Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220318 DOCKET: M52885 (C69657)

van Rensburg, Nordheimer and Harvison Young JJ.A.

BETWEEN

11534599 Canada Corp. Respondent (Moving Party/Appellant)

and

Ivylin Ricketts Hume and Weston Rodney Hume Applicants (Responding Parties/Respondents)

Counsel: Paul Robson, for the moving party Elaine S. Peritz, for the responding parties

Heard: March 7, 2022 by video conference

Reasons for Decision

[1] The moving party 11534599 Canada Corp. (“115”) seeks review of an order of the motion judge, Paciocco J.A., granting an extension of time to perfect its appeal on terms that suspended the payment of interest until the appeal was perfected.

[2] This motion arises out of the following circumstances. 115 held a second mortgage on the responding parties’ home. The mortgage was in default when a fire on the property forced the responding parties to move out. 115 took possession at that point to satisfy the responding parties’ default under the mortgage. It refused to allow the responding parties to pay off their mortgage or to exercise their right to have the mortgage assigned.

[3] The responding parties brought an application seeking, among others, a declaration that 115 had taken unlawful possession of their home. On June 28, 2021, the application judge, Coats J., found that 115 was not in lawful possession of the property and ordered it to accept payment of $241,528.72 plus per diem interest of $76.58 from March 27, 2021 to the date of payment. Upon receipt of payment, 115 was ordered to assign the mortgage to a replacement lender who had already provided the responding parties with a mortgage commitment (the “Coats J. Order”).

[4] 115 filed a notice of appeal on July 14, 2021 and moved for an urgent stay of the Coats J. Order. Justice Thorburn declined to grant a stay on July 27, 2021, in part because the responding parties had undertaken not to sell the house.

[5] The deadline for the perfection of 115’s appeal to this court from the Coats J. Order was August 15, 2021. On October 4, 2021, the motion judge granted the extension to perfect the appeal to October 8, 2021 on terms. He accepted that, while there was a lack of direct explanation, 115’s delay was due to inadvertence. However, he found there was also prejudice to the responding parties: 115 had attempted to impose preconditions on the assignment of the mortgage not provided for in the Coats J. Order, and had effectively manufactured a stay of proceedings that it had been denied. In the interim, 115 continued to accumulate per diem payments on the mortgage since it had not yet been assigned.

[6] However, the motion judge concluded the prejudice could be ameliorated, including by imposing “a condition that no per diem payments will be owing for the period caused by the delay in perfecting this appeal”, as required by the interests of justice. He ordered that per diem payments be suspended from the date by which the Office of the Registrar informed 115 that its appeal would be dismissed if not perfected and the date the appeal was perfected. In effect, this was a period of one month, between September 7 and October 7, 2021, during which the accumulated interest was $2,371.50. The motion judge clearly indicated that, but for this term, he would not have granted the extension. 115 was ordered to pay the respondents $3,000 in costs for the motion.

[7] In its written materials supporting its motion, 115 relied on three arguments. In arguing the appeal, 115 relied on a single argument that was not in its factum. The court invited brief written submissions from the responding parties. We have received and reviewed those submissions.

[8] 115 argued that the motion judge lacked jurisdiction to vary the Coats J. Order by suspending the requirement of the payment of per diem interest provided for in the Coats J. Order from the date that the appeal should have been perfected (September 7, 2021) to the date that the appeal was perfected (October 7, 2021). It argues that the motion judge, as a single judge, substantively altered an order, which can only be done by a panel of the court of appeal.

[9] We disagree. It is unnecessary to determine whether, as 115 alleges, the imposition of a term disqualifying the moving party from per diem interest due to its delay was outside the jurisdiction of a single judge of this court when granting an extension of time to perfect an appeal. 115’s submission depends on the premise that the motion judge permanently terminated its entitlement to claim the interest accruing during this period. That is not consistent with a fair reading of the motion judge’s order. It does not purport to alter the substance of the Coats J. Order; it simply suspends the payment of the per diem interest pending the hearing of the appeal and does not affect 115’s right to pursue this issue in the hearing of the appeal on its merits.

[10] Moreover, this term of the extension was necessary in the interests of justice to address the prejudice that the motion judge found would otherwise arise from the extension of the time to perfect. Without this term, he stated clearly that he would not have granted 115 the extension of time.

[11] For these reasons, the review motion is dismissed. Costs of $4,000 payable to the responding parties, inclusive of disbursements and H.S.T.

“K. van Rensburg J.A.”

“I.V.B. Nordheimer J.A.”

“A. Harvison Young J.A.”