Court of Appeal for Ontario

CITATION: The Canada Trust Company v. Potomski, 2015 ONCA 324

DATE: 20150508

DOCKET: M45044 (C60375)

Pardu J.A. (In Chambers)

BETWEEN

The Canada Trust Company

Plaintiff (Respondent)

and

Robert Joseph Potomski

Defendant (Moving Party/Appellant)

Robert Joseph Potomski, acting in person

Jeffrey Kukla, for the respondent

Heard: May 4, 2015

ENDORSEMENT

[1] The appellant moves for a stay of enforcement of a writ of possession granted in a mortgage action and for an extension of time to perfect his appeal.

[2] The appellant granted a mortgage to the respondent on January 20, 1992. The mortgaged property is located in Windsor, Ontario. Under the terms of the mortgage agreement, the respondent is entitled to recover its costs associated with the mortgage, such as fees and disbursements incurred in enforcement proceedings, from the appellant.

[3] On April 27, 2011, the appellant entered a mortgage renewal agreement with the respondent. This agreement provided that the “Property Tax Payment amount will be adjusted annually in accordance with our procedures”. These “procedures” permitted the respondent to increase or decrease the monthly Property Tax Payment in order to reimburse the respondent for amounts debited to the “Tax Account” for the appellant’s benefit. The Tax Account is an account on the respondent’s books in relation to the mortgage. Such adjustments would change the quantum of the appellant’s monthly mortgage payments.

[4] The respondent claims the appellant defaulted on the mortgage six times between 2005 and 2008. Following the appellant’s November 2008 default, the respondent issued a notice of sale and eventually obtained an order for summary judgment, including costs on a substantial indemnity basis. Although the respondent did not exercise its power of sale and the mortgage was ultimately renewed, a $13,278.20 deficit was added to the appellant’s Tax Account in July 2011. This was the amount claimed by the respondent for its costs on the summary judgment proceedings. The appellant’s monthly mortgage payments were increased to reflect the $13,278.20 cost award.

[5] The appellant again defaulted on the mortgage on October 17, 2011. The appellant made payments on October 14, 2011 and November 17, 2011, which were applied to outstanding amounts owing for previous missed payments. The appellant did not make any further payments between November 17, 2011 and the motion before Platana J. on September 22, 2014.

[6] In December 2011, after attempting to make a mortgage payment, the appellant was informed that the quantum of his monthly mortgage payment had increased by about 25 per cent. After making multiple inquiries, he was told that his monthly payments had been increased to account for the $13,278.20 deficit in his Tax Account. The appellant claimed he did not know what liability the deficit represented. He continued to make inquiries with the respondent regarding the reason for the increase to his monthly payments and did not pay his monthly mortgage payments. The respondent issued a notice of sale on June 15, 2012. According to the respondent, as of May 21, 2013, the amount owing by the appellant under the mortgage was $51,732.74.

Justice Platana’s Orders

[7] The respondent brought a motion for summary judgment seeking payment in the amount of $51,732.74 plus interest, possession of the mortgaged property, leave to obtain a writ of possession for the property, and post-judgment interest.

[8] The appellant did not dispute that the amount charged to his Tax Account was accurate. However, he argued that he was not required to make his monthly mortgage payments because the respondent did not respond to his repeated inquiries into why the monthly amount had increased and what the deficit in the Tax Account represented.

[9] While Platana J. agreed that the respondent did not “fully and adequately” reply to the appellant’s request for information and that there was a possible “lack of clarity” on the respondent’s website about the function of the Tax Account, he found that this was not a defence to the appellant’s default. The mortgage agreement was clear that costs incurred by the respondent in enforcing the mortgage would be charged to the appellant. Justice Platana also found that there was “clear evidence” the appellant was aware of the $13,278.20 cost award against him and that this had not been paid. Although the amount owed by the appellant for the cost award was added to the Tax Account rather than immediately collected, it did not follow that the appellant was not required to pay this amount to the respondent. Justice Platana found the appellant was in default on the mortgage and granted the respondent’s motion for summary judgment on October 14, 2014.

