Court File and Parties
COURT FILE NO.: CV-22-75 DATE: 2022/10/12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Your Credit Union Limited -and- Paula Jean Tozer, Spouse of Paula Jean Tozer, Public Guardian and Trustee and Ministry of Government and Consumer Services, Respondents
BEFORE: Anne London-Weinstein J.
COUNSEL: Nathan Serratore for the Applicant Respondents, Unrepresented
HEARD: August 22, 2022 (Brockville)
Amended ENDORSEMENT
The text of the original endorsement was amended on October 12, 2022, and the description of the amendment is appended
[1] The Applicant is the mortgagee of a mortgage registered on the municipal address of 436 Froom Road, RR1, Cardinal, Ontario.[^1] The Applicant seeks a determination by the court of entitlements to receive payments from the proceeds of sale of this property and an order for payment out of court to the Applicant.
[2] The Respondents in this matter were properly served by the Applicant, but did not appear at this motion, nor file responding material. They did not send a representative to act on their behalf.
[3] The property was sold after non-payment of tax arrears and the remaining funds paid into court. The Applicant is the mortgagee of that property. The entitlements of all parties to the proceeds of the sale are set out in the Municipal Act, 2001, S.O. 2001, c. 25.
[4] For reasons that follow, I found that the Applicant had an interest as the mortgagee in the property and was entitled to a pay out from the remaining funds in the amount of $78,528.35. The Applicant is also entitled to prejudgment interest in the amount of $974.44. I also awarded the Applicant the costs of the motion in the amount of $5,955.80. The total payable to the Applicant is $85,458.59. I found the Respondent was entitled to a pay out of $8,986.33.
[5] The Respondent, Paula Jean Tozer, is the mortgagor in respect to the mortgage. The Respondent was the sole registered owner of the property from August 8, 2008 to March 3, 2022.
[6] On March 13, 2020, the Township registered a tax arrears certificate on title to the property, noting tax arrears in the amount of $4,350.84 as of December 31, 2019. The certificate noted that the property would be sold by public sale if the cancellation price was not paid within one year of the registration of the tax arrears certificate.
[7] The Township sold the property on March 3, 2022 and retained the cancellation price owing to it under the certificate.
[8] On March 11, 2022, the balance of the proceeds of the sale in the amount of $94,444.92 was paid into the Brockville Superior Court of Justice.
[9] There are no active writs of execution, orders or certificates of lien against the real and/or personal property of the Respondent.
[10] As of June 15, 2022, the Applicant is owed $78,528.35 in respect to the mortgage, together with per diem interest at the rate of $14.33.
[11] Where the cancellation price of a tax arrears certificate remains unpaid for one-year after being registered on title to real property, and there is no subsisting extension agreement, the property shall be offered for public sale: Municipal Act, s. 379.
[12] The proceeds of sale are first applied to pay the cancellation price of the tax arrears certificate. Secondly, the proceeds of the sale are to be paid to all persons—except the land owner— having an interest in the land immediately before the registration of the tax arrears certificate. Lastly, proceeds are to be paid to the person who owned the land immediately before the registration of the tax arrears certificate. Municipal Act, s. 380(1).
[13] The treasurer is required to pay the proceeds of the sale, minus the cancellation price, into the Superior Court of Justice together with a statement outlining the facts under which the payment into court is made, and the names and addresses of the persons to whom the statement will be sent. Municipal Act, s. 380(2).
[14] The court is required to determine all of the entitlements for payment from the proceeds of the sale. Municipal Act, s. 380(6).
[15] The property was sold by the Township by public sale on March 3, 2022. The proceeds of the sale were used by the Township to satisfy the cancellation price of its tax arrears certificate. The remaining balance of $94,444.92 was paid into court on March 11, 2022.
[16] Immediately before the registration of the tax arrears certificate was registered on title to the property, the Applicant held an interest in the property by virtue of its position as mortgagee under the mortgage. The Applicant has a first priority claim for payment of the proceeds of the sale out of court.
[17] As a mortgagee under the first priority mortgage registered on title to the property on August 8, 2008, the Applicant has first priority.
[18] The Respondent, Ms. Tozer, as the owner of the property immediately before the registration of the tax arrears certificate has last priority. She is entitled to the residual proceeds of the tax arrears certificate after payment to all other persons having an interest in the land according to their priority at law: Municipal Act, s. 380(1)(c).
[19] The Applicant’s mortgage is in the amount of $78,528.35. The Applicant has also sought prejudgment interest at the rate of $14.33 per day calculated from June 15, 2022 to the date of judgment, being a total of $974.44.
[20] The mortgage stipulated the terms of prejudgment interest. I therefore awarded interest according to those agreed-upon terms.
[21] The Respondent is entitled to the sum of $8,986.33. This amount was calculated as follows: The $94,444.92, now held by the Accountant of the Superior Court of Justice, less the amounts due to the Applicant including $78,528.35, for the mortgage, costs of the motion of $5,955.80 and prejudgment interest in the amount of $974.44.
[22] Paula Jean Tozer is entitled and ordered to be paid $8,986.33 from the funds currently held by the Accountant of the Ontario Superior Court of Justice. The Applicant, Your Credit Union is entitled to and ordered to be paid $85,458.59 from the funds currently held by the Accountant of the Ontario Superior Court of Justice.
Anne London-Weinstein J.
Date: October 12, 2022
COURT FILE NO.: CV-22-75 DATE: 2022/10/12
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Your Credit Union Limited -and- Paula Jean Tozer, Spouse of Paula Jean Tozer, Public Guardian and Trustee and Ministry of Government and Consumer Services, Respondents
BEFORE: Anne London-Weinstein J.
COUNSEL: Nathan Serratore for the Applicant Respondents, Unrepresented
endorsement
Anne London-Weinstein J.
Released: October 12, 2022
APPENDIX
October 12, 2022: Paragraph 21 now reads: The Respondent is entitled to the sum of $8,986.33.
[^1]: The land is legally described as PT LT 4-5 CON 2 EDWARDSBURGH PT 1, 15R6333; S/T INTEREST IN PR210709; EDWARDSBURGH/CARDINAL (hereinafter, the “Property”).