Micelli v. Baker, 2021 ONSC 3674

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]

Background

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.

2In 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.

3The 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.

4Ms. Micelli’s parents, Gino and Maria Micelli, purchased the property from the Zaighs in April 1985.

5Ms. 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.

6Ms. Baker died on March 18, 2011.

7During the time that Ms. Micelli lived with her parents there was no notice or demand for payment of the mortgage.

8Pursuant 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.

9Any action to enforce the mortgage is now statute-barred pursuant to the Real Property Limitation Act.³

10In 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]

Conclusion

For the above reasons, I am granting Ms. Micelli’s Application. I have signed the Order.

Perell, J.

Footnotes

1. 1R.S.O. 1990, c. L.15.
2. 2R.S.O 1990, M. 40.
3. 3R.S.O. 1990, Chapter L.15.
4. 4R.R.O. 1990, Reg. 194, rule 14.05.