Court File and Parties

Court File No.: CV-20-0082 Date: 2020/12/22 Ontario Superior Court of Justice

Between: New Haven Mortgage Corporation, Harjinder Singh and Gurpal Singh, Plaintiffs – and – Olalekan Biobasholuwa (also known as Olalekan Joseph Biobasholuwa) and Susan Biobasholuwa, Defendants

Counsel: Jennifer Croswell, for the Plaintiffs Defendant, Susan Biobasholuwa, Self-represented Defendant, Olalekan Biobasholuwa, Did Not Appear

Heard: November 24, 2020 by Zoom at Belleville

Reasons for Decision on Summary Judgement Motion

Introduction

[1] This was a motion for summary judgement brought by the Plaintiffs in relation to two charges. Only the Plaintiffs provided written materials, on the summary judgement motion. The Defendant, Olalekan Biobasholuwa, did not appear. The Defendant, Susan Biobasholuwa, did appear, although did not file any materials.

[2] According to Susan Biobasholuwa, a family matter proceeding was started by Olalekan Biobasholuwa in Family Court in Ottawa in 2018 and no one appeared. Apparently, nothing further happened with the family law matter. Nothing was filed as of December 11, 2020. A letter of explanation was provided by Mr. Paul Jakubiak, counsel for Susan Biobasholuwa. A reply affidavit was provided by the Plaintiffs counsel.

Factual Background

[3] This action arises as a result of a default under a charge/mortgage of land. (“Charge”) For the purposes of this judgement the Charge registered against either property will be referred to as the Charge.

[4] Olalekan Biobasholuwa and Susan Biobasholuwa are the registered owners of the property known municipally as 3212 Uplands Drive, Ottawa, Ontario, K1V 0C5 and legally as: Unit 84, Level 1, Carleton Condominium Place No. 203; Block AA, Plan M157, as in Schedule "A" of Declaration LT277999 Ottawa; (“3212 Uplands Drive”).

[5] Olalekan Biobasholuwa is the legal and registered owner of the property known municipally as 3010 Uplands Drive, Ottawa, Ontario, K1V 0A5 and legally as: Parcel 0-15, Section 4M-213, Part Block O, Plan 4M-213, Part 9 & 10, 4R3315, subject to and together with as in LT250796; subject to LT219178 Ottawa/Gloucester; ("3010 Uplands Drive").

[6] On April 4, 2018, the Defendants granted a charge ("the Charge") to New Haven Mortgage Corporation, Harjinder Singh and Gurpal Singh as Mortgagees, over 3212 Uplands Drive. The Charge was registered in the Land Registry Office for the Land Titles Division of Ottawa on April 4, 2018 against 3212 Uplands Drive as Instrument No. OC1983421 under P.I.N. 15203-0084 LT.

[7] A separate charge was also granted as against 3010 Uplands Drive by the Defendants, Olalekan Biobasholuwa as Mortgagor and Susan Biobasholuwa as Consenting Spouse and Guarantor. This was a first mortgage against the property. The Charge was registered in the Land Registry Office for the Land Titles Division of Ottawa on April 4, 2018 against 3010 Uplands Drive as Instrument No. OC1983423 under P.I.N. 04056-0026 LT.

[8] Both charges secured the same indebtedness. The Charge secured an indebtedness of the principal sum of $189,500, plus interest at 8.99% per annum. The term of the Charge was 1 year, maturing on April 1, 2019, after which time the full amount owing would be due and payable. The Charge was a second mortgage on 3212 Uplands Drive, behind a first mortgage in favour of Scotia Mortgage Corporation.

[9] Pursuant to the above-noted Charges, the mortgagors agreed to be bound by the provisions of the Standard Charge Terms filed as number 200433. The Charges were renewed for a period of 1 year and matured on April 1, 2020. The mortgagors defaulted on the Charges on March 1, 2020. On April 1, 2020, the Charges matured. No payments were received on the Charges after February 1, 2020.

