COURT FILE NOS.: CV-21-0067354-0000 and CV-20-00643339-0000
MOTION HEARD: 27/10/2022
RELEASED: 16/12/2022
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: URCH, Applicant/Responding party
AND:
GREENPATH CAPITAL PARTNERS INC., Respondent/Moving Party
BEFORE: Associate Justice R. Frank
COUNSEL: Julien Bonniere for the Respondent in the Application and Plaintiff/Moving Party in the Action
Douglas Urch, in person, Applicant in the Application and Defendant/Responding Party in the Action
HEARD: October 27, 2022; written submissions on quantification delivered on November 23, 2022
REASONS FOR DECISION (REFERENCE AND MOTION)
[1] There are two matters before the court.
[2] The first is a reference (the “Reference”) in an application by the Applicant, Douglas Urch (the “Application”), the current owner of a condominium property municipally known collectively as: Unit 14 level 9, unit 38 level A and unit 155 level A, 39 Parliament Street, Toronto, Ontario (the “Property”). In the application, Mr. Urch seeks, among other relief, a determination of the amounts owing by him to Greenpath Capital Partners Inc. (“GCP”), the Respondent in the application, under the First Mortgage on the Property (as defined below) and the Second Mortgage on the Property (as defined below).
[3] The second matter before the court is a motion for judgment (the “Motion”) by GCP, the Plaintiff in a related action against Mr. Urch. In the action, GCP seeks payment of the amounts due under the Second Mortgage on the Property (as defined below) and an order for possession of the Property.
[4] The order directing the Reference and the order directing that the Reference be heard together with the GCP motion for judgment was made by Myers J. on January 18, 2022.
[5] Following the completion of the hearing of the Reference and the Motion, I made a report and an order, with reasons to follow, with respect to the amounts owing under the First Mortgage (as defined below) and the Second Mortgage (as defined below), as well as an order for possession of the Property. In that report and order, I made findings, directions and orders allowing some of the amounts claimed by GCP, disallowing others, and ordering that GCP shall have possession of the Property. These are my reasons.
(i) Background facts
[6] The background facts are not in dispute.
[7] The action between GCP and Mr. Urch arises out of a mortgage agreement between them with respect to the Property securing the sum of $367,500 for a term twelve months at an interest rate of 12.990% per annum (the “Second Mortgage”).
[8] On January 28, 2020, Mr. Urch defaulted on payment of the interest and principal on the Second Mortgage. That default is continuing.
[9] On or about March 14, 2020, GCP served Mr. Urch with a notice of sale on the Property (the “GCP Notice of Sale”). On or about August 19, 2020, GCP served Mr. Urch with the statement of claim in this action by which GCP seeks vacant possession of the Property and payment of the sums due under the Second Mortgage.
[10] Mr. Urch also fell into arrears in payment of certain condominium fees (the “Condo Arrears”) which led to the registration of a lien on the Property by the condominium corporation for the Condo Arrears.
[11] In or around August 2020, the first mortgagee, HSBC Bank Canada (“HSBC”), served a notice of sale on the Property (the “HSBC Notice of Sale”) alleging default under the terms of the mortgage granted by Mr. Urch to HSBC (the “First Mortgage”).
[12] On October 30, 2020, GCP took an assignment of the First Mortgage.
[13] Initially, Mr. Urch took issue with the validity of the GCP Notice of Sale, but that is no longer in dispute. The sole issues to be determined on the Reference and the Motion before me were:
the amounts owing under the First Mortgage and Second Mortgage; and
whether an order should be made granting GCP possession of the Property.
[14] With respect to possession of the Property, Mr. Urch no longer disputes that GCP is entitled to possession and the only remaining disagreement between the parties was the timing for delivery of vacant possession.
[15] With respect to the amounts owing under the mortgage, Mr. Urch disputes a number of fees (the “Disputed Fees”) and other amounts claimed by GCP as owing under the terms of the Second Mortgage (collectively with the Disputed Fees, the “Disputed Amounts”). GCP’s position is that the terms of the Second Mortgage, as outlined in the applicable commitment letter (the “Commitment Letter”) and standard charge terms (the “Charge Terms”), expressly allow for GCP to claim and recover the Disputed Amounts. The disagreement regarding the Disputed Amounts includes a dispute about the amount that GCP claims as assignee of the First Mortgage, as well as the interest rate claimed by GCP with respect to the amounts owing under the First Mortgage.
