COURT OF APPEAL FOR ONTARIO

CITATION: JGB Collateral v. Rochon, 2020 ONCA 804

DATE: 20201216

DOCKET: M51754 (C67482)

Rouleau, Hoy and Hourigan JJ.A.

BETWEEN

JGB Collateral, LLC, a Delaware Limited Liability Company

Plaintiff

(Responding Party/Appellant)

and

Donna Jean Hewitt Rochon and John Rochon

Defendants

(Moving Parties/Respondents)

Counsel:

Jonathan P.M. Collings, for the moving party Donna Jean Hewitt Rochon

Taayo Simmonds, for the moving party John Rochon

Melanie Ouanounou and Carlie Fox, for the responding party

Heard: in writing

REASONS FOR DECISION

[1] Ten days after the court allowed the respondent’s appeal and granted summary judgment to the respondent, authorizing it to enforce its mortgage and have the property at issue sold, the moving party Donna Rochon advised the respondent, for the first time, that she is a farmer for the purposes of the Farm Debt Mediation Act, S. C. 1997, c. 21 (“the FDMA”).

[2] Under s. 21 of the FDMA, a secured creditor is required to give a statutory notice to a farmer engaged in farming for commercial purposes prior to enforcing a security interest against the farmer’s property, advising the farmer of the right to make an application under s. 5 of the FDMA. Section 5 of the FDMA allows a farmer (as defined in the FDMA) to apply to an administrator for a stay of proceedings by its creditors and a mediation among those creditors, or a review of the farmer’s financial affairs and a mediation among the farmer’s secured creditors. If the secured creditor does not give notice under s. 21, the steps taken by the secured creditor to enforce its security are “null and void”.

[3] The respondent did not give notice under s. 21 of the FDMA. Ms. Rochon now seeks a declaration that all proceedings commenced by the respondent to enforce its mortgage are null and void, ab initio, on this basis.

[4] Ms. Rochon is barred from raising this issue at this stage of these proceedings. The enforceability of the mortgage was squarely at issue on the appeal. On the record before us, there is a clear inference that the she was aware of commercial farmers’ rights under the FDMA at the time the appeal was heard. Assuming her argument has any merit, it ought to have been raised long ago.

[5] In any event, the appellant has tendered no credible evidence in support of her assertion that she is a farmer engaged in farming for commercial purposes within the meaning of the FDMA.

[6] This motion is a patent attempt to further delay her creditors, and an abuse of process.

[7] Accordingly, the motion is dismissed.

[8] The respondent is entitled to its costs of the motion. If the parties are unable to agree on the costs of the motion, the respondent shall file cost submissions not exceeding five pages within 14 days after release of these reasons. The moving parties may file joint responding cost submissions, not exceeding five pages, within 10 days thereafter.

“Paul Rouleau J.A.”

“Alexandra Hoy J.A.”

“C.W. Hourigan J.A.”