CITATION: McLaughlin v. 369967 Ontario Limited, 2025 ONSC 5780
DIVISIONAL COURT FILE NO.: DC-24-0080-0000
DATE: 20251017
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sweeny RSJ, NAKATSURU AND SHORE JJ.
BETWEEN:
John Paul McLaughlin and Lori Ann McLaughlin
Appellants
– and –
369967 Ontario Limited
Respondent
Self-represented Appellants
Sam A. Presvelos, for the Respondent
HEARD: October 10, 2025
REASONS FOR DECISION
[1] At the end of the hearing of this appeal, the panel advised the parties that the appeal was dismissed, with reasons to follow. These are the reasons.
[2] The appellants are the owners of a residential property known as 2135 Lakeshore Rd. West, Oakville, ON.
[3] On November 19, 2020, the appellants obtained a second mortgage from the respondent for an initial term of one year, expiring December 1, 2021.
[4] The appellants renewed the second mortgage for another term, ending December 1, 2022.
[5] The appellants then renewed the second mortgage for a third time, maturing on December 1, 2023. However, the appellants stopped making payments towards the second mortgage in November 2022, defaulting on the second mortgage.
[6] The respondent commenced an action on March 3, 2023, to enforce the mortgage. It was served pursuant to an order for substituted service.
[7] The appellants failed to deliver a statement of defence. They were noted in default and a default judgment was obtained on June 28, 2023.
[8] On February 8, 2024, the respondent brought a motion for a writ of possession for the property. At the same time, the appellants brought a cross motion to set aside the default judgment.
[9] The matter came before Associate Justice Jolley, who made an order granting leave for writ of possession, suspended until May 2, 2024. The appellants’ cross-motion was scheduled for May 2, 2024. The appellants were also ordered to make interim mortgage payments from February 28, 2024, until their motion was heard.
[10] On May 2, 2024, the cross-motion to set aside the default judgment was heard by Associate Justice Robinson. The motion was dismissed. The appellants appeal this order.
[11] Before hearing the appeal, the respondent raised a preliminary issue, submitting that the appeal is now moot and should not be heard by the Court. On December 19, 2024, the appellants paid out the principal and most of the interest owing on the second mortgage, resulting in the second mortgage being discharged from the appellants’ property. The respondent submits that there are no outstanding issues in the litigation.
[12] For the reasons below, I agree that the appeal is moot, and this is not an appropriate case to exercise our discretion to hear the appeal nonetheless.
[13] There are times when an appeal court will exercise its discretion and hear an appeal that is moot. The test was set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 SCR 342.
[14] The two-step analysis in Borowski is as follows:
a. Does there remain a live controversy in the case?
b. If not, should the court exercise its discretion to hear the case? The three underlying rationales to consider in determining whether to exercise discretion are:
i. the existence of a truly adversarial context;
ii. the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve moot cases;
iii. the respect shown by the courts to limit themselves to their proper adjudicative role as opposed to making free-standing, legislative-type pronouncements.
[15] I find there is no live controversy in this case. The action is at an end because the mortgage was repaid. The action was commenced to enforce the mortgage, which mortgage has now been paid. Therefore, there is no issue outstanding in the appeal and the appeal is moot.
[16] One of the primary issues in dispute before Associate Justice Robinson was whether the terms of the second mortgage were changed when it was renewed the last time, such that monthly mortgage payments were unnecessary. This issue no longer needs to be resolved because the mortgage expired, and it has been paid out and discharged.
[17] In considering whether the Court should still exercise its discretion, I find that the appellants have not discharged their onus to demonstrate why the Court should depart from its usual practice of refusing to hear moot matters.
[18] Given that the mortgage has been paid and discharged, there are no collateral consequences to the parties in this case.
[19] Given the limited judicial resources, a court will only exercise its discretion if special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it.
[20] There are no particular circumstances in this case that would justify the expenditure of limited judicial resources in resolving this moot case. Having read the appellants’ factum, the appellants are re-arguing the motion that was before the Associate Judge. Although the appellants submit that the Associate Judge erred in law and mixed fact and law, in fact, the alleged errors are all related to facts, and the application of facts to the law in the exercise of discretion in refusing to set aside the default judgment.
[21] Deciding this case would be fact specific to this case and not likely to affect other cases in the future and will have little, if any, precedential value. Further, as set out above, the issues, if decided, will have no practical effect on the parties. I am not persuaded that this case has any broad importance to the public at large.
[22] For these reasons we find the appeal is moot. This Court will not exercise its discretion to hear a moot matter in this case.
Disposition:
[23] The application for judicial review is quashed.
Costs:
[24] Neither party uploaded cost submissions or a bill of cost, as required under the practice direction. The parties were unable to reach an agreement on the issue of costs. Therefore, there shall be no costs payable between the parties.
“Shore J.”
I agree “Sweeny RSJ.”
I agree “Nakatsuru J.”
Released: October 17, 2025
CITATION: McLaughlin v. 369967 Ontario Limited, 2025 ONSC 5780
DIVISIONAL COURT FILE NO.: DC-24-0080-0000
DATE: 20251017
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sweeny RSJ, NAKATSURU AND SHORE JJ.
BETWEEN:
John Paul McLaughlin and Lori Ann McLaughlin
Appellants
– and –
369967 Ontario Limited
Respondent
REASONS FOR JUDGMENT
Released: October 17, 2025