Resolute Land Bank Ltd. v. Sieber, 2011 ONCA 459

CITATION: Resolute Land Bank Ltd. v. Sieber, 2011 ONCA 459

DATE: 20110616

DOCKET: C53049, C53050 and C53231

COURT OF APPEAL FOR ONTARIO

Feldman, Blair and LaForme JJ.A.

BETWEEN

Resolute Land Bank Ltd. and Crooks Hollow Farm Corporation

Applicants (Appellants in Appeal)

and

Helmut J. Sieber, Resolute Developments Inc., Canadian Agra Holdings Inc., Bruce Agra Inc., and Canadian Agra Corporation

Respondents (Respondents in Appeal)

AND BETWEEN

Resolute Development Inc.

Plaintiff (Respondent in Appeal)

and

Charles Juravinski, Crooks Hollow Farm Corporation and Resolute Land Bank Ltd.

Defendants (Appellants in Appeal)

James Steven Cimba, for the appellants

Raymond F. Leach, for the respondents

Heard and released orally: June 9, 2011

On appeal from the decision of Justice Leonard Ricchetti of the Superior Court of Justice dated November 9, 2010.

ENDORSEMENT

[1] The appellants seek to set aside two aspects of the order of Ricchetti J. wherein he granted possession of the mortgaged property. Before Ricchetti J., the appellants did not seek to proceed with the application for a declaration of the amount due, nor did they raise the issue of the disposition of the share of Resolute Land Bank that was transferred to the appellants as part of the mortgage loan transaction. Counsel for the respondent fairly concedes that both these issues were not put before the application judge by the appellants, and in respect of the disposition of the share, he concedes that that order cannot stand.

[2] The application judge ordered the parties to file further material on the quantum issue and to return in December 2010 to argue it. The parties complied with the order and had a full hearing wherein the amount owing on the mortgage was determined.

[3] In our view, there is no basis to set aside that aspect of the order. Although the appellants did not ask for that issue to be determined, they made a strategic decision to participate in a full hearing on the issue without objection to the application judge in order to obtain the order for possession. On the appeal, they did not allege any error other than proceeding with the hearing, or any specific error in the quantum. In our view, there is no injustice in the result.

[4] The appeal is allowed in part. Paragraph 98 of the reasons dated November 9, 2010 regarding the disposition of the Resolute Land Bank share (which finding was not part of the order of that date) is set aside. The appeal is otherwise dismissed. As success was divided, there will be no costs of the appeal.

Signed: "K. Feldman J.A."

"R. A. Blair J.A."

"H. S. LaForme J.A."