Court of Appeal for Ontario

Date: 2019-05-22 Docket: C66067

Judges: Sharpe, Pepall and Roberts JJ.A.

Between

Meridian Credit Union Ltd. Plaintiff (Respondent)

and

Christian Chukwuedozie Chijindu and Nkiruka Chijindu Defendants (Appellants)

Counsel

Christian C. Chijindu, in person and for the appellant, Nkiruka Chijindu

Duncan M. MacFarlane, for the respondent

Hearing and Appeal

Heard and released orally: May 17, 2019

On appeal from: the judgment of Justice S.J. Woodley of the Superior Court of Justice, dated September 27, 2018.

Reasons for Decision

[1] The appellants admit that, by transferring and further encumbering the property without the respondent mortgagee's consent, they committed acts of default. They argue, however, that the motion judge erred by granting summary judgment to enforce the mortgage on the basis of those defaults, and submit that by taking three months' payments by way of prearranged withdrawal from the appellants' bank account after giving notice of default, the respondent waived the default.

[2] We do not accept that submission.

[3] Accepting monthly payments did not amount to waiver under the terms of the mortgage, which provides that the mortgagee may waive default in writing, nor did accepting payments meet the legal test for waiver, laid down in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, which requires inter alia the communication of an unequivocal and conscious intention to abandon the right to rely on the deficiency or default. The motion judge found that acceptance of three payments did not satisfy that test and her conclusion is amply supported by the record.

[4] The respondent concedes that para. 2 of the judgment should be amended to reflect the interest payments made by the appellants on the line of credit up to the date of judgment. Accordingly, para. 2 shall be amended as follows:

THIS COURT FURTHER ORDERS that the Defendants shall pay to the Plaintiff the sum of $74,971.31, due under the line of credit dated May 24, 2016, and post-judgment interest at the rate of 3% per annum.

[5] The appeal is allowed, but only to the extent of the concession relating to pre-judgment interest. Otherwise, the appeal is dismissed. Costs to the respondent, fixed at $5,000, inclusive of disbursements and taxes.

"Robert J. Sharpe J.A."

"S.E. Pepall J.A."

"L.B. Roberts J.A."