[10] After reasons on the motion were released, but before the issue of costs was determined, Platana J. received a fax from the appellant. The fax requested that Platana J. stay his decision to allow the appellant time “to file a proper appeal and a stay motion within the appeal process”. In his reasons on costs, Platana J. noted that he had received this fax and held that this was not the appropriate process for obtaining a stay. He declined to grant the appellant’s request on the ground that ordering a stay prior to any appeal being filed would effectively amount to an extension of time to file the appeal. Justice Platana awarded costs to the respondent on the summary judgment motion in the amount of $10,500 plus HST, for fees, and $2,267.90 inclusive for disbursements.

Notice of Appeal to Divisional Court

[11] The appellant filed a notice of appeal, dated November 28, 2014, from the orders of Platana J. in the Divisional Court. In his notice of appeal the appellant sought the following relief: an order extending time to file the appeal; an order that the respondent “give explicit reasons for the increase in mortgage payments of approximately $100.00 per month”; punitive damages in an unspecified amount and permission to “continue his [mortgage] payments at the same amount as they were in November 2011”. The appellant also sought “[c]onfirmation the decisions of Mr. Justice T.A. Platana are automatically stayed.”

[12] The notice of appeal again argued that the “amount requested by the Respondent has not been verified as fact” and that “the Respondent has not put forth the reason why, in December, 2011, the monthly mortgage payments of the Appellant were raised by approximately $100.00.”

Certificate of Stay

[13] The respondent obtained a writ of possession on March 29, 2015.

[14] The registrar of the Divisional Court (South West Region) appears to have issued a certificate of stay of Platana J.’s orders pending appeal. The copy filed by the appellant is dated April 10, 2015. That same day the appellant received an email from the Enforcement Office of the Ministry of the Attorney General informing him that the certificate of stay he filed with the Sheriff’s Office did not comply with rule 63.02(1) of the Rules of Civil Procedure and therefore was not sufficient to stay enforcement. This email also informed the appellant that because a writ of possession is not an order for the payment of money, the automatic stay on delivery of a notice of appeal under rule 63.01 did not apply. The email specifically stated that “[a] stay order must be obtained.”

Order of Gates J.

[15] The appellant brought a motion before the Divisional Court to stay the March 29, 2015 writ of possession. On April 15, 2015, Gates J. granted the stay on the following conditions:

1. The appellant file a notice of appeal of the order of Platana J., dated October 14, 2014, with the Ontario Court of Appeal;

2. The appellant perfect his appeal in the Court of Appeal immediately;

3. The appellant pay the cost order granted by Platana J. immediately (in the amount of $14,132.90);

4. The appellant pay the costs of the motion before Gates J. immediately (in the amount of $4,234.02).

[16] Justice Gates specified that execution of the writ of possession would only be stayed if the appellant fulfilled these obligations by 4:30 p.m. on May 4, 2015.

Motion Before the Court of Appeal

[17] The appellant says he filed a notice of appeal with the Court of Appeal. He brought this motion to stay the orders of Platana J., or alternatively, to stay execution on the writ of possession. He also sought an extension of time to perfect his appeal.

[18] The appellant has not complied with two conditions set out in the order of Gates J. Specifically, he has not perfected his appeal to this court or paid the cost award ordered by Platana J. (in the amount of $14,132.90). He did not seek leave to appeal the order of Gates J.

Applicable Rules of Civil Procedure

[19] Rule 63.01 provides that delivery of a notice of appeal from a final order stays, until disposition of the appeal, any provision of the order for the payment of money.

[20] Rule 63.02(1) provides that a final order may be stayed on such terms as are just by either an order of the court whose decision is to be appealed or by an order of a judge of the court to which a motion for leave to appeal has been made or to which an appeal has been taken.

[21] Rule 63.02(3) provides that a stay granted under subrule (1) may be set aside or varied on such terms as are just by a judge of the court to which an appeal may be or has been taken.