[10] The missed March 1, 2020 payment was a breach of the terms of the Charge. The Defendants also failed to pay out the Charges at maturity, which was also a breach of the terms of the Charge. On April 14, 2020, a Statement of Claim was issued and the Defendants were served on April 15, 2020. Notices of Sale were sent by the law firm of Rose & Rose on April 28, 2020. The Notices of Sale expired June 7, 2020.

[11] A Statement of Defence was filed by the Defendants.

Issue

Issue #1: Should Summary Judgement be Granted Against the Defendants for the Claims set out in the Notice of Motion?

Plaintiffs Position

[12] The Plaintiffs argue that the two charges were properly granted with all of the Defendants signing the documentation. The mortgages were subsequently registered, and payments were made. The Charges were renewed after one year for a further one-year term ending on April 1, 2020.

[13] The last payment made on the Charges was February 1, 2020. When the Charges matured on April 1, 2020, they were not paid out. No monies have been received since that date.

[14] The Plaintiffs argue that there is no genuine issue for trial, notwithstanding the fact that a Statement of Defence has been served and filed. They argue that the Defendants served no materials on the motion for summary judgement.

Defendants Position

[15] Olalekan Biobasholuwa did not appear and did not file any materials; therefore, he had no position on the motion.

[16] Susan Biobasholuwa did not file any materials on the motion, although she did appear and did say that she was trying to refinance the property but she was unable to because either she was a part owner of the property at 3212 Uplands Drive and that she did not own the property at 3010 Uplands Drive, but she was only the spouse and guarantor.

Analysis

[17] Rule 20 of the Rules of Civil Procedure set out when a party can apply for summary judgement.

[18] Rule 20.02(2) specifically states that a responding party may not rely on their pleadings but must provide specific facts by way of affidavit showing there is a genuine issue requiring trial. Neither of the Defendants have provided affidavit material showing that there is a genuine issue for trial.

[19] The leading case in the area of summary judgment is Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. The Court held that where there is no genuine issue requiring a trial and that the Court is able to reach a fair and just determination of the merits on the motion for summary judgment that summary judgement should be granted.

[20] When Susan Biobasholuwa appeared on the motion, she advised that she was living at 3010 Uplands Drive. The property at 3212 Uplands Drive was rented as a residential unit.

[21] Ms. Biobasholuwa indicated that she and her husband had separated in 2017.

[22] She stated that she was unemployed due to COVID-19 and was presently receiving benefits of approximately $2,000 per month.

[23] She advised the Court that she could not get the properties refinanced because the property at 3212 Uplands Drive was in Olalekan Biobasholuwa’s name and her own name, while the property at 3010 Uplands Drive was only in Olalekan Biobasholuwa’s name alone and that he was not cooperating with getting the properties refinanced.

[24] The evidence is clear that the Charges against both properties matured in April 2020 and have not been repaid.

[25] The evidence is also clear that the parties separated in July 2017, before these Charges were negotiated and advanced, in March or April 2018.

[26] It is settled law that summary judgement for possession should only be denied when a defendant provides coherent evidence by way of an organized set of facts which show that there is a genuine triable issue based on admissible evidence: Greymac Trust Co. v. Reid (1988), 21 C.P.C. (2d) 211 (Ont. Div. Ct.).

[27] The Court does not find that the Defendants have presented coherent evidence of an organized set of facts which show that there is a genuine triable issue based on admissible evidence: Greymac Trust Co.

[28] Based on a review of the Statement of Defence, the Court does not find that the Defendants have raised any triable issue based on admissible evidence in relation to the amount of principal and interest owed or for possession.

[29] The Court finds that there is no genuine issue for trial in relation to these matters.

[30] Save as set out later on in this decision, the Court is satisfied that the charges for various items including statement fees, and other fees are included as properly incurred amounts, as set out in the Charge and Standard Charge Terms.

[31] Therefore, there will be summary judgement for the Plaintiffs against both Defendants for the amount of $191,355.56. In addition, there will be accrued prejudgement interest from April 7, 2020 to December 22, 2020, 263 days at $49.54 a day, for a total of $13,029.02.

