ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-434149
DATE: 20121115
BETWEEN:
AMBER LIGHTING LIMITED Plaintiff – and – AIPO INTERNATIONAL GROUP INC., RADIKA MAHADEO and 1805744 ONTARIO INC. Defendants
Patrick Di Monte, for the Plaintiff
Oblubunmi Ogunniyi, for the Defendants
HEARD: October 24, 2012
Ellen Macdonald J.
REASONS FOR JUDGMENT
Factual Background
[ 1 ] Amber Lighting Limited (“Amber”) is seeking a claim based on a Mortgage/Charge (“Mortgage”) of land between Amber, as charge, and the defendants, AIPO International Group Inc. (“AIPO”), as chargor, and Radika Mahadeo, as guarantor.
[ 2 ] The mortgage was registered April 5, 2011 and nothing has been paid on this mortgage.
[ 3 ] The mortgage secures the principal amount of $1,200,000. It was registered against a property municipally known as 1521 Queen Street West in Toronto. The mortgage provides, in addition to other things, that it shall be collateralized against other properties as follows:
5 Bethridge Avenue, Toronto, Ontario
380 Velmar Drive, Vaughan, Ontario
1935 Weston Road, Toronto, Ontario
[ 4 ] The Mortgage did not provide for any specific amount as monthly payments.
[ 5 ] The Mortgage became due in April 2012, and on May 27, 2011, Amber served a notice of sale under mortgage. Amber attempted but failed to gain entry or possession of the property, it being its intention to sell the property.
The Parties
[ 6 ] AIPO is the mortgagor of the property on 1521 Queen Street West, Toronto. Amber is the third mortgagee on this property.
[ 7 ] The Defendant Radika Mahadeo is the operating mind shareholder, director, and officer of AIPO. She is also the guarantor on the mortgage registered in the City of Toronto Land Registry. For purposes of this motion, the Defendant 1805744 Ontario Inc. is an Ontario company and it has mortgaged a property to Amber on a property known municipally as 1935 Weston Road, Toronto. This Weston Road property is not the subject to this particular motion and application.
The Issues
[ 8 ] AIPO went into default on its mortgage. A notice of sale under the Mortgages Act R.S.O. 1990, C.m.40 (“ Mortgage Act ”) , and pursuant to the standard charge terms of the mortgage, was issued and served On or about May 27, 2001.
[ 9 ] A statement of claim was issued, a statement of defence and counterclaim was delivered by AIPO, and a reply and defence to counterclaim was also delivered to Amber.
[ 10 ] The second mortgagee, Radika Mahadeo also issued a notice of sale under the Mortgage Act . The current balance on her mortgage, as of July 30, 2012, was the sum of $919,689.73, of which approximately $90,000 was comprised of property tax arrears that name her in full Radika Mahadeo to be paid to the City of Toronto.
[ 11 ] The rents from the commercial property were approximately $14,400 per month and the rents from the residential portion of the property was $36,400 per month, plus some money for food and the use of the laundromat. Once the rent was being paid by AIPO, the mortgagee Amber tried to obtain possession of the property and attorned the rents pursuant to the standard charge terms as mentioned above, but failed. The mortgage matured on April 5, 2012. No payments on this mortgage were ever paid. The mortgage advanced $838,000 which was authorized by AIPO. This mortgage was a private mortgage that was funded through a solicitor’s office namely, Romeo Finder, who reported the transactions on May 19, 2011, in order to comply with the Mortgage Brokerage Lenders Administrators Act , 2006 , O.Reg. 286/11, and the Rules and Regulations of the Law Society of Upper Canada.
Conclusion
[ 12 ] Having reviewed the history of the transactions affecting the parties in this motion, I have concluded that there is no viable defence to the notice of sale. Accordingly, relief shall go as requested and set out as follows:
(a) The application is dismissed with costs, and the request for an injunction is dismissed with costs on substantial indemnity basis;
(b) An order for possession of the premises municipally known as 1521 Queen Street West, Toronto, Ontario;
(c) An order that the commercial and residential tenants commence paying the September 1, 2012 rents to Amber;
(d) An order for: (1) complete and accurate rent roll and the status of the tenancies (including copies of any written leases and a summary of the oral leases), and (2) a direction to any government agency (ODSP, social assistance, or any other municipal, provincial or federal authority that subsidizes the rent for the residential tenants) to direct their payments to Amber;
(e) An order for a direction to all tenants, commercial and residential, that they are to pay their rent to Amber; and,
(f) An order to direct the Land Registrar of Toronto to remove the no dealing indicator on 1521 Queen Street West, Toronto, Ontario, if not already done so.
[ 13 ] In respect of the costs disposition by the Honourable Justice Murray, these costs were not paid and for the sake of clarity, I order that they be paid forthwith.
[ 14 ] I await submissions respecting costs of this application.
Ellen Macdonald J.
Released: November 15, 2012
COURT FILE NO.: CV-11-434149
DATE: 20121115
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
AMBER LIGHTING LIMITED Plaintiff – and – AIPO INTERNATIONAL GROUP INC., RADIKA MAHADEO and 1805744 ONTARIO INC. Defendants
REASONS FOR JUDGMENT
Ellen Macdonald J.