[22] Rule 63.03(1) provides that where an order is stayed, no steps may be taken for its enforcement, except with leave of a judge of the court to which an appeal has been taken.

Test for Staying an Order Pending Appeal

[23] The test for staying an order pending an appeal under rule 63.02 of the Rules is set out by the Supreme Court of Canada in RJR-Macdonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. Under this test the appellant must demonstrate:

1. There is a serious issue to be tried;

2. He will suffer irreparable harm if the stay is not granted; and

3. The balance of convenience favours granting the stay.

[24] In analyzing these factors the overarching question is whether the interests of justice call for a stay: Longley v. Canada (Attorney General), 2007 ONCA 149 [In Chambers], at para. 15.

[25] In my view, the appellant has not demonstrated that a stay is appropriate. He has not identified any error in the reasoning of the summary judgment motion judge. As pointed out by Platana J.:

There are really no facts in dispute. The Defendant has not disputed that any of the charges to the Property Tax Account are inaccurate.

None of the evidence in the Defendant’s affidavits dispute that he has not paid the amounts claimed by the Plaintiff. Further, there is clear evidence that the Defendant was aware of the various costs awards made against him and that these have not been paid.

[26] The appellant has not paid the regular mortgage payments since late in 2011. There is no evidence that he took any steps to perfect his appeal filed in the Divisional Court. Rule 61.09 provides that where no transcript of evidence is required for the appeal, the appeal must be perfected within thirty days after filing the notice of appeal. In the absence of any explanation for the failure to perfect the appeal by December 28, 2014, I infer that the purpose of filing the appeal was to delay enforcement of the judgment. The appellant advises that Justice Gates told him that that appeal was in the wrong court, presumably because the final order of Platana J. is for an amount that exceeds $50,000.

[27] Undoubtedly, enforcement of the writ of possession will be troublesome for the appellant. However, in this case I am not convinced that the balance of convenience or the interests of justice call for a stay of enforcement of the judgment for possession and the writ of possession.

Extension of time to perfect appeal

[28] In determining whether to grant leave to extend the time to perfect an appeal, it is useful to consider the test applicable to extending time to file a notice of appeal: Mauldin v. Cassels Brock & Blackwell LLP, 2011 ONCA 67 [In Chambers], at para. 5; Monteith v. Monteith, 2010 ONCA 78 [In Chambers], at para. 11. The relevant factors are:

1. Whether the appellant had an intention to appeal within the relevant period;

2. The length of the delay and the explanation for the delay;

3. Any prejudice to the respondent;

4. The merits of the appeal; and

5. Whether the "justice of the case" requires granting an extension.

See Rizzi v. Marvos (2007), 2007 ONCA 350, 85 O.R. (3d) 401 (C.A. [In Chambers]), at para. 16; Kefeli v. Centennial College of Applied Arts & Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A. [In Chambers]), at para. 14.

[29] Justice Gates ordered the appellant to perfect his appeal in the Court of Appeal immediately. The appellant did not explain why he has not done so. Thirty days have not yet elapsed from the date of Gates J.’s order, and necessarily from the date (unknown to me) of filing of the notice of appeal in this court. If the appellant wishes to pursue his appeal he may yet perfect it in accordance with the Rules. In view of the circumstances outlined above, including the apparent absence of merit to the appeal, the delay which has already occurred and the absence of any explanation for a failure to perfect, I see no need to make any further order extending the time to perfect the appeal. I do note that while Gates J. made an order directing the appellant to file a notice of appeal in the Court of Appeal well beyond the time limit for doing so set out in the Rules, rule 3.02(3) provides that an order extending a time prescribed by the Rules for an appeal to an appellate court may be made only by a judge of the appellate court.

[30] For these reasons, the motion by the appellant is dismissed. The parties may make brief written submissions regarding the costs of this motion, to be submitted no later than May 20, 2015.

“G. Pardu J.A.”