[16] The Disputed Fees are included in the Mortgage Discharge Statement (the “Discharge Statement “) attached as Exhibit “C” to the affidavit of Stephanie Rumble sworn October 11, 2022. The Discharge Statement includes certain amounts that are not disputed and which both parties agree are properly included in the amounts owing under the Second Mortgage. The undisputed amounts are as follows:
Principal Amount - 2nd Mortgage: $376,500.00
Outstanding Interest - 2nd Mortgage: (29JAN2020- 27SEP2022): $154,913.42
Condo Arrears paid to TSCC 1299 (11MAR2021): $23,807.60
[17] In these reasons, my analysis and determination of the Disputed Amounts are addressed in two categories: (i) the Disputed Fees GCP is seeking to recover under the Second Mortgage; and (ii) the disputed quantum with respect to the assignment of the First Mortgage, including the interest rate to be applied to the amounts payable with respect to the First Mortgage.
(ii) Disputed Fees
[18] GCP claims that certain Disputes Fees are properly recoverable under the terms of the Second Mortgage. It submits that the Commitment Letter and Charge Terms expressly provide for such fees, and it relies on specific provisions in the Commitment Letter and Charge Terms as justification for claiming the Disputed Fees.
[19] In his materials, Mr. Urch submits that GCP has failed to adduce evidence that the Disputed Fees reflect real costs legitimately incurred to recover the debt. He argues that this demonstrates that the only reason for charging the Disputed Fees was to impose a penalty or fine, which increased the burden on him as a defaulting mortgagor beyond the rate of interest agreed upon in the Second Mortgage. He submits that the late payment charges and default fees are, therefore, in violation of Section 8 of the Interest Act, RSC 1985, c. I-15 (the “Interest Act”).
[20] The Disputed Fees are as follows:
Lender Discharge Administration Fee- 2nd Mortgage: $350.00
Lender Discharge Registration Fee – 2nd Mortgage: $250.00
Lender Mortgage Discharge Statement Fee: $400.00
Lender Mortgage Discharge Statement Fee (21SEP2020): $400.00
Lender Mortgage Discharge Statement Fee (22NOV2021): $400.00
Lender Mortgage Discharge Statement Fee (01MAR2022): $400.00
Condo Lien Default Fee (6 x $200.00) (MAY-2019, NOV2019, FEB-2020, JUL-2020, MAR-2021, JUL-2021): $1,200.00
Condo Lien Arrears Payment Fee (11 MAR-2021): $2,000.00
1st Mortgage Verification Fee (AUG-2020): $500.00
1st Mortgage Arrears Payment Fee (30-OCT-2020): $2,000.00
Assumption/Transfer Fee 1st Mortgage: $500.00
Lender Discharge Administration Fee 1st Mortgage: $350.00
Lender Discharge Registration Fee 1st Mortgage: $250.00
Default Payment Fee: $12,226.84
Default Proceedings Fee - Notice of Sale: $1,000.00
Default Proceedings Fee - Statement of Claim: $1,000.00
Legal Fees Notice of Sale FRH LLP including disbursements/HST (Notice of Sale, Statement of Claim, Default Judgement, Motion Default Judgement, Case Conferences, Applications): $36,333.74
[21] Up until the hearing of the Reference and the Motion, there was a dispute about GCP’s claim to the “Default Payment Fee” in the amount of $12,226.84 (an amount equal to three months’ interest). At the hearing, counsel for GCP advised that GCP is no longer claiming this amount under the Second Mortgage. As a result, the Default Payment Fee is disallowed and shall not be included in the calculation of the amount owing under the Second Mortgage.
[22] To the extent that any of the Disputed Fees are purported recovery of disbursements incurred by GCP, there is no evidence that any of them reflect real costs legitimately incurred by GCP for the recovery of the debt owing under the Second Mortgage. With respect to the legal fees claimed as a recoverable disbursement under the terms of the Second Mortgage, the only evidence in the record relating to legal fees is a prebill dated March 3, 2022 in the amount of $2,649.85. There is no evidence that the amount listed in the prebill, or any amount, was billed to or paid by GCP. There is no evidence whatsoever of any invoices for legal fees sent to or paid by GCP.
