Court File and Parties

COURT FILE NO.: CV-22-00000534-0000

DATE: 2022/09/20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CANADIAN IMPERIAL BANK OF COMMERCE, Plaintiff

AND:

ELVA IRENE MCLEAN and JOHN PAUL MCLEAN, Defendants

BEFORE: Justice I.F. Leach

COUNSEL: Joseph Agueci, for the Plaintiff

No one appearing for the defendants on this ex parte motion

HEARD: In writing

ENDORSEMENT

[1] Before me is an ex parte motion brought by the plaintiff, in writing pursuant to Rule 37.12.1(1) of the Rules of Civil Procedure, for an order granting leave to issue a writ of possession in relation to the mortgaged property that is the subject of this proceeding.

[2] That property also was the subject of a judgment herein, made in favour of the plaintiff on June 22, 2022, which included a provision requiring the defendants to deliver possession of the land to the plaintiff.

[3] The plaintiff’s motion material is in order but inherently dated in a crucial respect such that, in my view, the requested order cannot be granted based on the evidence currently provided. In particular:

a. Pursuant to Rule 60.10(2) of the Rules of Civil Procedure, an order granting leave to issue a writ of possession may be made only where the court is satisfied that “all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief”.

b. In this case, the moving plaintiff relies, in its motion material, on an “Occupancy Check” report dated August 8, 2022, (sic), purporting to report on the results of an attendance at the subject property carried out by the reporter, identified by the report as “William M”, on August 22, 2012, (sic); i.e., four days after the indicated date of the report.

c. According to the report, William M attended at the property on August 12, 2022, at 2:10pm, and spoke with a person who identified herself as Sherry Reaume, the daughter of the two defendant mortgagors. Ms Reaume further indicated that the property was occupied by herself, her parents Elva Irene McLean and John Paul McLean, (although the former was in hospital at the time), and her brother Corbet McLean. All four members of the family were said to share the three bedroom home as their common residence.

d. Relying on that report, the plaintiff sent a notice demanding possession to those four occupants of the property by regular first class mail, posted on August 17, 2022. The plaintiff then filed its motion record herein on August 31, 2022, including sworn evidence that no motion or application had been served on the plaintiff or its lawyers requesting relief from the judgment herein.

e. However, according to the same report, Sherry Reaume also indicated to the reporter, on August 12, 2022, that the subject property had been “sold”, with a closing scheduled for later that week. August 12, 2022, was a Friday, suggesting that the scheduled closing described by Ms Reaume would have taken place on or before Friday, August 19, 2022.

f. The indications said to have been made by Ms Reaume regarding sale of the subject property, and the timing of a formal closing on that sale, may or may not have been accurate. For present purposes, the fundamental point is that the information provided in the plaintiff’s motion record, filed on or about August 31, 2022, gives rise to an obvious concern that a new owner or owners of the subject property may have taken possession of the property on or before August 19, 2022, in which case there may very well now be different “persons in actual possession of any part of the land”, in turn raising the possibility that those different persons may not yet “have received sufficient notice” of this proceeding to enable them to apply to the court for relief.

[4] If the subject property was sold and the sale has closed, in accordance with the information provided by Ms Reaume, that suggests that the plaintiff’s mortgage registered against the property may have been addressed, and the relevant debt owed to the plaintiff by the defendants satisfied, in the course of that closing; developments which, in turn, may have rendered the motion herein unnecessary and inappropriate.

[5] In any event, if the plaintiff still wishes to pursue this motion and the relief requested therein, further evidence must be filed providing an update concerning the persons currently in actual possession of the subject property.

[6] Perhaps it would go without saying, but I am not seized of this matter. If and when such further evidence is filed, the plaintiff’s motion may be placed before any judge (including me) for review.

Justice I. Leach

Justice I.F. Leach

Date: September 20, 2022