Court File and Parties
COURT FILE NO.: CV-21-00659448
DATE: 20210520
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GABRIELLA MICELLI
Applicant
- and -
RACHEL BAKER
Respondent
Gregory E. McConnell for the Applicant.
Application under s. 23 of the Real Property Limitations Act, R.S.O. 1990, c. L.15
HEARD: In writing
REASONS FOR DECISION
PERELL, J.
[1] Gabriella Micelli, who is the former owner of 10 Laurentia Crescent in Toronto, brings an Application pursuant to s. 23 of the Real Property Limitations Act,[^1] to remove from the registered title of the property a 1984 mortgage. The mortgagee is deceased and there is evidence that the mortgage has been paid in full.
[2] In November 2020, Ms. Micelli sold the property, and her lawyers undertook to obtain a court order removing the mortgage, registered instrument TB145311, from the parcel registry.
[3] The mortgage had been granted on January 3, 1984, by the previous owners, Ezra and Anna Zaigh to Rachel Baker, their vendor, and another predecessor on the title to the property.
[4] Ms. Micelli’s parents, Gino and Maria Micelli, purchased the property from the Zaighs in April 1985.
[5] Ms. Micelli has documentation showing that the mortgage to Ms. Baker was paid and should have been discharged in July 1985, shortly after Gino and Maria Micelli purchased the property. She has cancelled cheques, a debit memo, a mortgage statement, and a letter from Fred Baker.
[6] Ms. Baker died on March 18, 2011.
[7] During the time that Ms. Micelli lived with her parents there was no notice or demand for payment of the mortgage.
[8] Pursuant to s. 12 of the Mortgages Act,[^2] the court has the jurisdiction to discharge a mortgage where it appears that all the money due on the mortgage has been paid and the mortgagee has died.
[9] Any action to enforce the mortgage is now statute-barred pursuant to the Real Property Limitation Act.[^3]
[10] In the circumstances of the immediate case, no purpose would be served by requiring Ms. Micelli to serve her application on the estate representative of the late Ms. Baker if there is one. Pursuant to the Rules of Civil Procedure,[^4] the court may dispense with service in appropriate cases, of which the immediate application is one.
[11] For the above reasons, I am granting Ms. Micelli’s Application. I have signed the Order.
Perell, J.
Released: May 20, 2021.
COURT FILE NO.: CV-21-00659448
DATE: 20210520
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GABRIELLA MICELLI
Applicant
- and -
RACHEL BAKER
Respondent
REASONS FOR DECISION
PERELL J.
Released: May 20, 2021.
[^1]: R.S.O. 1990, c. L.15. [^2]: R.S.O 1990, M. 40. [^3]: R.S.O. 1990, Chapter L.15. [^4]: R.R.O. 1990, Reg. 194, rule 14.05.