Court File and Parties

COURT FILE NO.: CV-15-531994 DATE: 20160419 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

EQUITABLE BANK Plaintiff – and – ERIK BOSTROM Defendant

Counsel: H. W. Reininger, for the Plaintiff Erik Bostrom, in person

HEARD: March 14, 2016

G. DOW, J.

REASONS FOR DECISION

[1] The plaintiff, Equitable Bank seeks summary judgment for the balance of a $352,000 mortgage entered into between it and the defendant, Erik Bostrom, following the defendant’s failure to pay them the $1,680.50 monthly amount due on April 1, 2015. The mortgage pertains to a property owned by the defendant in the Dundas and Dufferin area of Toronto with an interest rate at prime plus one percent. The mortgage is for five years beginning August 1, 2013 and concluding July 1, 2018.

[2] The defendant opposes the plaintiff’s motion on the basis he has substantially paid what is owed to the plaintiff and wishes to return the mortgage into good standing.

Background

[3] One of the reasons the plaintiff commenced this action was it became aware the defendant had accumulated unpaid taxes to the City of Toronto as a result of a Provincial Offences Act convictions which the City of Toronto both converted to a judgment and added to the defendant’s tax liability. The defendant opposed this duplication of collection efforts and the matter came before me on August 14, 2015 with my Reasons released September 11, 2015. I restricted the City of Toronto to the less onerous method of collection which appeared to me to provide three years under the City of Toronto Act, R.S.O. 2006 c.11 for Erik Bostrom to resolve that claim and before enforcement proceedings were permitted.

[4] The defendant, to his credit, appears to have entered into a payment plan with the City of Toronto although he would be wise to request something in writing from them or, at least, confirm to them in writing his understanding of the arrangement made.

[5] In submissions by counsel for the plaintiff, it was acknowledged that despite the defendant failing to make the requisite $1,680.50 payment on the first of the month starting April 1, 2015, the following payments had been made by the defendant:

• June 29, 2015: $9,000
• August 5, 2015: $2,300
• August 31, 2015: $2,100
• October 1, 2015: $2,100
• November 3, 2015: $2,100
• December 1, 2015: $2,100
• January 7, 2016: $2,100
• Total: $21,800

[6] This compares to the 12 mortgage payments due from April 1, 2015 until March 1, 2016 which, had the defendant paid, same would total only $20,166.

[7] The defendant advises the initial $9,000 payment was an attempt to bring the mortgage into good standing and the subsequent $2,100 payments are his efforts on a rounded basis to pay the amount owed each month, which was apparently adjusted to $2,068 after a change in the prime interest rate and thus his monthly obligation.

Analysis

[8] Counsel for the plaintiff agreed that Mortgages Act, R.S.O. 1990, c.M.40 permits the defendant to avoid judgment if he brings the mortgage into good standing. Unfortunately, that calculation was not available before me. There is also the Court’s discretionary power to order the plaintiff provide the defendant with a statement setting out its position of what amounts are required to be paid, if anything, for principal and interest, less payments made to bring the mortgage into good standing.

[9] In this matter, it would appear the defendant, as mortgagee, has demonstrated by the payments made not only a willingness but the ability to make the necessary monthly mortgage payments. As a result, it is my view, as a matter of equity, that the defendant is entitled to the opportunity to put the mortgage back into good standing.

Costs

[10] The plaintiff filed a Bill of Costs setting out a substantial indemnity claim totaling $13,348 inclusive of fees, HST and disbursements using a rate of $450 an hour for counsel fees and submitting this was provided for in a term of the standard charge.

[11] For partial indemnity, the amount demanded was reduced to $7,800 for fees, and used $300 per hour for counsel fees. Counsel acknowledged further reductions should be made for the portion dealing with drafting of pleadings and the actual amount of time required to argue this motion. The net claim became $6,150 plus disbursements of $127 or $6,277 plus HST ($816.01) for a total of $7,093.01.

[12] Erik Bostrom opposed the request for full costs and submitted the misunderstanding between the parties was mutual and thus costs should be reduced by 50 percent. My impression is the defendant now better understands his obligation and how to deal with this matter. My expectation is that he will do so in a courteous and cooperative manner. As a result, I am prepared to exercise the discretion granted to me under section 131 of the Courts of Justice Act, R.S.O. 1990, c.C.43 and Rule 57 of the Rules of Civil Procedure and reduce the plaintiff’s entitlement to costs to $6,675 inclusive of fees, HST and disbursements.

Conclusion

[13] As a result, the following order is made:

a) the plaintiff will provide the defendant within 45 days of the date of release of these Reasons its statement of what is required to be paid to bring the existing mortgage into good standing. That is, what amount or amounts ought to have been paid on the first of each month since April 1, 2015, the amount of interest that attaches to each payment it was entitled to receive from that date, any claim for three months’ penalty interest pursuant to section 17 of the Mortgages Act and the calculation of any other amounts it seeks to recover with specific reference to the precise section of the standard charge terms upon which it relies for each amount claimed. The statement shall also contain credit for the payments made by the defendant with the same rate of interest it seeks from the defendant to be applied to the payments made from the date the payments were made so as to reflect the anticipated net amount owing by the defendant to the plaintiff;

b) the defendant shall resume making the requisite mortgage payments on the first day of the month effective April 1, 2016 by delivering funds (or arranging for the transfer of funds) to the plaintiff;

c) any amounts contained in the statement of good standing shall be paid to the plaintiff within 60 days of delivery of this statement to the defendant by ordinary mail at the municipal address of the property and to the email address the defendant provided plaintiff’s counsel and the Court during submissions;

d) this motion is otherwise adjourned sine die (which means without a return date) but upon any default by the defendant it is returnable with 15 days’ notice to him;

e) the legal costs of the plaintiff are assessed at $6,675 inclusive of fees, HST and disbursements and are payable by the defendant within 90 days of the date of this order;

f) this order is not required to be approved as to its form and content by the defendant but is to be submitted to me for review and signing with proof of service on the defendant of the draft submitted to me.

Mr. Justice G. Dow Released: April 19, 2016