COURT OF APPEAL FOR ONTARIO
CITATION: Reichert v. Stanbarr Services Limited, 2013 ONCA 602
DATE: 20131002
DOCKET: C57013
Gillese, Juriansz and Strathy JJ.A.
BETWEEN
Hans Jorg Reichert and Marianne Reichert
Defendants (Appellants)
and
Stanbarr Services Limited, Kempston Grove Corp., 617695 Ontario Inc. and Eddy Goldberg
Plaintiffs (Respondents)
Hans Jorg Reichert and Marianne Reichert, appellants appearing in person
Martin Greenglass, for the respondents
Heard: September 27, 2013
On appeal from the judgment of Justice Thomas A. Bielby of the Superior Court of Justice, dated April 18, 2013.
ENDORSEMENT
[1] The second mortgagee in this mortgage action brought a motion for summary judgment, in which it sought possession of the mortgaged premises municipally described as 13610 11th Concession, Schomberg, Ontario L0G 1To (the “Property”).
[2] The defendants were self-represented both at the motion below and before this court. They acknowledged that the mortgage was valid and that they were in default. However, they denied that they owned the Property, maintaining that since 2001 the Property has been owned by the Jorg Trust.
[3] By order dated April 18, 2013 (the “Order”), Bielby J. granted the motion for summary judgment and, among other things, ordered that possession of the Property go to the second mortgagee. In concluding that the second mortgagee was entitled to possession, the motion judge found that:
the mortgage sued on was valid, and had matured and become due in February of 2012;
the mortgage sued on was in default;
the defendants and their children were not then residing in the Property;
the evidence filed by the defendants did not meet the burden of proof in demonstrating that a trust owned the Property; and,
the thrust of the defendant’s argument was to delay the matter.
THE ISSUES
[4] On appeal, the defendants ask that the Order for possession be set aside. Their arguments can be summarized into essentially two submissions.
[5] First, the defendants contend that the motion judge failed to recognize that the Jorg Trust is the true owner of the Property.
[6] Second, the defendants submit that the motion judge failed to appreciate their concerns that the second mortgagee was not acting in good faith, and that it would sell the Property for too low a price or not to the right person. They ask this court to order that they be present for all inspections done by prospective purchasers and that they be permitted to pre-screen prospective purchasers for their suitability to buy the Property.
[7] At the oral hearing of the appeal, the defendants brought with them a conditional offer for the purchase and sale of the Property (the “Offer”). They made a further request, namely, that no matter how the appeal is decided, that the Offer be declared to be valid and that they are entitled to proceed with in accordance with it.
ANALYSIS
The Jorg Trust Submission
[8] We see no basis for interfering with the motion judge’s determination that the evidence before him was insufficient to establish that the Property was owned by the Jorg Trust.
[9] However, for the purposes of this appeal, the panel will assume that the Jorg Trust is the beneficial owner of the Property. This makes no change to the second mortgagee’s right to possession of the Property. The defendants (appellants) claim to represent the Jorg Trust and they have acknowledged that the mortgage is in default and that they are not residing in the Property.
The Defendants’ Concerns about the Actions of the Second Mortgagee and the Sale of the Property
[10] Concerns over a possible improvident sale are not a legal defence to a claim for possession where there is an admitted mortgage default.
[11] Further, there is no legal basis on which to make the orders sought in relation to prospective purchasers.
[12] Finally, we cannot accede to the defendants’ request in respect of the Offer as that matter is not properly before us. We would note, however, that it is in everyone’s interest that a sale be concluded as soon as possible and that the sale price be a fair one.
DISPOSITION
[13] Accordingly, the appeal is dismissed.
[14] The panel dealt with costs of the appeal and costs of motion M42788 in the associated proceeding, The Jorg Trust v. Stanbarr Services Limited et al., after concluding the hearing on both. In relation to the appeal, costs are ordered in favour of the respondent, fixed at $9,230.85, all inclusive. In relation to the motion, costs are ordered in favour of the moving party, fixed at $3,516.48, all inclusive.
“E.E. Gillese J.A.”
“R.G. Juriansz J.A.”
“G.R. Strathy J.A.”