SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-15-1811-00
DATE: 2015 09 10
Parties
RE: CANADIAN WESTERN TRUST COMPANY as trustee for RRSP NO. 10093940, CANADIAN WESTERN TRUST COMPANY as trustee for RRSP No. 10083934 and SPRINGVIEW ENTERPRISES INC.
Plaintiffs
- AND -
WILLIAM KHOURI also known as WILLIAM ANTHONY KHOURI, NANCY NAKHLE KHOURI also known as NANCY KHOURI, also known as NANCY NAKHLE CHAAYA, 1884524 ONTARIO INC. operating as HI TECH PRO and 2430961 ONTARIO INC. operating as HI TECH PRO
Defendants
BEFORE: FAIRBURN J.
COUNSEL: Carmine Scalzi, for the Plaintiffs
Alex Flesias, for the Defendant Nancy Khouri
HEARD: September 10, 2015
ENDORSEMENT
[1] The applicant, Nancy Khouri, brings an urgent motion to set aside the default judgment of Edwards J., dated July 28, 2015, and to set aside the noting in default of Ms. Khouri. She also seeks an order staying the enforcement or execution of the writ of possession in default judgment.
[2] Ms. Khouri lives at 947 Pine Valley Circle, Mississauga. She resides there with her three children. I was informed by counsel that she also resides with her husband. Ms. Khouri and her husband were provided a mortgage by the respondent in this application. That mortgage fell into default in October 2014. The mortgagee made efforts to receive payment. Ultimately, on April 15, 2015 a statement of claim issued. On July 28, 2015, judgment was obtained. I have reviewed the order of Edwards J. It requires the defendants, William Khouri and Nancy Khouri, to pay the plaintiff a total amount of $266, 302.90, commencing on July 28, 2015. This amount was broken down as $212,627.41 which is the amount of the mortgage and $53,675.50 which is the amount of debt otherwise owing.
[3] The plaintiffs [respondent on this motion] obtained a writ of possession shortly thereafter. I understand that the sheriff executed the writ on August 20, 2015. The applicant on this motion takes the position that she first learned of the difficulty with the mortgage at the time she was removed by the Sherriff from her residence on August 20th.
[4] While there is no agreement over how it came to be, by September 2, 2015 the applicant and her family had returned to the subject residence. The mortgagee says that they broke the locks and went back in. Counsel for Ms. Khouri takes the position that the Sheriff allowed them to return to the subject premises.
[5] In any event, it is common ground that the Khouri family is now residing again in the residence. It is also common ground that Mr. Khouri, who is residing in the residence, knew about the mortgage problem all along.
[6] The applicant on this motion asks for the stay of one week. I understand that someone by the name of Terry Walman is prepared to advance the funds to pay off the mortgage. I’m told this could not have been accomplished earlier, as the amount owing has been a moving target. I am informed, and can see from the materials, that the payout statement for the second mortgage has fluctuated downwards. Now that the amount owing is less than what was at one point said to be $305,000, this amount can be accommodated by Mr. Walman. Apparently Mr. Walman is currently in Israel and will be returning shortly and can have the funds ready by next week at this time. I note that there is no documentary proof of this fact.
[7] I am not prepared to stay the effect of Justice Edwards order, or the writ of possession, on the bases of an assurance that Mr. Walman will advance the necessary funds. Even on the applicant’s own version of events, she acknowledges that she knew of Justice Edwards’ order since August 20, 2015. The proper steps would have been to move to have that order set aside. Her husband, who is also living in the residence, has known since last year that there was a problem with the mortgage. There has been plenty of time to act on this matter.
[8] While it is always difficult for a family to be evicted from their home, there are protections in place for mortgagees. The respondent on this motion appears to have acted with diligence throughout. This family has already been evicted from the residence for a 12-day period. They went back in on September 2nd. If Mr. Walman is prepared to advance the necessary funds, the respondent takes the position that they may repossess the property as soon as this has been done.
[9] As such, I order as follows:
The writ of possession remains operative and, if they do not go willingly, the Sheriff may move to have all individuals removed from the property with dispatch.
If the applicant on this motion is able to pay $212, 627.41 to the respondent on this motion by Friday September 18, 2015, the respondent will allow her to re-possess the property within 6 hours of confirmation of payment having been received.
Nothing in this order impacts on the balance of the Edwards J. order.
FAIRBURN J.
DATE: September 10, 2015[1]
COURT FILE NO.: CV-15-1811-00
DATE: 2015 09 10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RE: CANADIAN WESTERN TRUST COMPANY as trustee for RRSP NO. 10093940, CANADIAN WESTERN TRUST COMPANY as trustee for RRSP No. 10083934 and SPRINGVIEW ENTERPRISES INC.
Plaintiffs
- AND -
WILLIAM KHOURI also known as WILLIAM ANTHONY KHOURI, NANCY NAKHLE KHOURI also known as NANCY KHOURI, also known as NANCY NAKHLE CHAAYA, 1884524 ONTARIO INC. operating as HI TECH PRO and 2430961 ONTARIO INC. operating as HI TECH PRO
Defendants
COUNSEL: Carmine Scalzi, for the Plaintiffs
Alex Flesias, for the Defendant Nancy Khouri
ENDORSEMENT
FAIRBURN J
DATE: September 10, 2015
[^1]: Corrigendum – September 11, 2015: Note that para. 7 was changed to reflect the month of August and para. 9 has had the word “the” added.