Court of Appeal for Ontario

Citation: Canada Trust Company v. de Lima, 2009 ONCA 508

Date: 20090623

Docket: C49576

Before: Cronk, Gillese and Armstrong JJ.A.

Between:

The Canada Trust Company

Plaintiff (Respondent)

and

Christine Ann de Lima and Bryan de Lima

Defendants (Appellants)

Counsel:

Christine Ann de Lima and Bryan de Lima, in person

Robert Muir, for the respondent

Heard: June 17, 2009

On appeal from the order of Justice G. M. Miller of the Superior Court of Justice, dated October 6, 2008.

APPEAL BOOK ENDORSEMENT

[1] The appellants claim that the default judgment obtained by the respondent should have been set aside by the motion judge since the respondent failed to adduce evidence that the mortgage at issue matured on September 1, 2008, as the respondent claimed. The appellants further argue that the respondent manipulated the terms of the relevant mortgage, demanded exorbitant payments on account of the tax liability on the property that had been retired by the respondent on the appellants’ behalf , and otherwise acted improperly so as to impede or frustrate the appellants’ sale of their property.

[2] The motion judge considered and rejected all of these claims. She correctly noted that the appellants did not dispute their default on the mortgage, an admission reiterated by the appellants before this court. There was evidence before the motion judge establishing the appellants’ continuing default under the mortgage – for several years – and confirming that the respondent’s calculations of the outstanding mortgage arrears had been corrected to rectify the one mistaken attribution of a payment by the appellants to the realty tax account rather than to the mortgage debt.

[3] Finally, the motion judge found no evidence that the respondent had done anything but “act on its rights as a mortgagee”. This finding, as well, was open to the motion judge on the evidence.

[4] In the circumstances, the appeal is dismissed. The respondent is entitled to its costs of the appeal, fixed in the total amount of $3,000, inclusive of disbursements and G.S.T.