COURT OF APPEAL FOR ONTARIO

CITATION: Starkman v. Home Trust Company, 2015 ONCA 436

DATE: 20150615

DOCKET: M45188 (C60325)

Brown J.A. (In Chambers)

BETWEEN

Rhonda Michelle Starkman

Moving Party

and

Home Trust Company

Responding Party

Rhonda Michelle Starkman, acting in person

Fredrick R. Schumann, appearing as duty counsel

Amanda Jackson, for the responding party

Heard: June 10 & 12, 2015

Motion seeking a stay of the judgment of Justice Carole Brown of the Superior Court of Justice, dated March 31, 2015, with reasons reported at 2015 ONSC 1718 and supplementary reasons reported at 2015 ONSC 2047.

ENDORSEMENT

Background events

[1] The appellant, Rhonda Starkman, owns a residential property in Toronto on which Home Trust Company holds first and second mortgages. ING assigned the first mortgage to Home Trust in February, 2011. At that time, the first mortgage was in default and ING had issued a notice of sale. The first mortgage matured in April, 2014, and has not been renewed or repaid.

[2] The second mortgage secures an Equity Line Visa Card and is payable on demand. In December, 2010, Home Trust was granted default judgment in respect of the debt due under the second mortgage and, in March 2011, it obtained a writ of possession for the property. It did not act upon the writ at that time.

[3] In June 2011, Ms. Starkman commenced this action against Home Trust seeking an accounting of the amounts due under both mortgages. Ms. Starkman did not challenge the validity of the mortgages held by Home Trust, nor did she dispute that she owed Home Trust significant arrears under both mortgages. Instead, she called into question the accuracy of the calculation of some of the arrears due under the mortgages. Home Trust counter-claimed, seeking possession of the property.

[4] Home Trust moved for partial summary judgment for possession of the property and a declaration of the amounts owing under both mortgages. By judgment dated March 31, 2015 (the "Judgment"), the motion judge granted Home Trust summary judgment, declaring the amounts due under the two mortgages and, in para. 3 of her Judgment, granting Home Trust leave to issue a writ of possession for the property. In her reasons for judgment, the motion judge found that Ms. Starkman had made no payments on either mortgage since February, 2011 and Home Trust had been required to make substantial payments to bring the municipal property taxes into good standing. The motion judge found that on her examination for discovery Ms. Starkman had admitted that, as at August 10, 2010, the amount of $348,575.53 was due and owing under the first mortgage and that, as at June 28, 2011, the amount of $118,207.35 was due and owing under the second mortgage.

[5] Ms. Starkman has appealed the Judgment to this court. Home Trust has obtained a writ of possession for the property and the Sheriff delivered a June 1, 2015, notice to Ms. Starkman requiring her to vacate the property on or before June 15, 2015, failing which the Sheriff would carry out the order.

[6] Ms. Starkman, who is self-represented, moves on an urgent basis for relief which, in effect, amounts to a stay of the execution of the writ of possession pending the hearing of her appeal and the setting aside of the Sheriff's notice to vacate the property. The motion originally came before me on Wednesday, June 10, 2015, at which time I permitted Ms. Starkman to file further materials, and allowed Home Trust to respond to them. In the result, Home Trust did not file further responding materials.

Applicable test

[7] To obtain a stay of judgment pending appeal, Ms. Starkman must satisfy the three-part test set out in RJR-McDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 - i.e. she must demonstrate that (1) there is a serious question to be determined on the appeal; (2) she will suffer irreparable harm if the stay is denied; and, (3) the balance of convenience favours granting a stay. In applying that test, I am guided by the comments of Laskin J.A. in Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 677: "These three criteria are not watertight compartments. The strength of one may compensate for the weakness of another. Generally, the court must decide whether the interests of justice call for a stay."

Serious question to be determined on the appeal

[8] Ms. Starkman submits that her appeal raises two serious questions to be determined in respect of the issuance of a writ of possession: (i) the Sheriff's notice to evict was defective in form, with the result that it is inoperative; and, (ii) the motion judge erred in issuing a writ of possession without satisfying herself that "all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief," as required by rule 60.10(2) of the Rules of Civil Procedure.

[9] Before dealing with that submission, it is necessary to step back and consider the larger context which frames the issue of the serious question to be determined on appeal. As mentioned, on her examination for discovery Ms. Starkman admitted that, as at August, 2010, she owed Home Trust $348,575.53 under the first mortgage and, as at June, 2011, she owed the respondent $118,207.35 under the second mortgage. In light of those admissions, there is no dispute that Ms. Starkman is seriously in default of her obligations under both mortgages. Her dispute with Home Trust centres on the accuracy of certain adjustments to the total amount due under both mortgages. Accordingly, while I accept, for the purposes of this stay motion, that Ms. Starkman has raised a serious question to be determined regarding the total amount due under the mortgages, in light of her admissions concerning the substantial arrears due under both mortgages, I see no serious question to be determined regarding the entitlement of Home Trust to a writ of possession for the residential property.

[10] Turning to Ms. Starkman's submission that the Sheriff's notice to vacate contained formal defects which invalidated it, she first points to the mis-identification of herself and Home Trust in the style of cause on the notice – she is shown as the mortgagee, while Home Trust is listed as the mortgagor. That error is of no consequence. The obvious reason for the error is that the Sheriff used a standard form notice in which typically the mortgagee would be the plaintiff in the mortgage enforcement proceeding and the mortgagor would be the defendant. In the specific circumstances of this case, it was Ms. Starkman who commenced the action and Home Trust counter-claimed for possession. Ms. Starkman did not depose that she was misled by this error; nor could she reasonably be misled by it.