[32] Post judgement interest will accrue at the rate set out in the Charge of 8.99% per annum.

[33] In addition, the Plaintiffs will be entitled to a judgement for possession of the properties at 3212 and 3010 Uplands Drive, Ottawa, Ontario. The legal descriptions for the properties are as follows:

1. 3212 Uplands Drive, Ottawa, Ontario: Unit 84, Level 1, Carleton Condominium Place No. 203; Block AA, Plan M157, as in Schedule "A" of Declaration LT277999 Ottawa.
2. 3010 Uplands Drive, Ottawa, Ontario: Parcel 0-15, Section 4M-213, Part Block O, Plan 4M-213, Part 9 & 10, 4R3315, subject to and together with as in LT250796; subject to LT219178 Ottawa/Gloucester.

[34] The judgement for possession will be granted and effective as of January 4, 2021, taking into account the upcoming holiday season.

Writ of Possession

[35] The Plaintiffs in their motion for summary judgement seek to obtain a Writ of Possession for the subject properties.

[36] One of the properties is a residential rental property.

[37] Part of the materials filed on the motion for summary judgement include an assignment of rents for the 3212 Uplands Drive property. Therefore, the mortgagees were aware that this was a rental property.

[38] In the text, Marriott and Dunn Practice in Mortgage Remedies in Ontario at page 48-10, the authors wrote:

[Where the mortgage property is a “residential unit” as defined by the Residential Tenancies Act, the mortgagee may only obtain possession of the residential unit according to the provisions of the Residential Tenancies Act; s. 48(1). Also see ss. 48.10 & 48.14. This subsection substantially alters a mortgagee’s rights as they existed prior to passage of the Mortgages Amendment Act, 1991. Possession by way of an application pursuant to R. 60 of the Rules of Civil Procedure appears to be no longer possible. Execution of a writ of possession will be stayed pending the determination of a claim by a person who was not a party to the mortgagee’s proceedings that a residential tenancy exists: see Granville Savings & Mortgage Corp. v. Marresse, (unreported), Doc. No. 91-CQ-6370, September 27, 1995, McCombs J. (Gen.Div.).]

[39] Therefore, in this case, in relation to any residential unit under the Residential Tenancies Act, the Plaintiffs must comply with the provisions of the Act before applying to the Court for a Writ of Possession under Rule 60.10 of the Rules of Civil Procedure.

[40] This Court will remain seized of the matter in relation to any request for a Writ of Possession, bearing in mind the notice requirements to be given to all parties and other persons who are tenants living in the leased premises.

[41] The motion for the Writ of Possession together with the supporting documentation will have to be filed with the courthouse in Belleville, Ontario. The hearing will be by way of Zoom and notice will be required to be given to all persons entitled to it. The date and time for the hearing will be obtained from the Belleville Trial Coordinator’s Office.

Costs

[42] The costs are claimed as:

1. Legal Fees and Disbursements for CV-20-0082: $3,462.75
2. Legal Fees and Disbursements Re: Nature of Sale (3212 Uplands Drive): $3,053.08
3. Legal Fees and Disbursements Re: Notice of Sale (3010 Uplands Drive): $3,042
4. Legal Fees to Croswell Law: $6,476.58
5. Legal Fee including HST Re: Primary: $734.50
6. Legal Fee including HST Re: Collateral: $282.50
7. Registration of Discharge Fee ($77.62/property): $155.24
8. Sub Search Fee: $100
9. Outstanding Charges: $1,200

[43] The Court has had an opportunity to review these costs as claimed. The Court assesses all of these costs at $16,750 inclusive of HST and disbursements.

[44] These reasons and the judgement are subject to any COVID-19 legislation that is or may be in place at the time. For example, there may be a prohibition against termination of tenancies.

[45] Order accordingly.

Mr. Justice Stanley J. Kershman Released: December 22, 2020