Court File and Parties

COURT FILE NO.: CV-15-00535543 DATE HEARD: 20160720 ENDORSEMENT RELEASED: 20160822

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Scotia Mortgage Corporation v. Boris Broz

BEFORE: Master B. McAfee

COUNSEL: C. Kennedy, for the Moving Party, the Plaintiff, Scotia Mortgage Corporation B. Broz, in Person, Responding Party, the Defendant

REASONS FOR DECISION

[1] This is a motion brought by the plaintiff for summary judgment. The plaintiff seeks an order that the defendant pay the amounts owing under the mortgage and possession of the property. The defendant opposes the motion.

[2] The defendant raised an issue concerning the plaintiff’s reply affidavit that was delivered late, contrary to my timetabling order of June 14, 2016. Plaintiff’s counsel agreed to proceed with the motion without the late material and did not wish to seek an adjournment of the motion.

[3] The plaintiff’s claim is with respect to a mortgage that:

a. is between the defendant as mortgagor and Maple Trust Company as mortgagee; b. was registered on title to the property on December 15, 2005 as instrument number AT1010211; c. secures the principal sum of $337,301.25; and d. includes standard charge terms 200033.

[4] On or about November 1, 2011, Maple Trust Company and Scotia Mortgage Corporation were amalgamated under the name Scotia Mortgage Corporation.

[5] The mortgage was renewed from time to time.

[6] There is no issue that the defendant defaulted in payment of the semi-monthly payments. The last time that the mortgage was in good standing was September 1, 2014 (see affidavit of C. Tolciu, paras 17, 18). There is no issue that the last payment made by the defendant was June 16, 2015. There is also no issue that the mortgage matured on December 30, 2015 and has not been renewed or paid (see affidavit of C. Tolciu, para 19).

[7] On August 10, 2015, the plaintiff demanded payment of the amount owing under the mortgage. Notwithstanding the demand, no payment has been received from the defendant.

[8] The defendant raises an issue concerning the June 1, 2015 payment. While the payment on June 1, 2015, was not processed as it ought to have been (see defendant’s affidavit at paras 17-20), it is not the processing of one payment that is at issue. The mortgage has not been in good standing since September 1, 2014. No payments have been made since June 16, 2015. The mortgage matured and has not been paid.

[9] The defendant also raises an issue concerning the plaintiff’s policy on mortgage arrears. The defendant states that in or about January 2015, he attended at a branch of the plaintiff to make a general inquiry about the plaintiff’s policy on mortgage arrears. The defendant states that the branch communicated to him that a mortgage holder would be considered in default if the mortgage arrears were greater than 90 days. The defendant argues that he was never in arrears more than 90 days. The mortgage was governed by the standard charge terms and not any internal policy. To the extent that there is such an internal policy, the plaintiff is not obligated to follow that policy (R. v. Park, 2010 ABCA 248 (Alta.C.A.) at paras 19, 21 and 27). The standard charge terms also provide that any extensions do not prejudice the plaintiff (see section 19 of standard charge terms 200033). In any event, the mortgage has matured and has not been paid.

[10] The defendant also raises an issue with respect to mortgage insurance. The mortgage is a high-ratio mortgage. The plaintiff obtained mortgage default insurance through Genworth Financial Mortgage Insurance Company of Canada. This insurance protects lenders in the event of a borrower default, not the borrower. Production of the Genworth policy is not relevant to the determination of whether summary judgment ought to be granted.

[11] Genworth also offers a Homeowner Assistance Program to qualified borrowers experiencing temporary financial difficulties. Genworth did not provide assistance to the defendant under this program. This program is administered by Genworth and not the plaintiff. The fact that Genworth did not provide assistance to the defendant is also not relevant to the determination of whether summary judgment ought to be granted.

[12] Although the defendant has had medical and family issues, he has also had a sufficient opportunity to obtain alternative financing and pay the amount owing under the mortgage.

[13] The amount due under the mortgage is set out at exhibit E to the affidavit of C. Tolciu (see also para 22 of the affidavit of C. Tolciu). As of the date of the hearing of this motion, the amount due including per diem interest was $239,016.72. Since the hearing of this motion on July 22, 2016, 33 days have passed. The amount at paragraph 1 of the draft judgment is increased by per diem interest of $13.30 for 33 days for a total of $438.90. The amount due as of today’s date is $239,455.62.

[14] I am satisfied that in all of these circumstances there are no genuine issues requiring a trial (Masales v. Cole, 2016 ONSC 763 (Ont. S.C.J.) at paras 47-54).

[15] I am also granting the writ of possession as requested by the plaintiff (Prudential Assurance Co. (Trustee of) v. 90 Eglinton Ltd. Partnership (1994), 18 O.R. (3d) 201 (Gen.Div.Com.List) at para 14). On the motion, the defendant confirmed that he was the only person in actual possession of the property (see also plaintiff’s affidavit, para 3).

[16] The plaintiff seeks costs on a substantial indemnity basis in accordance with the terms of the mortgage and seeks the all inclusive sum of $16,954.96 less 2 hours of time relating to the reply affidavit that was not considered on the motion. In my view, the all-inclusive sum of $15,000.00 is a fair and reasonable amount that the defendant could expect to pay for costs in all of the circumstances of this matter including the costs of two adjournments of this motion at the request of the defendant.

[17] Order to go in form of the draft judgment as amended. I have signed the original judgment as amended.

Master B. McAfee

DATE: August 22, 2016