Court of Appeal for Ontario

Date: April 30, 2018 Docket: C64603

Judges: Strathy C.J.O., Watt and Epstein JJ.A.

Between

Sub-Prime Mortgage Corporation Plaintiff (Respondent)

and

Juliana Cedeno, Edmund Dickson and Jaskarn Samra Defendant (Appellant)

Counsel

Darrell Paul, for the appellant Jaskarn Samra

Glenn E. Cohen, for the respondent

Heard and released orally: April 26, 2018

On appeal from: the order of Justice Francine E. Van Melle of the Superior Court of Justice, dated October 24, 2017.

Reasons for Decision

[1] The appellant, a third mortgagee, moved to set aside a default judgment in a foreclosure action brought by the first mortgagee (who also held second and fourth mortgages).

[2] The motion was brought on a timely basis. The only issue before the motion judge was whether the appellant's defence had any merit.

[3] In his affidavit and draft statement of defence, the appellant said that he had an interest in the property and that there was sufficient value in the property to pay his third mortgage after satisfaction of the claims of the respondent in relation to the first and second mortgages.

[4] We agree with the motion judge that this was not a defence. The appellant did not dispute the validity of the respondent's mortgages. As the motion judge noted, the appellant was entitled to file a request to redeem or a request for sale. He did neither. He made no request to do so on the motion.

[5] While we do not disagree with the appellant that the motion judge may have incorrectly calculated the amounts owing on the first and second mortgages, the error was not material to the outcome. In the absence of a defence and the appellant's not having requested a sale, there was no basis to set aside the default judgment.

[6] We do not admit the fresh evidence with respect to the subsequent sale of the property, as it could not affect the outcome of the appeal.

[7] The appeal is therefore dismissed with costs to the respondent in the amount of $4,500, inclusive of disbursements and all applicable taxes.

"G.R. Strathy C.J.O."

"David Watt J.A."

"Gloria Epstein J.A."