ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-443177
DATE: 20120402
BETWEEN:
ROBERT MUNN Applicant – and – MARJETA LAINSCEK, INGRID LAINSCEK, and TONY STANLEY Respondent
Robert Munn, in person as self-represented
Ingrid Lainscek and Tony Stanley, in person as self-represented
HEARD: February 13, 2012
b. p. o’marra j.
reasons for decision
[ 1 ] The Applicant seeks an order of possession for property located at 64 Stephen Drive, Toronto.
[ 2 ] The Applicant is a registered mortgage broker.
[ 3 ] Marjeta Lainscek is the former registered owner of the Stephen Drive property. Her daughter Ingrid resides at that property with her husband Tony Stanley and their nine children.
[ 4 ] Marjeta and Ingrid formerly owned a property at 1276 Vanrose Street in Mississauga.
[ 5 ] The Applicant held a mortgage against the Vanrose property through a registered plan with the Bank of Nova Scotia Trust Company acting as trustee. The mortgage went into default and the Applicant started a mortgage enforcement action in the name of the Bank with the Banks’ authorization to act on his own interest and that of the Bank as trustee.
[ 6 ] The Applicant obtained a default judgment against Ingrid and Marjeta on May 7, 2008 in the amount of $38,005.52 plus $1,816 in costs.
[ 7 ] The Applicant, on behalf of the Bank, took possession of the Vanrose property by a Writ of Possession issued June 7, 2008.
[ 8 ] The Respondents left the Vanrose property full of garbage and damage that required extensive renovation. The Applicant spent more than $50,000 restoring it to marketable condition. The Applicant fears the Respondents may cause similar damage to the Stephen Drive property.
[ 9 ] Following that default judgment, Ingrid and Tony Stanley moved to the Stephen Drive property with their nine children. That property was owned by Marjeta at the time.
[ 10 ] On September 23, 2008 Ingrid started an action against the Applicant and the Bank for misrepresentation and breach of fiduciary duty. The Applicant counterclaimed against Ingrid and Marjeta for the outstanding amounts under the mortgage and damages for waste.
[ 11 ] The Bank sold Vanrose on September 30, 2008 for $350,000 holding the sale proceeds in trust pending resolution of Ingrid’s claim. The action by Ingrid was settled on August 26, 2010 but the counterclaim by the Applicant remained contentious.
[ 12 ] On December 2, 2010 the Applicant obtained a default judgment through the counterclaim against Marjeta in the amount of $77,171.89 plus costs of $4,235.73. The Applicant had also sought exemplary and punitive damages on February 16, 2011. The judgment was amended to the amount of $126,572.42.
[ 13 ] There have been no payments to the Applicant related to the judgments against the Respondents in 2008, 2010 and 2011.
[ 14 ] The Applicant obtained a Writ for Seizure and Sale on March 31, 2011 based on the judgments in 2010 and 2011.
[ 15 ] Marjeta was served with the 2010 judgment, the Writ and Notice of Examination in Aid of Execution on May 19, 2011. She did not attend the examination.
[ 16 ] The Sheriff of Toronto served the Respondents with the Notice of Land Sale for the Stephen Drive property on August 15, 2011.
[ 17 ] The Sheriff seized Marjeta’s equity of redemption in the Stephen Drive property and advertised it for sale in the Ontario Gazette on October 22, 2011 and in the Toronto Star on November 2, 2011 and November 9, 2011. The Applicant purchased the property at auction on November 22, 2011. The Sheriff signed the Deed Poll transferring the property to the Applicant’s name on December 1, 2011.
[ 18 ] The Applicant sent a Demand for Possession of the property to the Respondents on December 14, 2011. Ingrid and Tony Stanley have not vacated the property and continue to live there with their nine children.
[ 19 ] The Respondents were served with notice of this Application on January 19, 2012.
[ 20 ] There have been no applications to set aside the three default judgments.
The Law
[ 21 ] The Sheriff to whom a writ of execution against lands is delivered may seize and sell the lands of the execution debtor.
Executions Act , R.S.O. 1990 c. E-24 s. 9(1) .
[ 22 ] An order for recovery or possession of land may be enforced by a writ of possession.
Rule 60.03.
[ 23 ] A writ of possession may be issued with leave of the Court at the time an order entitling a party to possession is made.
Rule 60.10(1).
[ 24 ] The Court may grant leave to issue a writ of possession where it is satisfied that all persons in actual possession have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the Court for relief.
Rule 60.10(2).
[ 25 ] The legal owner of a property has constructive possession of it.
Fletcher v. Storoschuk et al. , (1982) 1981 1724 (ON CA) , 35 O.R. (2d) 722 (O.A.C.) at para. 10 .
[ 26 ] At common law the bona fide purchaser acquires title when monies are exchanged for a deed or other instrument, as the case may be.
CitiFinancial Canada East Corp. v. Touchie , 2010 NSSC 149 , [2010] N.S.J. No. 224 (N.S. Sup. Court) at para. 34 .
[ 27 ] The owner of land is entitled to an order for delivery of the possession of land to be enforced by a writ of possession when the individuals against whom the order is made have no interest in the land and have received sufficient notice.
Samad v. Samad , [2008] O.J. No. 2582 (O.S.C.) paras. 66 and 67 .
Analysis
[ 28 ] The Applicant is the owner of the property and is entitled to delivery of possession.
[ 29 ] The Respondents are not tenants as defined in the Residential Tenancies Act , 2006 S.O. 2006 Ch. 17. There is no evidence they are lessees or have any interest whatsoever in the property.
[ 30 ] Sufficient notice has been given to all persons in possession of any part of the property. Ingrid has advised the Court that the only residents are herself, Tony Stanley and their nine children. They were properly served on January 19, 2012.
Result
[ 31 ] Application allowed. A writ of possession is issued to the Applicant to enforce the order that the Respondents deliver possession of 64 Stephen Drive, Toronto to the Applicant. Bearing in mind the large family that currently resides at this property I direct that the Respondents are to deliver vacant possession to the Applicant no later than May 31, 2012. That should give the Respondents time to secure alternative housing. The Respondents should know that they may be liable to the Applicant for any damage caused to the property.
[ 32 ] Costs are awarded to the Applicant. I will receive brief written submissions as to costs within 14 days of the release of this ruling. They can be sent to my attention at Judicial Administration.
B. P. O’Marra J.
Released: April 2, 2012
COURT FILE NO.: CV-12-443177
DATE: 20120402
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT MUNN Applicant – and – MARJETA LAINSCEK, INGRID LAINSCEK, and TONY STANLEY Respondent
REASONS FOR DECISION
B. P. O’Marra J.
Released: April 2, 2012