Court of Appeal for Ontario

Date: November 13, 2025

Docket: COA-25-OM-0416

Motion Judge: Thorburn J.A.

Between

MCC Mortgage Holdings Inc. Plaintiffs (Responding Party)

and

Joyce Rutaihwa and Jasna Rutaihwa Defendants (Moving Parties)

Counsel

Joyce Rutaihwa and Jasna Rutaihwa, appearing in person

Jeremy Opolsky, appearing as amicus curiae

James Riewald, for the responding party

Heard: November 12, 2025

Reasons for Decision

[1] Introduction

This is a motion to extend the time to appeal and stay the order of the motion judge.

i. Background

[2] The moving parties are the registered owners in possession of a property in Oakville. There is a charge on the property between the moving parties and the responding party ("MCC") dated September 28, 2023. The charge was renewed on October 3, 2024 with interest at a rate of 8.74 percent per annum calculated and payable monthly not in advance. The charge provides that on default, MCC can claim payment of the principal amount outstanding under the mortgage and may commence an action and claim possession of the property.

[3] The moving parties were noted in default on November 1, 2024 and have made no mortgage payments since then. The amount due as of January 9, 2025 is $1,341,122.05.

[4] Two notices demanding possession of the property were served on the moving parties on March 10 and 11, 2025. A mortgage enforcement action was subsequently brought. MCC brought a motion for summary judgment, which was granted against the moving parties on July 31, 2025 with costs, which remain unpaid.

[5] The moving parties were served a Notice to Vacate on October 27, 2025, and an eviction is scheduled for November 14, 2025.

ii. Relevant Tests

[6] The test on a motion to extend time is well-settled. The overarching principle is whether the "the justice of the case" requires an extension of time: 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, at para. 6; Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. Each case depends on its own circumstances, but the court is to consider all relevant considerations, including:

(a) whether the moving party formed a good faith intention to appeal within the relevant time;

(b) the length of, and explanation for, the delay in filing;

(c) any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and

(d) the merits of the proposed appeal.

[7] Lack of merit alone may be a sufficient to deny an extension: Enbridge Gas, at para. 16; Laski v. Laski, 2016 ONCA 337 at para. 37; Wardlaw v. Wardlaw, 2020 ONCA 286, at para. 4.

[8] Similar considerations are involved in the test for stay under r. 63.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The test, outlined in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at para. 43, requires the court to determine whether a stay is in the interests of justice considering the following three factors:

(1) a preliminary assessment of the merits to ensure that there is a serious question to be tried;

(2) whether the applicant would suffer irreparable harm if the application were refused; and

(3) an assessment of the balance of inconvenience as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

[9] Since the tests are overlapping, the parties focused their submissions on irreparable harm (or prejudice) and the potential merits of the proposed appeal, considerations relevant to both tests.

iii. Analysis

[10] The moving parties claim there are strong grounds of appeal and they have always intended to proceed with their appeal, although they have not yet filed as they are self-represented. They also claim that a short adjournment will result in no prejudice to the respondents. On the other hand, they claim that if they are evicted, they will suffer irreparable harm as they will lose their home.

[11] The respondent does not dispute that the appellants will suffer if they lose possession of their home. However, as this court noted in Starkman v. Home Trust Company, 2015 ONCA 436, at paras. 17-18, the loss of one's home for failure to pay the mortgage does not always constitute irreparable harm.

[12] In this case, as in Starkman, the moving parties agreed that if they defaulted on their obligations to pay the mortgage, MCC could take possession of the property.

[13] Furthermore, the moving parties bear the burden on the stay motion to adduce evidence of irreparable harm which must establish there is a high degree of probability that permanent and non-compensable harm will occur: Morguard Residential v. Mandel, 2017 ONCA 177, at paras. 22-24; Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859, at para. 9. While the parties advance some medical documentation to demonstrate irreparable harm, this evidence is largely unclear or relates to individuals other than the moving parties. The irreparable harm analysis usually centres on the moving party: see e.g., Ducharme v. Hudson, 2021 ONCA 151, 155 O.R. (3d) 281, at para. 20. Absent irreparable harm in this case, I turn to a preliminary discussion of the merits of the proposed appeal.

[14] The moving parties claim they did not really understand what they were signing, and they were manipulated into signing the mortgage. They also suggest that the relevant documents are not valid as they were electronically signed.

[15] The responding party notes that there was no evidence of fraud before the motion judge and the motion judge did not accept that there were any unconscionable acts performed by the respondents or that the execution of the agreements was irregular. On the contrary, he found that "there is no doubt that the parties executed the applicable loan and mortgage documents, and that [the moving parties] defaulted in repayment of the loan."

[16] While there is no dispute that the appellants wish to appeal the decision to evict them, there was no evidence before the motion judge of improper conduct on the part of the respondent, nor has any new evidence arisen since then to support the allegation of wrongdoing on the part of the respondents or those acting on its behalf. I therefore see no error in the motion judge's decision to grant summary judgment for the reasons he stated.

iv. Conclusion

[17] For these reasons, although I accept the sadness and the difficulties that will be faced by the moving parties who will lose their home, the motion to extend the time to appeal and the motion to stay the order of the motion judge are both denied.

[18] Costs are payable to the respondent in the amount of $1,500.

[19] I am grateful to Mr. Opolsky for assisting the moving parties.

"Thorburn J.A."