Bank of Montreal v. Silvera, 2010 ONCA 454

Citation: Bank of Montreal v. Silvera, 2010 ONCA 454

Date: 2010-06-17

Docket: C51923

Court of Appeal for Ontario

Before: Doherty, Cronk and Watt J.A.

Between:

Bank of Montreal

Applicant/Respondent

and

Jacqueline Silvera, also known as Jacqueline Griffith, Andrew Silvera, also known as Augustine Silvera, and Rakesh Persaud

Respondents/Appellants

Counsel:

Mari-Jose Beauplan-Mann, for the appellants

Joshua Siegel and Michael Collis, for the respondent

Heard and released orally: June 14, 2010

On appeal from: The judgment of Justice R. G. Thomas of the Superior Court of Justice, dated January 27, 2010.

Endorsement

[1] The appellants sought an adjournment of this appeal due to their recent retainer of new counsel. We declined to grant the adjournment as the date of today's appeal, to the knowledge of the appellants, was fixed by the Associate Chief Justice of Ontario and, further, there was no material filed before us to support the adjournment request. In these circumstances, counsel for the respondent bank quite properly opposed any adjournment of the appeal.

[2] The appeal concerns a mortgage enforcement proceeding brought by the respondent, the mortgagee of residential premises occupied by Mr. and Mrs. Silvera.

[3] The application judge found that the mortgage loan in this case fell into "serious default" as early as 2008 because only two mortgage payments were made that year (in the aggregate amount of $4,115.60) and, further, as the mortgage loan was obtained by the misrepresentation and fraud of Rakesh Persaud. The application judge also found that the amount outstanding on the mortgage loan as of January 27, 2010 was $398,482.78.

[4] Notwithstanding the submission of the appellants' counsel to the contrary, there is no evidence on this record that the appellants have brought or attempted to bring the mortgage into good standing. The respondent maintains that the appellants have failed to do so. Nor is there evidence that the appellants paid or caused the amount of $37,000 to be paid into a bank mortgage account in their favour. The application judge found:

The total amount paid by Jacqueline and Andrew Silvera on account of this mortgage pales dramatically to the total amount owing under the mortgage. There was no evidence produced on this application that Jacqueline and/or Andrew Silvera made any significant attempts to put the mortgage in good standing or to devise a plan to do so over a period of time during the some 26 months they have resided as occupants in the premises after the property was sold to Persaud.

[5] The sole ground of appeal advanced by the appellants is the assertion that the application judge erred by permitting the respondent to proceed by way of application rather than action.

[6] This argument is unsustainable for two reasons. First, rule 14.05(3)(e) authorizes proceedings by way of application where the relief claimed is a declaration of an interest in, or charge on, land. This was the relief obtained by the respondent as against Mr. and Mrs. Silvera. Second, it appears that the appellants' attack on the mortgage enforcement procedure used by the respondent is advanced for the first time on appeal. There is no indication in the application judge's reasons that this argument was raised before him.

[7] Finally, we note that the issues raised by the appellants concerning the respondent's alleged failure to make proper disclosure of all relevant documents and to account for funds allegedly received from the Silveras, which allegations the respondent strenuously disputes, are irrelevant to the respondent's procedural right to commence its enforcement proceeding by way of application under rule 14.05(3).

[8] For all these reasons, the appeal is dismissed. The respondent is entitled to its costs of the appeal, fixed in the total amount of $6,500, inclusive of disbursements and GST.

"Doherty J.A."

"E. A. Cronk J.A."

"David Watt J.A."