Court of Appeal for Ontario

Citation: 7825722 Canada Inc. v. Sutherland, 2014 ONCA 281

Date: 2014-04-10

Docket: C58001

Before: Feldman, Rouleau and Hourigan JJ.A.

Between

7825722 Canada Inc.

Plaintiff (Respondent)

and

Marjorie Sutherland, a.k.a. Marjorie Clair Sutherland

Defendant (Appellant)

Counsel:

Bruce D. Marks, for the appellant

Kaushik Parameswaran, for the respondent

Heard: April 4, 2014

On appeal from the order of Justice Robert Scott of the Superior Court of Justice, dated September 20, 2013.

APPEAL BOOK ENDORSEMENT

[1] The appellant seeks to set aside the order of Scott J. which refused to set aside default judgment on the mortgage and promissory note. In our view the motion judge did not err in concluding that there was no defence to the enforcement of the mortgage in default, subject to the $5,000 default fee. In our view the applicability of that fee is unclear and should be determined by reference to a Master in Ottawa.

[2] On the issue of the promissory note and the fees associated with it, in our view there is some issue with regard to the merits of its full enforceability. We would therefore set aside the default judgment on the promissory note and order that the respondent may pursue that claim in the Small Claims Court in Ottawa, as it originally did.

[3] In light of the appellant’s efforts to obtain refinancing and the substantial reduction in the amount of the judgment, and in order to give the appellant the further opportunity to refinance, the respondent may register an amended judgment forthwith, but take no other steps to enforce the judgment for one month from this date.

[4] To reflect the appellant’s partial success on the appeal, partial costs to the appellant fixed at $5,000 inclusive. To be clear, no amount to be charged on the mortgage as costs of this appeal.