COURT OF APPEAL FOR ONTARIO

2377351 Ontario Inc. v. Evbian Construction & Design Inc., 2020 ONCA 399

DATE: 20200622

DOCKET: C67692

MacPherson, Pardu and Huscroft JJ.A.

BETWEEN

2377351 Ontario Inc.

Plaintiff (Respondent)

and

Evbian Construction & Design Inc., Everton Campbell and Anca Paduraru

Defendant (Appellant)

Anca Paduraru for the appellant

Louis Vittas, for the respondent

Heard: In writing

On appeal from the judgment of Justice Jane Ferguson of the Superior Court of Justice, dated November 15, 2019.

REASONS FOR DECISION

[1] Evbian Construction & Design Inc. (“Evbian”) appeals from a judgment settling the amounts owed under a third mortgage, granting possession to the mortgagee and granting leave to issue a writ of possession.

[2] Evbian admitted that it defaulted in payment of the principal owing after the mortgage matured on June 15, 2018. On September 24, 2019, on the return of the mortgagee’s summary judgment motion, the motion judge gave judgment in favor of the mortgagee for the principal owing in the sum of $220,000, on consent. The appellant objected to the mortgagee’s claims for various ancillary amounts for fees, penalties, legal costs and interest, and the balance of the hearing was adjourned to November 15, 2019. After hearing from both parties, and after reviewing the disputed items, the motion judge reduced the additional amounts from $55,491.63 to $35,675.00, and gave judgment for that amount, as well as granted possession to the mortgagee and gave leave to issue a writ of possession. The motion judge did not give reasons for the reductions but went through the list of additional amounts claimed and disallowed $19,816.63 sought by the mortgagee for various matters. It does not appear that the appellant filed any evidence on the motion.

[3] Whatever the effect of the overstatement of the amounts owed on the notice of power of sale, the standard charge terms entitled the mortgagee to possession in the event of default.

[4] No error has been identified in the motion judge’s assessment of the reasonableness of the amounts claimed by the mortgagee and her calculation of what the appellant should pay. Given the admitted, substantial default, she did not err in granting possession to the mortgagee and granting leave to obtain a writ of possession.

[5] Accordingly, the appeal is dismissed, with costs to the respondent fixed at $5,000.00. For clarity, any stay pending appeal granted by this court expires.

“J.C. MacPherson J.A.”

“G. Pardu J.a.”

“Grant Huscroft J.A.”