[23] In BMMB Investments Limited v. Naimian,[^1] Myers J. considered a claim by a mortgagee for payment of certain disbursements it claimed were owing under the terms of a mortgage. Myers J. rejected the claimed disbursements for reasons that included the following:
26 None of these alleged disbursements is proven by an invoice. There is no basis in the evidence to determine that the costs were incurred at the amounts claimed let alone to assess the reasonableness of the alleged expenditures. …
28 It does no injustice to any plaintiff to require it to adduce evidence to support disbursements for which it claims reimbursement. As no evidence is adduced by the plaintiff to support any of the costs for which it claims reimbursement, none is allowed.[^2]
[24] In this case, there is no evidence adduced by GCP to support the claimed legal fees. Therefore, I am disallowing the claim for such fees.
[25] With respect to the other Disputed Fees claimed by GCP, the case law is clear that claims by mortgagees for fees must reflect costs legitimately incurred by the mortgage lender for the recovery of the debt. If the claimed fees do not reflect costs legitimately incurred by the mortgage lender, they will be disallowed as unenforceable penalties under the common law and as charges that violate s. 8 of the Interest Act. In this regard, the Court of Appeal has held as follows:
In the absence of evidence that the charges in question reflect real costs legitimately incurred by the respondents for the recovery of the debt, in the form of actual administrative costs or otherwise, the only reason for the charges was to impose an additional penalty or fine, apart from the interest otherwise payable under the Mortgage, thereby increasing the burden on the appellants beyond the rate of interest agreed upon in the Mortgage. The courts have not hesitated to disallow similar charges on the basis that they offend s. 8 of the Interest Act: see for example, Chong v. Kaur, 2013 ONSC 6252 (Ont. S.C.J.), at paras. 54 - 56; Bhanwadia v. Clarity Financial Corp., 2012 ONSC 6393 (Ont. S.C.J.), at paras. 43 - 46; NBY Enterprises Inc., at para. 29; 2088300 Ontario Ltd. v. 2184592 Ontario Ltd., 2011 ONSC 2986 (Ont. Master), at paras. 22 - 23; Nesci v. Ramrattan [2009 CarswellOnt 692Ont. S.C.J.], 2009 CanLII 5153, at para. 28.[^3]
[26] More recently, Myers J. explained the basis for disallowing certain mortgage enforcement fees as follows:
29 Fees claimed in mortgage enforcement cases raise three concerns. First, as a matter of contract enforcement, there should be evidence of the occurrence of the event for which the contract allows a fee to be charged. Second, there is a concern that the fees charged may be unrelated to a genuine pre-estimate of damages to be incurred by the lender on the occurrence of the specified event. If that is the case, the fee may be an unenforceable “penalty” at common law. Third, excessive fees can mask increased interest charged on a mortgage default in violation of the prohibition in s. 8 of the Interest Act, RSC 1985, c. I 15.
43 An approach that regards mortgage fees with suspicion works no hardship on lenders. The common law has done so for centuries to protect the weaker party from fees that over-compensate the stronger party on a claim of breach of contract. Should it not be assumed that in setting its interest rate and other terms under the mortgage, the lender has included in its calculus its cost of doing business? A lender’s ability to hive off from the daily work of its account clerks the specific increased burden caused by an individual mortgagor’s default is a dubious proposition at best. I can understand that a lender who wishes to compete may want to reduce its interest rate by excluding some of its extraordinary costs and then charge those costs specifically only to those borrowers whose defaults cause those costs to be incurred. That is perfectly legitimate. But in that case, it behooves the lender to be able to prove with evidence that it incurred the costs that it seeks to charge to the individual borrowers. Absent proof of specific costs being incurred, the costs are rightly subsumed in its ordinary costs of doing business.
44 In view of the absence of evidence that any of the fees is either a genuine pre-estimate of damages suffered by the lender or “evidence that the charges in question reflect real costs legitimately incurred by the respondents for the recovery of the debt, in the form of actual administrative costs or otherwise” to borrow the words of P.A.R.C.E.L., none of the fees claimed in this case can be allowed.