[11] The second alleged defect in form was the insertion of the name of Home Trust, instead of Ms. Starkman, above the municipal address of the property. Again, this was obviously a mere clerical error which did not mislead Ms. Starkman. The evidence discloses that when Ms. Starkman received the notice, she fully understood that the Sheriff was asking her to vacate the property by June 15, 2015 because Home Trust seeks to enforce the mortgages.

[12] As for her second submission, Ms. Starkman argues that the motion judge failed to satisfy herself, as required by rule 60.10(2), that "all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief." Rule 60.10(2) offers protection to non-parties in "actual possession" of land, which the case law has interpreted to mean the "physical occupation of the premises similar to that ordinarily enjoyed by an owner, tenant or licensee": Jamort Investments Ltd. v. Fitzgerald, 1968 CanLII 371 (ON SC), [1968] 1 O.R. 541 (Master).

[13] Ms. Starkman submits that her two adult children, a daughter and son, are in actual possession of part of the property and the motion judge failed to satisfy herself that the adult children had received sufficient notice of the proceeding. I do not accept Ms. Starkman's submission; the evidence she filed contradicts her submission. First, the affidavits filed by Ms. Starkman clearly disclose that she and her adult daughter have been estranged for the last several years and her daughter now lives in British Columbia, not at the property. Second, as to the adult son, who apparently is 20 years old, Ms. Starkman's affidavit evidence discloses that he is enrolled at Queen's University and, at present, is working at a camp near Gravenhurst.

[14] When Ms. Starkman's affidavits are read as a whole, her concern about the impact of an eviction on her children amounts to a concern about how she will deal with some of their personal belongings left at the property, not with their actual possession of the property. This can be seen most clearly from the letter Ms. Starkman wrote to the motion judge on April 1, 2015, the day after the motion judge released her Addendum to Reasons confirming the issuance of a writ of possession. In para. 4 of her Addendum, the motion judge noted that Ms. Starkman had submitted that "a writ of possession should not issue as this would affect her children who were both away at university." In her April 1, 2015, letter Ms. Starkman wrote: "Furthermore, with respect, I did not submit that a writ of possession should not issue. I merely requested the compassion of time so that my children could pack and move their own belongings." In light of that submission to the motion judge a mere two months ago, it is difficult to place any weight on Ms. Starkman's current argument that the motion judge failed to comply with rule 60.10(2).

[15] Moreover, in her June 10, 2015 affidavit, Ms. Starkman makes it clear that her children have known since February 2011 about Home Trust's efforts to gain possession of the property, and that recently she had asked her son to arrange a conference call with her daughter in light of Home Trust's refusal to delay its efforts to gain possession of the property. It is obvious that both children have had notice for some time about Home Trust's efforts to enforce the mortgages.

[16] In sum, I conclude that Ms. Starkman has not demonstrated any serious question to be determined on the appeal in respect of the granting of the writ of possession.

Irreparable harm

[17] I do not accept Ms. Starkman's submission that her eviction from the property would cause her irreparable harm. The issue of irreparable harm must be assessed in the context of the specific facts of this case. Home Trust and ING lent money to Ms. Starkman on the security of the mortgages which she granted on her property. As part of those standard mortgage transactions, Ms. Starkman agreed that if she defaulted on her obligations to repay the mortgages, the mortgagees could take possession of her property, sell it, and then account to her for the net proceeds from the sale.

[18] While it is true that Ms. Starkman now faces the prospect of losing her residential property as a consequence of her serious defaults under the mortgages, the loss of her home simply results from the promise which she made to the mortgagees when she borrowed money from them. Against the background of those promises, I see no irreparable harm to Ms. Starkman in permitting the mortgagee to execute the writ of possession on the security it holds and requiring Ms. Starkman to find a new place to live once the mortgagee takes possession of the property: Granite Mortgage Corp. v. Jurcevic, 2011 MBCA 59, at paras. 9-10; Kal Lady Investment Corp. v. Montgomery (August 7, 2013), Toronto M42745 (C.A.), at para. 9.

Balance of convenience

[19] As to the balance of convenience, it overwhelmingly favors Home Trust: Ms. Starkman has admitted significant indebtedness and arrears to Home Trust; she does not dispute the validity of the security held by Home Trust on her property; as early as 2011, the mortgagee had put her on notice that if she intended to sell the property, she should do so forthwith, but she did not; she has made no payments under the mortgages for over four years; she has not put in place a re-financing of the property in order to pay out Home Trust; and, Home Trust obtained an initial writ of possession back in 2011, the enforcement of which was delayed by this subsequent litigation started by Ms. Starkman.

[20] In sum, when the three RJR-Macdonald factors are assessed in light of the overall evidence, I conclude that it would not be in the interests of justice to grant Ms. Starkman a stay of the enforcement of the writ of possession.

Disposition

[21] For those reasons, I dismiss Ms. Starkman's motion for a stay of para. 3 of the Judgment pending the disposition of her appeal.

[22] Home Trust is entitled to its costs of this motion on a substantial indemnity basis, in accordance with the standard terms of the mortgages. It filed a bill of costs seeking substantial indemnity costs in the amount of $12,178.70. Although urgent motions such as this one usually generate high costs over a short period of time, I consider the amount sought here to be too high. Home Trust is entitled to the time spent by Ms. Jackson, who appeared on the motion, but not by its junior lawyer, and is entitled to its disbursements. Consequently, I order Ms. Starkman to pay Home Trust costs in the amount of $5,500.00, inclusive of disbursements and HST, within 30 days of the date of this order.

"David Brown J.A."