CITATION: Romspen Investment Corporation v. Orvitz, 2010 ONCA 854

DATE: 20101215

DOCKET: C51865

COURT OF APPEAL FOR ONTARIO

Moldaver, Feldman and Simmons JJ.A.

BETWEEN:

Romspen Investment Corporation

Applicant (Respondent in Appeal)

and

2126921 Ontario Inc., Sidney Orvitz, Carlo Maltese and The Portuguese Canadian Credit Union Limited

Respondents (Appellants in Appeal)

Harry Korosis and Peter Nicholson, for the appellants

Valerie Edwards and David Preger, for the respondent

Heard and endorsed: December 10, 2010

On appeal from the judgment of Justice C. A. Tucker of the Superior Court of Justice, dated February 17, 2010.

APPEAL BOOK ENDORSEMENT

[1] We are satisfied that the application judge’s finding that the appellants had actual notice of the intended priority of the Romspen mortgage necessarily included a finding that the Romspen mortgage was an equitable mortgage in respect of the parking lot. That being so, contrary to the analysis in Holborne Property v. Romspen (2008), 77 R.P.R. (4th) 262, the application judge was correct in holding that s. 93(3) of the Land Titles Act did not preclude Romspen’s equitable mortgage from having priority over the appellants’ registered mortgage. (See United Trust v. Dominion Stores et al., 1976 CanLII 33 (SCC), [1977] 2 S.C.R. 915 at pp. 956 and 957). To that extent, the appeal must fail.

[2] With respect to the formal order, until such time as it was registered, it could only give priority to Romspen over the appellants’ charge and not any subsequent encumbrancers had there been any.

[3] Accordingly, the order is amended nunc pro tunc to give effect to this.

[4] Further, the leave granted to exercise this power of sale without notice is subject to the following proviso, namely: notice must be given to any subsequent encumbrancers who exist on the day the power of sale is exercised.

[5] In light of our conclusion with respect to s. 93(3), we make no comment on the application judge’s analysis of unjust enrichment.

[6] Costs to the respondent fixed at $12,000 inclusive of disbursements and applicable taxes.