SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-467727

DATE: 20140613

RE: Frank Fernandez and Anna Maria Fernandez, Plaintiffs

AND:

Unique Auto Collision Network Solutions Corp., Cansom Holdings Inc., Peter Collia, Giacomo Collia, and Antonitta Collia, Defendants

BEFORE: Carole J. Brown J.

COUNSEL: Yusaf Barre representing the Moving Party Defendants, Unique Auto Collision Network Solution Corp. and Cansom Holdings

Miranda Spence, for the Responding Party Plaintiffs

HEARD: June 13, 2014

ENDORSEMENT

[1] The defendants, Unique Auto Collision Network Solution Corp. and Cansom Holdings ("the corporate defendants") bring this motion to set aside the order of Master Glustein dated May 5, 2014, granting leave to the plaintiffs to issue a writ of possession as regards to two properties owned by the defendant for which the plaintiffs hold take-back mortgages.

[2] The corporate defendants argue that the order was obtained without notice and on misleading and misrepresented facts.

[3] The plaintiffs, Mr. and Mrs. Fernandez, are mortgagees of two properties sold to the defendants in 2009 with take-back mortgages. Due to the defendants' failure to repay the mortgages, the plaintiffs brought an action on November 14, 2012. The other named defendants are subsequent mortgagees who have served Notices to Redeem.

[4] Following numerous court appearances, orders and appeals as regards this mortgage action brought against the corporate defendants, a motion for summary judgment was heard and granted by Firestone J on June 10, 2013. Justice Firestone ordered a reference to the master for purposes of determining the amounts owing on the two subject mortgages. Justice Firestone further ordered that upon confirmation of the reference report, the defendants were to pay to the plaintiffs the amounts owing, upon which payments, the defendants were to convey the mortgaged properties to the defendants.

[5] Master Graham presided over the hearing of the reference, at which both Mr. Barre, on behalf of the corporate defendants, and counsel for the plaintiff were present. Following a hearing of the reference, Master Graham determined that the amounts owing on the two mortgages were $307,876.62 and $180,444.36. Those amounts remain outstanding.

[6] On May 5, 2014, Master Glustein granted the motion for leave to issue writs of possession on a motion without notice as is permitted pursuant to Rule 60.10 of the Rules of Civil Procedure ("the Rules").

[7] The defendant now moves for an order setting aside or varying the order of Master Glustein or, in the alternative, an order requiring the plaintiffs to discharge the mortgage after payment by the defendants into court of the amounts owing and to grant a stay of the order for leave to issue writs of possession.

[8] The defendants moved before the Court of Appeal for leave to appeal and an extension of time for appeal of the Master’s reference report and for a stay of enforcement of the judgment and writs of possession. The motion was heard on June 9, 2014 and the decision rendered on June 10, 2014. Madam Justice Pardu refused to grant leave to appeal and declined to order a stay of the writs of possession, indicating that the defendants should have moved before this Court pursuant to Rule 37.14 for the remedy sought.

[9] The defendants are here before the court today seeking said order.

[10] The defendants further state that a motion is being heard on June 26, 2014, before the Divisional Court, such that the writs of possession should be stayed. There is no evidence before me to support this contention and no materials have been served or filed as regard such a motion.

[11] The defendants state that the motion for leave to issue a writ of possession was brought without notice. This is permitted pursuant to Rule 60.10. The defendants state that the motion was based on misleading and misrepresented facts. There is no evidence before me to support this contention. The defendants admit that the monies are owing but state that they are ready and willing to pay the monies owed. They proffer a proposal for a mortgage for $350,000 dated June 3, 2013, with closing date of June 21, 2013 from a Brijen Mortgages in Thornhill, Ontario. There is no evidence that the monies are still available to the defendants. Moreover, the amount would not cover the amounts outstanding. There is no other evidence to indicate that the corporate defendants have sufficient funds to pay the amounts outstanding.

[12] I have reviewed the motion materials before me, including the materials of the corporate defendants, which contain the affidavit of Mr. Barre and the orders of the various courts from August 24, 2011 to June 10, 2014. I have also reviewed the motion materials of the plaintiffs and their book of authorities.

[13] I find, based on all of the foregoing, that there is no evidence before me on which to grant the defendants' motion. The motion is dismissed.

[14] I order costs of this motion payable by the corporate defendants to the plaintiffs in the amount of $1500.

Carole J. Brown J.

Date: June 13, 2014