Court File and Parties

Court of Appeal for Ontario Date: 2023-12-12 Docket: COA-23-CV-0161

Before: Fairburn A.C.J.O., van Rensburg and Zarnett JJ.A.

Between:

New Haven Mortgage Corporation and Community Trust Company Plaintiffs (Respondents)

And:

Angela Codina, also known as Angie Marie Codina, Angie Maria Codina, Angela Marie Codina, Angela Maria Codina, Angele Marie Codina, Angele Maria Codina, Angelina Marie Codina, Angelina Maria Codina, Angeliki Marie Codina, Angeliki Maria Codina, Angie Marie Kontina, Angie Maria Kontina, Angela Marie Kontina, Angela Maria Kontina, Angele Marie Kontina, Angele Maria Kontina, Angeliki Marie Kontina, Angeliki Maria Kontina, and Angelique Codina, in her personal capacity, and as Trustee of the Estate of Evangelia Codina Defendant (Appellant)

Counsel: Angela Codina, acting in person Jennifer Croswell, for the respondents

Heard and released orally: December 8, 2023

On appeal from the order of Justice Robert B. Reid of the Superior Court of Justice, dated December 13, 2022, with reasons reported at 2022 ONSC 736.

Reasons for Decision

[1] The appellant appeals an order of the motion judge dismissing her claims in respect of the respondent mortgagees’ taking of possession of a house owned by her mother after default on a mortgage that she guaranteed, and challenging certain fees and charges levied by the respondents.

[2] We do not agree that the motion judge made any of the errors alleged.

[3] First, he did not err in concluding that the respondents’ peaceable taking of possession of the property was not contrary to s. 42(1) of the Mortgages Act. Contrary to the appellant’s submission, this conclusion is consistent with Lee v. Guettler (1976), 10 O.R. (2d) 257. The respondents did not commence an action or take proceedings in order to take possession of the property.

[4] Second, the motion judge did not err in his factual findings that the property was vacant when the respondent took possession, and that the respondent took peaceable possession. His decision was in accordance with the definition of “peaceable possession” articulated in the recent decision of this court, Hume v. 11534599 Canada Corp., 2022 ONCA 575.

[5] It flows from this conclusion that there is no merit to the appellant’s appeal of the motion judge’s assessment of the fees and expenses charged by the respondents, which is premised on there having been an illegal taking of possession of the property.

[6] However, the respondents advised for the first time today that they are withdrawing their claim in respect of charges for three months’ interest, and they acknowledge that the appellant is entitled to a credit for these charges, in the combined amount of $8,616.49.

[7] The appeal is therefore allowed only to the extent that the order must be amended to reflect the acknowledged credit. The appeal is otherwise dismissed.

[8] Costs of the appeal to the respondents fixed at $5,000 inclusive. There will be no change to the costs awarded in the court below.

“Fairburn A.C.J.O.”

“K. van Rensburg J.A.”

“B. Zarnett J.A.”