Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20210510 DOCKET: M52237 (C69029)

Juriansz, van Rensburg and Sossin JJ.A.

BETWEEN

2495940 Ontario Inc. Applicant (Appellant/Responding Party)

and

2633346 Ontario Inc. Respondent (Respondent/Moving Party)

Counsel: Scott Turton, for the moving party Behrouz Amouzgar and Stefanija Savic, for the responding party

Heard: May 4, 2021 by videoconference

Reasons for Decision

[1] The appellant 2495950 Ontario Inc. (“249”) and the respondent 2633346 Ontario Inc. (“263”) are mortgage lenders engaged in a priorities dispute: 249 holds a second mortgage registered against the borrower’s property, while 263 holds a first registered mortgage by assignment. 249 seeks to appeal the application judge’s determination that certain charges were proper charges under 263’s mortgage and would be recoverable in the enforcement of its mortgage, and that the first mortgage has priority over the second. 263 moves to quash the appeal on the basis that the order under appeal is interlocutory.

[2] We agree. The appeal is from the order which provides at para. 2:

This court declares that subject to the pending trial of an issue, the “disputed charges”, as the term is defined in the Reasons, arising from, and the increased interest rate under, the Renewed First Mortgage are enforceable and have priority over the outstanding indebtedness under the Second Mortgage.

[3] The matter was before the application judge who made a determination of the charges on the consent of the parties, but directed a trial of an issue: whether the assignment of the first mortgage to the respondent was fraudulent. Paragraph 1 of the order under appeal adjourns the determination of that issue to the trial of an issue. The application judge remained seized of the trial of the issue. She specifically stated at para. 28 of her reasons that “any rulings I make will be subject to the outcome of the trial of an issue”.

[4] Counsel for 249 argued strenuously that the motion judge decided certain issues, and that therefore the order is final. These decisions were made in the course of the application proceedings, and are subject to any order that may be made following the trial of the issue of fraud. The “very subject matter” of the litigation has not yet been determined. The enforceability of 263’s mortgage and its priority over 249’s mortgage and for what amounts cannot be determined on a final basis until the trial of the fraud issue has taken place. That remains to be determined only after the trial of the issue of fraud. See Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53, at para. 22.

[5] The order is interlocutory. The appeal is therefore quashed. Costs to 263 of this motion and the appeal are fixed at $5,000, inclusive of HST and disbursements.

“R.G. Juriansz J.A.”

“K. van Rensburg J.A.”

“L. Sossin J.A.”