Court File and Parties

Citation: Bank of Montreal v. Silvera, 2009 ONCA 405 Date: 2009-05-14 Docket: C50007

Court of Appeal for Ontario Moldaver, Simmons and Cronk JJ.A.

Between: Bank of Montreal (Applicant/Respondent) and Jacqueline Silvera, also known as Jacqueline Griffith, and Andrew Silvera, also known as Augustine Silvera (Respondents/Appellants)

Counsel: Charles Amissah-Ocran, for the appellants Joshua Siegel, for the respondent

Heard and released orally: May 11, 2009

On appeal from the order of Justice Peter Daley of the Superior Court of Justice dated January 13, 2009.

Endorsement

[1] By amended notice of application dated November 4, 2008, the respondent Bank of Montreal (the "Bank") sought declarations that it was entitled to immediate vacant possession of certain mortgaged residential premises, together with a writ of possession with respect to the mortgaged premises.

[2] The application judge held that the appellants were in possession of the premises as occupants only, rather than as tenants as they claimed. To the extent that the application judge found that the appellants were not tenants of the premises, this finding was amply supported by the appellants' own evidence filed on the application and we see no basis to interfere with it. Indeed, based on the documents produced by the appellants, the application judge went on to hold that the appellant Mrs. Silvera remained the beneficial owner of the property.

[3] The application judge further held that the Bank was entitled to vacant possession of the premises and granted the Bank a writ of possession concerning the premises. With respect, on the record before him, it was not open to the application judge to grant this relief. In the particular circumstances of this case, in which the Bank relies on its superior rights under the mortgage if the appellants are mere occupants and also disputes the appellants' entitlement to place the mortgage into good standing if Mrs. Silvera is the beneficial owner of the property, the Bank's amended notice of application was deficient in two material respects:

(1) the Bank failed to join the person named as mortgagor in the mortgage (Rakesh Persaud) as a party respondent to the application; and

(2) the documentary evidence necessary to establish that the Bank in fact was entitled to possession of the premises under the terms of the mortgage in the circumstances of this case was not fully before the application judge.

[4] In these circumstances, the application judge's order, which addresses only the Bank's right to vacant possession and to a writ of possession concerning the premises, cannot stand.

[5] The appeal is allowed and the application judge's order is set aside, without prejudice to the Bank's right to pursue such remedies against the appellants and Mr. Persaud as the Bank may be advised in the circumstances.

[6] In our view, this is not an appropriate case for an award of costs of the appeal.

"M.J. Moldaver J.A." "Janet Simmons J.A." "E.A. Cronk J.A."