Court of Appeal for Ontario

Date: 2018-04-09 Docket: C64216, C64217

Panel: MacPherson, Pepall and Miller JJ.A.

Between

C64216

Michael Mikhail and Fawzia Mary Mikhail Plaintiffs (Appellants)

and

Linda Hill, Paul Mitchell, Al Sinclair and Hallmark Realty Ltd. Defendants (Respondent)

AND BETWEEN

C64217

Linda Hill and Paul Mitchell Plaintiffs (Respondents)

and

Michael Mikhail and Fawzia Mary Mikhail Defendants (Appellants)

Counsel

Michael Mikhail, acting in person for the appellants

Paul Gaglia, for the respondent, Paul Mitchell (C64216)

Nathan Lean, for the respondents, Linda Hill and Paul Mitchell

Heard and released orally: April 9, 2018

On appeal from: the order of Justice Meridith Donohue of the Superior Court of Justice, dated July 20, 2017.

Reasons for Decision

[1] The appellants Michael Mikhail and Fawzia Mary Mikhail appeal from the order of Donohue J. of the Superior Court of Justice dated July 20, 2017. In the order, the motion judge granted summary judgment in favour of the respondents Linda Hill and Paul Mitchell.

[2] The summary judgement motion was made in two related actions involving the sale of a property in Brampton from the respondent Linda Hill to the appellant Fawzia Mary Mikhail. The parties agreed to a vendor takeback mortgage made between Hill and her husband Paul Mitchell as mortgagees and Ms. Mikhail as mortgagor. The respondent Michael Mikhail, Ms. Mikhail's son, guaranteed his mother's observance of all terms, covenants and conditions under the mortgage.

[3] The appellants defaulted under the mortgage. The respondents issued a Notice of Sale. The appellants responded with their own action and a motion to set aside the respondents' Notice of Sale.

[4] The appellants' motion to set aside the Notice of Sale and the respondents' summary judgement motion were heard together. The respondents were successful on both motions. The motion judge concluded:

There is a valid mortgage, there is a proper notice of sale and there is default on the mortgage since May 2016.

This is a proper case for summary judgment pursuant to the standard charge terms.

[5] The appellants appeal from the motion judge's decision.

[6] The appellants' principal argument is that they missed only one payment, and that by accident, and that they quickly indicated a willingness to correct the error. Accordingly, they assert the consequences of a Notice of Sale and a motion for summary judgment were too severe.

[7] We do not accept this submission. The motion judge carefully reviewed the record and found as a fact that the default started in May 2016 and continued until the legal proceedings were commenced several months later. Nor was there any evidence before her that the default had been remedied. We see no basis for interfering with this conclusion and the analysis supporting it.

[8] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $2,000 and $1,000 (Mitchell only) respectively, inclusive of disbursements and HST.

"J.C. MacPherson J.A."

"S.E. Pepall J.A."

"B.W. Miller J.A."