Court of Appeal for Ontario

CITATION: Schifano v. Josnic Limited, 2010 ONCA 815

DATE: 20101203

DOCKET: C52571

Rosenberg, Gillese and Lang JJ.A.

BETWEEN

Vincenzo Salvatore Schifano

Applicant

and

Josnic Limited, Ronald Crisp, and Ruth Crisp

Respondent

Vince Schifano, acting in person

Domenic Severino, for the respondents

Heard: December 1, 2010

On appeal from the judgment of Justice David G. Stinson of the Superior Court of Justice dated July 15, 2010.

ENDORSEMENT

[1] The respondents brought a motion for summary judgment in a mortgage action. They were successful and by judgment dated July 15, 2010, (the Judgment) the appellant was ordered to pay $82,245.53 representing the mortgage debt, condominium fees and interest. The appellant was also ordered to give up possession of the mortgaged property. The writ of possession was stayed until August 31, 2010.

[2] The appellant has a number of mental health disorders. He appeals, asking that the Judgment be set aside. In his written submissions, he notes that he was unrepresented at the court appearances below and that his mental health issues led to his answers in court being inconsistent. In oral submissions, he pursued two primary arguments. First, he says that he paid all condominium maintenance fees as they came due and that the respondents acted wrongly in discharging a lien registered against the property for condominium maintenance fees, common expenses and legal costs owed by the appellant to the condominium corporation. Second, he argues that the respondents erred by failing to give him appropriate notice that the mortgage would not be renewed.

[3] We would not give effect to any of the grounds of appeal.

[4] The record demonstrates that throughout the proceedings, including those in this court, the courts have been aware of the challenges that the appellant faces and have taken steps to accommodate him. Adjournments have been regularly granted: see, for example, the order of Allen J. dated May 13, 2010, adjourning the motion to July 15, 2010. See, also, the order of Simmons J.A. granting a stay of enforcement of the writ of possession dated October 17, 2010 and the adjournments ordered by panels of this court on October 20, 2010, and November 19, 2010.

[5] The motion judge made no error in granting summary judgment. The record supports his conclusion that the respondents had proved the mortgage, the default and the sums paid to discharge the lien on behalf of the appellant borrower. The motion judge carefully considered the appellant’s arguments that he had paid certain fees. He accepted that submission, in part, and allowed for those sums in establishing the monetary sum of the Judgment.

[6] As for the submission that the respondents acted wrongly in discharging the lien, we note that the condominium corporation registered a lien against the property on November 24, 2008, for arrears of common expense payments. The record shows that the respondents paid the condominium corporation the necessary sum to satisfy the debt and the lien was discharged on November 23, 2009.

[7] In relation to the appellant’s argument that he had no notice that the mortgage would not be renewed, we begin by noting that the mortgage had matured many months prior to the events surrounding the lien. As a result of the appellant’s default leading to the lien, if nothing else, the mortgage became immediately enforceable. Notice of the respondents intention to demand payment was made through the Statement of Claim in this proceeding, if not before.

[8] Accordingly, the appeal is dismissed. In light of all of the circumstances, enforcement of the writ of possession is stayed until January 5, 2011. Costs of the appeal are awarded to the respondents, fixed in the sum of $1,000, all inclusive.

“M. Rosenberg J.A.”

“E. E. Gillese J.A.”

“S. Lang J.A.”