[27] In this case, some of the Disputed Fees relate to events that have not occurred (for example, the fees relating to the discharge of the Second Mortgage). Further, counsel for GCP conceded that: (1) none of the Disputed Fees (other than the claimed legal fees dealt with above) relate to out-of-pocket expenses actually incurred by GCP; and (2) there is no evidence that any of the fees are a genuine pre-estimate of damages incurred or to be incurred by GCP on the occurrence of the specified events to which they relate. As such, I find that the Disputed Fees are unenforceable penalties at common law and that they mask increased interest charged on the default of the Second Mortgage, which is in violation of the prohibition in s. 8 of the Interest Act.
[28] In the result, all of the Disputed Fees are disallowed, and I order that they are not recoverable under the Second Mortgage.
(iii) Disputed Amounts under the First Mortgage
[29] Mr. Urch does not dispute that, as assignee of the First Mortgage, GCP is entitled to recover the amounts owing under that mortgage. However, as noted above, he disputes the amount that GCP claims as assignee of the First Mortgage as well as the interest rate claimed by GCP with respect to the amounts owing under the First Mortgage.
[30] GCP’s evidence is that it paid HSBC $412,310.02 as of October 30, 2020 with respect to the assignment of the First Mortgage. It points to a pay‑out letter from HSBC that provides a total amount payable of $411,705.54 as of October 15, 2020. GCP submits that because HSBC required GCP to pay $412,310.02 in order to obtain an assignment of HSBC’s rights under the First Mortgage, GCP is entitled to recover that full amount (plus interest) under the terms of the Commitment Letter and Charge Terms. I do not agree.
[31] As noted above, when Mr. Urch defaulted on the First Mortgage, the then first mortgagee, HSBC, sent the HSBC Notice of Sale to Mr. Urch. The HSBC Notice of Sale provides that $384,309.65 was payable under the First Mortgage, plus a per diem of $24.07, based on a principal amount of $365,236.75 plus interest and fees as of August 5, 2020. An October 9, 2020 letter from HSBC’s lawyer provides that the balance due and owing with respect to the First Mortgage loans as of October 15, 2020 was $388,470.92. The letter also lists certain amounts owing by Mr. Urch to HSBC under a line of credit ($13,418.61) and a Mastercard credit card account ($9,816.01), which, when added to the loan amount under the First Mortgage, totaled $411,705.54.
[32] In these proceedings, GCP seeks an order for recovery under the First Mortgage of $412,310.02 plus interest, rather than $388,470.92 plus interest. Further, GCP seeks interest at a rate of 12.99% on the amount of $412,310.02 from the date of the assignment (October 30, 2020), also relying on the terms of the Commitment Letter and Charge Terms.
[33] Mr. Urch takes the position that GCP is only entitled to recover amounts with respect to indebtedness under the First Mortgage (i.e. $388,470.92), and he argues that GCP is not permitted to recover any of the amounts that may have been payable to HSBC with respect to the line of credit and Mastercard credit card debt. Mr. Urch also submits that interest on the amounts due under the First Mortgage accrues at the rate of 2.34%, and not 12.99%, because GCP is assignee of the First Mortgage and, therefore, its right to recovery is subject to the terms of the First Mortgage, which provides for interest at 2.34%.
[34] GCP has adduced no evidence connecting the amounts that may have been owing by Mr. Urch to HSBC under the line of credit or the Mastercard credit card to the First Mortgage. Further, claiming those amounts is inconsistent with the content of the HSBC Notice of Sale. I also note that the October 9, 2020 letter from HSBC’s counsel expressly indicated that the loan amount owing under the First Mortgage as at October 15, 2020 was $388,470.92 and not $411,705.54 or $412,310.02.
[35] In the result, I am disallowing the following two amounts listed on the Discharge Statement:
1st Mortgage Transfer Balance from HSBC (30OCT2020): $412,310.02
Outstanding Interest – 1st Mortgage (30OCT2020-27SEP2022): $115,490.28
[36] In their place, I am allowing a claim to the following two amounts:
1st Mortgage Transfer Balance from HSBC (as of 15 OCT 2020): $388,470.92; and
Outstanding Interest – 1st Mortgage (15OCT2020-27SEP2022): to be calculated based on the transfer balance of $388,470.92 at an interest rate of 2.34%, in accordance with the terms of the First Mortgage.
