland J.A.”

“M.L. Benotto J. (ad hoc)