Court File and Parties
Court File No.: CV-17-00581006 Motion Heard: 20181015 Superior Court of Justice - Ontario
Re: Secure Capital MIC Inc., Plaintiff And: David Cheyne Heath and Dana Lynn Spendlove, Defendants
Before: Master B. McAfee
Counsel: Wendy Greenspoon-Soer, Counsel for the Plaintiff David Cheyne Heath, Defendant, In Person
Heard: October 15, 2018
Reasons for Decision
[1] This is a motion brought by the plaintiff Secure Capital MIC Inc. (the plaintiff) for leave to issue a writ of possession pursuant to Rule 60.10(1) of the Rules of Civil Procedure.
[2] As a preliminary issue, the defendant David Cheyne Heath (Mr. Heath) seeks a further adjournment. Mr. Heath requests an additional four days to file responding material. Mr. Heath submits that he requires additional time due to a disorder. There is no evidence before me in support of his submission in this regard. Mr. Heath was permitted to provide the court with a copy of a psychoeducational assessment report and a copy of a prescription that he wished to rely upon. The report is dated August 10, 2010, and is not current. Only pages 1 and 13 of the report were provided.
[3] On September 20, 2018, I granted Mr. Heath an adjournment to permit him to file responding material. The previous adjournment was granted to permit “one final opportunity to respond to this motion.” As a previous adjournment had been granted to Mr. Heath and having regard to the history of this matter, I declined to grant a further adjournment. In addition, the material provided to the court by Mr. Heath did not satisfy me that a further adjournment was reasonable in all of these circumstances.
[4] On October 6, 2017, judgment for possession against the defendants was signed in respect of property municipally known as 238 Roselawn Avenue, Toronto (the property).
[5] On January 25, 2018, on consent, Justice Firestone ordered the defendants to pay all amounts due under the mortgage including principal, arrears, interest and legal costs on or before March 1, 2018, without prejudice to the defendants’ ability to make a good faith dispute over those amounts. The plaintiff was ordered not to continue with enforcement proceedings until March 1, 2018. The order also provided that should the defendants not pay all amounts due by March 1, 2018, the plaintiff will continue enforcement proceedings and the defendants will be prohibited from bringing any further motions to delay the enforcement of the default judgment.
[6] The defendants did not pay the amounts due by March 1, 2018, or make any partial payments.
[7] On March 27, 2018, in Civil Practice Court, Justice Favreau scheduled a motion to be brought by the defendants for an extension of the time in Justice Firestone’s order to June 29, 2018. Justice Favreau scheduled the motion for May 9, 2018. The defendants were urged to seek legal advice at the earliest opportunity. The defendants did not proceed with the motion.
[8] On July 23, 2018, the plaintiff’s motion in writing and without notice for leave to issue a writ of possession proceeded before Master McGraw. Given that the record indicated that the defendants may be bringing a motion to set aside enforcement proceedings, Master McGraw adjourned the motion sine die without prejudice to the plaintiff’s right to bring a regular motion on notice to the defendants.
[9] On August 28, 2018, plaintiff’s counsel and Mr. Heath attended before Master McGraw on a motion for leave to issue a writ of possession. Master McGraw was of the view that the matter must be spoken to before a Judge given that Justice Favreau granted the defendants the right to bring a motion. Master McGraw ordered the defendants to schedule an attendance before a Judge in Civil Practice Court by September 7, 2018.
[10] Although Mr. Heath did contact the court office, he did not schedule an attendance in Civil Practice Court by September 7, 2018. At the return of the within motion on October 15, 2018, Mr. Heath advised the court that during the morning of October 15, 2018, he scheduled an attendance in Civil Practice Court for October 29, 2018.
[11] Judgment for possession was granted over one year ago. There has been no appeal from the judgment.
[12] The plaintiff’s mortgage is a second mortgage on the property. The second mortgage matured and came due on March 1, 2018. The defendants have also defaulted on their first mortgage prior to June 2017. The plaintiff has been making the first mortgage payments of approximately $2,700.00 per month to keep the first mortgage in good standing. The plaintiff has paid over $40,000.00 towards the first mortgage.
[13] The defendants have not complied with any deadlines ordered by this court to date.
[14] To the extent that Mr. Heath alleges fraud and bad faith on the part of the plaintiff in his oral submissions, there is no evidence before me in that regard.
[15] Although the Property Management and Inspection Report dated May 28, 2018, indicates that there was a period of time when no one may have been at the property, on the motion the plaintiff accepted Mr. Heath’s acknowledgement that he resides at the property. I am satisfied that all persons in actual possession of the property have received sufficient notice of the proceeding to have enabled them to apply to the court for relief.
[16] The motion is granted. Leave to issue is writ of possession with respect to the property is granted. I have signed the original order, as amended.