Court File and Parties
COURT FILE NO.: CV-21-670453-0000
DATE: 20211110
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: FCT Insurance Company Ltd., Applicant
AND: Duilio Conte and Caterina Concetta Conte, Respondents
BEFORE: S.F. Dunphy J.
COUNSEL: Allyson Fox, for the Applicant Stefan Bojecko and Ana Maria Hicks, for the Respondents
HEARD at Toronto: November 10, 2021
REASONS FOR DECISION
[1] The plaintiff title insurance company seeks an order to rectify title based on an error in preparing a mortgage in favour of Toronto-Dominion Bank arising from a 2016 Variable Interest Rate Mortgage Loan. At the time, Mr. Duilio Conte was both borrower and owner of the property in question and agreed to grant a mortgage to T-D Bank. The loan agreement contains a clear agreement to grant a mortgage. For whatever reason, the mortgage that was executed had the name of the wrong institution as mortgagee and this is what was registered on title (and subsequently deleted from title a few months later in 2016).
[2] In the meantime, the borrower/owner Mr. Duilio Conte transferred the property to himself and his spouse on September 26, 2019. I do not have full particulars of what the interests were as between the two transferees on that occasion following this transfer.
[3] The last factual piece of the puzzle is the Notice registered on title on October 12, 2021 by Mr. Francesco Conte who was represented before me by Mr. Bojeczko. Mr. Bojeczko advises that Mr. Duilio Conte passed away earlier this year and he represents Mr. Francesco Conte as one of the two executors of the will.
[4] It appears to me that TD Bank may have a compelling case for an equitable mortgage but I cannot see that a case for rectification nunc pro tunc can necessarily be made out without hearing from others who may have acquired an interest in the land in ignorance of TD’s claim in the interim. I do not presently have evidence as to what interest if any the Duilio and thus his Estate has following the 2019 transfer.
[5] The good news is that there is plenty of value in the land relative to the amount of the loan at issue. The Estate is still in the process of fact-finding and getting organized. There is a high probability that all of this will get sorted out without having to dig any deeper into potentially complex litigation facts.
[6] There is a clear case made out for a CPL given TD’s claim to an equitable mortgage over whatever interest its Borrower has in the land following the 2019 transfer at least. Mr. Bojeczko cannot consent to a CPL but does not oppose it either.
[7] I am authorizing the registration of a CPL and signed the order proposed.
S.F. Dunphy J.
Date: November 10, 2021