Court File and Parties
COURT FILE NO.: 4558-14
DATE: 2015-08-07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Paul Ledroit, Plaintiff
AND:
Cindy Lou Wilson, Defendant
BEFORE: Heeney R.S.J.
COUNSEL: Andy Rady, for the Plaintiff
The Defendant, self-represented
HEARD: August 7, 2015 at London
ENDORSEMENT
[1] The defendant seeks a stay of the Writ of Possession that is scheduled to be executed on August 10, 2015, at which time she will be removed from her home by the Sheriff. She also seeks leave to hear this motion on short service. Given the imminent date of her eviction, and with the gracious consent of Mr. Rady, counsel for the plaintiff, leave is granted.
[2] The plaintiff brought a Motion for Summary Judgment on this mortgage action, seeking judgment for the amount due on his second mortgage and an order that, if that sum was not paid, the plaintiff was entitled to possession of the mortgaged premises. The motion was heard by Miller J. on May 26, 2015.
[3] The defendant conceded that the mortgage was in default and stated that the amount owing was $64,200. In the affidavit of Paul Siskind sworn April 23, 2015, filed in support of the plaintiff’s motion, he stated that, with interest and collection costs, the amount actually due on the mortgage was $76,697.53. However, in para. 19 of his affidavit, he stated that the plaintiff was prepared to waive any amount owing over and above the amount of $64,200 and interest from December 22, 2014 at 12% per annum.
[4] Judgment was granted by a written endorsement of Miller J. on May 26, 2015, in the following terms:
The plaintiff is awarded judgment in the amount of $64,200 to be paid by the defendant within 60 days;
If the plaintiff does not pay that sum within 60 days, the plaintiff shall be entitled to take possession of the premises.
[5] Miller J. did not award interest from December 22, 2014 as requested, nor did he make any order as to costs. The presumption, therefore, is that no costs were awarded. The judgment, as issued and entered, makes no provision for post-judgment interest.
[6] I am advised that Mr. Rady wrote to Justice Miller after the fact requesting that he entertain submissions as to costs. While that is highly unusual, the request was nevertheless acceded to. I am advised that counsel for the plaintiff forwarded costs submissions by email on June 11, 2015, although there are no costs submissions in the court file and there is no entry in the Case History that submissions were filed. What is clear is that no costs have been awarded to date.
[7] The defendant has obtained a mortgage commitment from the Mortgage Group for a sum sufficient to cover the judgment on the plaintiff’s second mortgage and outstanding property taxes, with an outside closing date of August 10, 2015. She testified that the funds were available to her to close earlier, and she contacted Mr. Siskind on July 23 to confirm the amount owing. According to her evidence, he told her that she had to pay $68,780.19 on the mortgage plus $9,748.73 in collection costs, for a total of $78,528.92, in order to obtain a discharge of the mortgage. These figures are reflected in the Mortgage Statement issued by the plaintiff dated July 24, 2015, and substantially exceed the funds that the defendant has available to her.
[8] In effect, the plaintiff is demanding interest and collection costs that he already waived, as well as costs of this proceeding that have never been awarded. That creates an injustice that this court is prepared to relieve against.
[9] The amount due on the mortgage has been judicially determined to be $64,200. That judgment has not been appealed and the time for so doing has now expired. Upon payment of that sum, the defendant is entitled to a discharge.
[10] An interim order will go pursuant to s. 106 of the Courts of Justice Act that enforcement of the Writ of Possession is stayed. The matter is adjourned to motions court, August 25, 2015, at 10:00 a.m. for an update. The stay shall expire on that date unless the presiding judge orders otherwise. In the meantime, if the defendant pays to the plaintiff the sum of $64,200, she shall be entitled to receive a discharge of the mortgage, and the Writ of Possession shall thereupon be vacated.
“T. A. Heeney R.S.J.”
Regional Senior Justice T. A. Heeney
Date: August 7, 2015