SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 11-90000199-00MO
DATE: 20120116
RE: HER MAJESY THE QUEEN
Respondent
- and -
AM-STAT CORPORATION
Applicant
- and -
OLD NAVY PROPERTY CORPORATION
Respondent
BEFORE: Justice M. D. Forestell
COUNSEL:
Faiyaz A. Alibhai , for the Attorney General of Canada
Harvey S. Dorsey , for the Applicant
DATE HEARD: October 11, 2011
E N D O R S E M E N T
[ 1 ] The parties appeared before me today to clarify the terms of the amendment of the Restraint and Management Order for 498 Eastern Avenue. On December 14, 2011, I issued a decision and reasons with respect to the mortgage remedies available to the applicant in the context of the property that is subject to a Restraint and Management Order of this Court ( 2011 ONSC 7462 ). My decision amended the terms of the existing Order.
[ 2 ] The Applicant and the Respondent Crown sought clarification of the terms of the amended order.
[ 3 ] In light of the submissions of counsel for the applicant and the respondent, I have concluded that the wording of the amendment set out in my December 14, 2011 decision is not appropriate. It will be changed to reflect the following:
Regarding paragraph 13(d) : In my original decision I ordered that the SPMD permit the mortgagee to take joint possession of the property if authorized by the court. I accept that this would lead to an unacceptable lack of clarity as to the obligations of the SPMD and the mortgagee. The paragraph therefore should read as follows: “The SPMD shall facilitate such access to the property by Am-Stat as is reasonably necessary for Am-Stat to pursue its mortgage enforcement remedies.”
Regarding paragraph 19 : In my original decision I did not specifically state that power of sale was available as a remedy to Am-Stat. It was my intention that all enforcement remedies be available, including power of sale. So that there is no doubt, the paragraph will read as follows: “Am-Stat Corporation, the mortgagee of the property at 498 Eastern Avenue, Toronto is permitted to take proceedings to enforce its mortgage remedies, including foreclosure, power of sale, judicial sale and proceedings for possession of the property.”
Regarding paragraph 20 : In my original decision I ordered that all proceeds of any sale be paid into court and not paid out except with a further order of this Court. The Applicant argues that this is an unnecessary departure from the usual practice in power of sale or foreclosure actions where the mortgagee would be able to receive the mortgage principal, interest and collection costs from the proceeds of the sale without payment into court or accounting. The balance of the proceeds would then be paid to the subsequent encumbrancers or the mortgagor. In a judicial sale the proceeds would be paid into court. The Crown argues that the term should remain unchanged and that the proceeds should be paid into court. I have considered the original order and the nature of these proceedings. These are very unusual circumstances. This matter will not proceed in the same way as a typical mortgage enforcement proceeding. It may become necessary to have the proceeds paid into court. However, I have concluded that it is premature to make an order for payment into court. This issue can be addressed after the mortgagee chooses which remedy to pursue. Title cannot be transferred in any event without a further order of this Court and further amendment of the existing order for Restraint and Management of the property. In the circumstances, I will delete the term requiring payment of all proceeds into court and address that issue at a later stage.
In light of the unusual nature of these proceedings and the fact that they are part of an ongoing criminal application, it is convenient and in the best interests of the parties and the administration of justice that the proceedings with respect to the property not be fragmented. There may well be other issues of clarification that are required before the mortgagee can complete any sale of the property. In order to avoid fragmentation and to ensure consistency, all proceedings that affect the property at 498 Eastern Avenue should be dealt with by one judge. As I am currently seized with the forfeiture application in this matter, all proceedings should be brought before me. As the mortgage enforcement process develops, there may be further amendments needed to the existing order. To reflect this therefore, the following paragraph will be added to the order: “Any court proceedings with respect to this property must be brought in the Toronto Region and must be before Justice Forestell unless another judge becomes seized of the forfeiture hearing with respect to the property, in which case all proceedings should be brought before that judge. All notice must be served in accordance with paragraph 15 of this order.”
[ 4 ] This endorsement should form an addendum to the Reasons in this case issued on December 14, 2011.
[ 5 ] I make no costs order with respect to today’s appearance.
Forestell J.
DATE: January 16, 2011