Court of Appeal for Ontario

Date: 2017-06-29 Docket: C63182

Judges: Watt, Benotto and Roberts J.A.

Between

Paradigm Quest Inc. Plaintiff (Appellant)

and

Louise McInroy and Timothy Paul McInroy Defendants (Respondents)

Counsel

For the Appellant: James M. Butson and Cristina Internicola

For the Respondents: Timothy Paul McInroy, acting in person

Heard and Released Orally: June 26, 2017

On Appeal From: The judgment of Justice Wolfram Tausendfreund of the Superior Court of Justice, dated December 6, 2016.

Reasons for Decision

[1] Paradigm Quest moved for summary judgment for default under a mortgage. The mortgagors acknowledged that they were in default and had no defence to the claim.

[2] The motion judge granted summary judgment for the full amount claimed by Paradigm but he ordered that the judgment be held in abeyance until September 15, 2017, provided that the mortgagors made certain payments on account of arrears and ongoing mortgage obligations. Default on any of the payment obligations triggers issuance of the judgment and entitles Paradigm to an order for possession.

[3] Paradigm appeals. It contends that the motion judge lacked jurisdiction to order that the judgment be held in abeyance and to impose terms. The mortgagors appear but are not represented and have filed no responding materials.

[4] For all practical purposes, the part of the motion judge's order of which Paradigm complains amounts to a stay of that order subject to certain conditions. An order granting or refusing a stay of execution of a judgment is an interlocutory order from which there is no right of appeal to this court: Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 116 O.A.C. 103, at para. 13. This is not a case in which the formal order contains both a final order and an interlocutory order granted as alternative forms of relief, in which case we have held that we have jurisdiction over the entire order: Burtch v. Barnes Estate (2006), 80 O.R. (3d) 365 (C.A.). Here the final and interlocutory aspects of the order are not alternative forms of relief.

[5] In the result, we are satisfied that jurisdiction over this appeal properly lies with the Divisional Court with leave under s. 19(1)(b) of the Courts of Justice Act. The appellant may speak with the Deputy Registrar of this court to obtain directions about getting this appeal before the proper forum. There is no order as to costs.

"David Watt J.A."

"M.L. Benotto J.A."

"L.B. Roberts J.A."