Court File and Parties

CITATION: Singh v. Grewal, 2024 ONSC 5649

DIVISIONAL COURT FILE NO.: 590/24

DATE: 20241010

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: BOBBY SINGH, Applicant -and- MANMOHAN SINGH GREWAL, Respondent

BEFORE: FL Myers J.

COUNSEL: Doug Bourassa, for the Respondent Bobby Singh, for himself

HEARD at Toronto (by videoconference): October 10, 2024

Endorsement

[1] Mr. Singh seeks leave to appeal the decision of Andre J. dated June 21, 2024. In that decision, Andre J. refused to continue a stay of enforcement of the Respondent’s mortgage over Mr. Singh’s property.

[2] The mortgage has been in default since June, 2022. Mr. Grewal obtained default judgment and a writ of possession against Mr. Singh by June, 2023.

[3] The parties had discussions that resulted in an agreement whereby the Respondent agreed to forbear from enforcing the mortgage and judgment in return for agreed payments by Mr. Singh. The agreement expired but the Respondent agreed to extend it if Mr. Singh paid $20,000 by October 22, 2023. That payment has never been made.

[4] Then the parties entered a second forbearance agreement to run from November, 2023 to April, 2024.

[5] Andre J. found that Mr. Singh failed to make agreed payments when due in December 2023 and January, 2024. The Respondent refused an offer of payment of the missed payments made by Mr. Singh’s spouse in late February, 2024. The judge also found that the October, 2023 payment of $20,000 remained unpaid.

[6] Andre J concluded:

[11] In my view, the stay of the eviction should be ended, and the plaintiff should be allowed to enforce its judgment and its Unit [writ?] of possession. The defendant has had sufficient time to honor the terms of the mortgage and Forbearance Agreement he voluntarily entered into. He has repeatedly failed to honor these agreements.

[7] Mr. Singh appealed initially to the Court of Appeal. He says he was mis-directed to that court by a staff member of the Superior Court. In a brief endorsement dated September 17, 2024, [Court File No. COA-24-CV-0839] Monahan JA of the Court of Appeal directed Mr. Singh to apply for leave to appeal to this court. He explained that depending on the evidence, it would be open to this court to find that it is in the interest of justice to extend the time limit for Mr. Singh to seek leave to appeal in the circumstances.

[8] Mr. Bourassa advises that his client takes no position on the motion to extend time. Accordingly, I order that Mr. Singh’s motion record, containing his factum, both for the motion to extend time and for leave to appeal, is validly filed with this court on a timely basis.

[9] I also direct that Mr. Singh’s motion record will stand as the perfection of his motion for leave to appeal.

[10] Mr. Bourassa advises that his client’s material for the leave to appeal motion will be delivered by the end of day tomorrow October 11, 2024.

[11] I direct that the motion for leave to appeal be expedited and placed before the next panel with room for a brief motion. The materials are very brief and self-contained. M. Singh’s material makes no reference to the applicable test for leave to appeal. But they make set out clearly his proposed grounds for appeal.

[12] Mr. Singh advises that his proposed appeal is based on his submission that Andre J. failed to accommodate his disabilities and that the judge ought to have ordered a trial of an issue concerning the ongoing validity and enforceability of the forbearance agreement(s).

[13] Mr. Singh also seeks a stay pending the hearing of the motion for leave to appeal. Currently, the Respondent is waiting for an order to renew his writ of possession. The writ expired after a year passed form its issuance. It is not yet known when the parties will be able to get before Andre J. to settle the terms of the order. Mr. Bourassa advises that it takes around 10 weeks for a sheriff to enforce a writ of possession in Brampton.

[14] It is very likely that the leave to appeal motion will be heard and resolved well before the Respondent is in the position to enforce a writ of possession. If that turns out to be incorrect, Mr. Singh may seek another case conference on an urgent basis if the mortgagee threatens enforcement before the motion for leave to appeal is resolved.

[15] Mr. Bourassa correctly notes as well that the order of Andre J. cannot be stayed. It refused to continue a stay that had expired by its terms. Staying the order of Andre J. will not bring the forbearance agreement or stay back into life.

[16] I advise Mr. Singh that if he finds himself facing eviction before this proceeding is completed, he will need to ask for an interim injunction prohibiting the mortgagee/Respondent from enforcing his rights pending the completion of this proceeding.

[17] The legal test for an injunction is likely the same as a request for a stay. But Mr. Singh will need to be attuned to the issues that will apply. To obtain an injunction (or a stay) Mr. Singh will need to establish, on evidence, (a) that his appeal has some merit; (b) that if he is evicted before the appeal is heard, he will suffer irreparable harm that cannot be compensated in money; and (c) that he will be hurt more if there is no injunction than Mr. Grewal will be hurt by an injunction being ordered.

[18] Costs reserved to the panel in light of the terms of the mortgage that will entitle the mortgagee to costs if it succeeds.

FL Myers J.

Date: October 10, 2024