CITATION: AWL Construction Ltd. v. Moore, 2007 ONCA 563

DATE: 20070816

DOCKET: C43082

COURT OF APPEAL FOR ONTARIO

ROSENBERG, ARMSTRONG and JURIANSZ JJ.A.

BETWEEN:

AWL CONSTRUCTION LTD.

Plaintiff (Appellant by Cross-Appeal)

and

GEORGE CONRAD MOORE and MILLICENT BERNARD

Defendants (Respondents by Cross-Appeal)

Timothy J. Law and A. Mazotta for the Appellant by Cross-Appeal

Granville N. Cadogan for the Respondents by Cross-Appeal

Heard and endorsed August 15, 2007

On appeal from the judgment of Justice Mary Anne Sanderson of the Superior Court of Justice dated January 6, 2005.

APPEAL BOOK ENDORSEMENT

[1] The mortgagee was entitled in law to interest as called for in the mortgage. The fact that the mortgagee was prepared to accept a lesser amount because of the position taken by its principal did not provide a basis for the order made by the trial judge. The mortgagee was entitled to bring this action within the limitation period and the fact that the mortgagee did not move as promptly as it might have did not provide a basis to depart from the interest rate called for by the mortgagee or the lesser amount the mortgagee was prepared to accept.

[2] Accordingly, the cross-appeal is allowed and the mortgagee shall have interest from March 23, 1991 at 1.5 percent over the Chartered Bank Administered one-year conventional mortgage rate.

[3] The trial judge refused to give the mortgagee its costs because success was divided. In light of our disposition of the interest rate issue, success is no longer divided and moreover the judgment exceeds the offer to settle. Accordingly, leave to appeal costs is granted, the appeal as to costs is allowed and costs of the trial fixed at $15,000 inclusive of G.S.T. and disbursements payable to the mortgagee.

[4] The mortgagee shall have its costs of the appeal fixed at $7,500 inclusive of GST and disbursements.