Court File and Parties
Court File No.: CV-19-1068 Date: 20200807 Superior Court of Justice - Ontario
Re: 2153274 Ontario Inc., Plaintiff And: 2564308 Ontario Inc. and Salvo Salvatore Casano, Defendants
Before: Justice C. Boswell
Counsel: Kristine Holder for the Plaintiff Salvo Salvatore Casano in person and purportedly on behalf of 2564308 Ontario Inc.
Heard: Motion in Writing
Endorsement
Background
1The plaintiff holds a mortgage over lands owned by the corporate defendant. Mr. Casano is a guarantor. The mortgage went into default in February 2019. The default continues.
2The plaintiff obtained default judgment for payment of the outstanding balance on the mortgage ($400,546.59) and possession of the mortgaged premises on August 15, 2019. The judgment was not appealed.
3The plaintiff obtained a writ of possession and scheduled an eviction for October 15, 2019.
4On October 1, 2019 Mr. Casano walked in an ex parte motion seeking to stay the execution of the writ of possession. I ordered him to serve his motion on the plaintiff and put the matter over a week.
5On October 8, 2019 Justice Casullo granted the defendants a 30 day stay on enforcement of the writ of execution to permit the defendants an opportunity to refinance. Although certain discussions did ensue between counsel for the plaintiff and counsel for the defendants, no refinancing occurred. The mortgage remained in default. A new eviction date was scheduled for December 10, 2019.
6On December 2, 2019, the defendants emailed a motion to the plaintiff’s counsel, returnable in court the next day. The defendants were seeking a further stay of enforcement of the plaintiff’s writ of possession.
7The motion actually proceeded on December 4, 2019. On that date, Justice Casullo granted a further 30 day stay of enforcement. Again, the purpose of the stay was to permit the defendants to obtain refinancing.
8No refinancing took place and a third date for eviction was scheduled, this time for January 21, 2020.
9On January 9, 2020, the defendants obtained a further extension order from Justice Casullo, this time extending the stay of enforcement for 45 days. Casullo J. also reduced the fees charged by the plaintiffs by $30,000.
10The plaintiffs say they were not made aware of any motion proceeding in court on January 9, 2020. They brought a motion returnable January 28, 2020 to vacate or amend the order of January 9, 2020. On January 28, 2020 Justice Casullo ordered that the defendants were to pay the sum of $415,000 in full satisfaction of the amounts owing to the plaintiff on or before February 24, 2020 at 5:00 p.m., failing which the full amount owing on the mortgage, $441,380.71 would become due and owing.
11The defendants did not pay $415,000, or anything, to the plaintiff by February 24, 2020. In fact, the mortgage remains wholly unsatisfied to this date.
12On March 19, 2020, the Chief Justice of this court ordered a moratorium on residential evictions during the COVID-19 pandemic. That moratorium was lifted effective August 1, 2020.
13The plaintiffs have now scheduled an eviction to occur on August 12, 2020.
14The defendants moved, ex parte, on August 5, 2020 for an order staying the enforcement of the eviction for 30 days to permit them to refinance and to dispute the amounts claimed by the plaintiff.
15On August 5, 2020 I ordered the defendants to serve their motion on the plaintiff forthwith and to provide me with additional materials. I provided that the plaintiff would have until August 10, 2020 to file a response to the defendants’ motion. I received a comprehensive responding affidavit on August 6, 2020.
Analysis
16The plaintiff is strongly against any further extension on enforcement being granted. I do not blame them. They have been lawfully entitled to possession of the mortgaged premises for a year. They have been thwarted and frustrated by repeated short-served motions or motions that have not been served on them at all.
17The defendants have complained for a year about the balance claimed by the plaintiff but have taken no steps to dispute that balance. They did not defend the claim; did not move to set aside the judgment; and did not appeal Justice Casullo’s order of January 28, 2020 which fixed the amount then outstanding. There will be further interest and fees since that time.
18The defendants have long since lost their credibility in terms of their refinancing efforts. The mortgage went into default in February 2019. It has continued in default for 19 months. The defendants have had possession of the mortgaged premises, without paying the mortgage for those 19 months.
19A further extension of the plaintiff’s lawful enforcement of its judgment would serve to bring the reputation of this court into disrepute.
Disposition
20The defendants’ motion is denied. The eviction will proceed as scheduled.
C. Boswell J.
Date: August 07, 2020