(iv) Total amounts owing under the First Mortgage and the Second Mortgage
[37] In view of my rulings above, the only amounts owing and payable under the First Mortgage and Second Mortgage are as follows:
Principal Amount – Second Mortgage in the amount of $376,500.00; plus Outstanding Interest – Second Mortgage: (29JAN2020- 27SEP2022) in the amount of $154,913.42 for a total owing under the Second Mortgage as of September 27, 2022 in the amount of $531,413.42.[^4]
Condo Arrears paid to TSCC 1299 (11MAR2021): $23,807.60.[^5]
First Mortgage Transfer Balance from HSBC (as of 15 OCT 2020): $388,470.92.
Outstanding Interest – First Mortgage (15OCT2020-27SEP2022): to be calculated based on the transfer balance of $388,470.92 at an interest rate of 2.34% and in accordance with the terms of the First Mortgage.
[38] Interest continues to accrue on the amounts owing under the Second Mortgage (including the Condo Arrears) at a rate of 12.99% and on the First Mortgage at a rate of 2.34%.
[39] At the conclusion of the hearing of the Reference and Motion, I directed the parties to try to reach an agreement on the calculation of the aggregate amount owing on the items that I found to be payable and owing. The parties were directed to submit their agreed-upon calculations by October 31, 2022, or, failing agreement, to provide to me their respective calculations with an explanation of how the calculations were made. At a subsequent Hearing for Directions on November 2, 2022 with respect to the required calculations, I ordered and directed the parties to try to agree on the quantification of the following amounts that I determined are owing to GCP:
with respect to the Second Mortgage: $376,500 plus interest at 12.99% from January 29, 2020 to September 27, 2022, plus a per diem;
with respect to the Condominium Arrears paid to TSCC 1299: $23,807.60 plus interest at 12.99% from March 12, 2020 to September 27, 2022, plus a per diem; and
with respect to the First Mortgage: $388,470.92 plus interest at 2.34% from October 16, 2020 to September 27, 2022, plus a per diem.
[40] I also ordered and directed that if the parties were unable to agree on the quantification of the above amounts by November 16, 2022, they were to provide me with written submissions not exceeding two pages (plus calculations) by November 23, 2022. Regrettably, the parties were not able to agree on the calculations, and I received and reviewed their written submissions on quantification.
[41] I note that the parties’ respective calculations do not differ materially in terms of the amounts owing as of September 27, 2022, but that there is a more significant divergence on the per diem amounts each party submits are owing on a going-forward basis. Having reviewed the parties’ submissions, I find that:
the GCP submissions are merely conclusory and do not provide any explanation as to the manner in which they were calculated, whereas Mr. Urch’s submissions provide a more comprehensive explanation of his calculation method.
For the principal and interest amounts owing under the Second Mortgage, Mr. Urch conceded at the hearing that the principal amount of $376,500.00 is owing and that interest from January 29, 2020 to September 27, 2022 totaled $154,913.42 for a total of $531,413.42. As a result, my Report on the Reference and Order on the Motion includes this amount.
For the Condo Arrears paid to TSCC 1299, the parties agree that the principal amount owing is $23,907.60. Mr. Urch submits that the interest on this amount from March 12, 2021 to September 27, 2022 was $5,245.70, for a total amount owing of $29,053.30. GCP submits that as of September 27, 2022, the interest was $5,260.72, for a total of $29,068.32. I accept Mr. Urch’s calculation of $29,053.30.
Aggregating the $531,413.42 and $29,053.30 amounts, I find that the total amount owing under Second Mortgage is $560,466.72. Based on that aggregate amount, I find that the per diem amount owing under the second mortgage from September 28, 2022 is $199.46 (which is slightly higher than the per diem of $199.35 provided in Mr. Urch’s submissions). I do not accept the per diem calculation set out in GCP’s submissions.
For the First Mortgage, the principal amount is $388,470.92 and Mr. Urch submits that interest on that amount from October 16, 2020 to September 27, 2022 was $18,088.30 for a total of $406,559.22, plus a per diem of $26.06 from September 28, 2022. GCP submits that the interest amount was $18,201.20 for a total of $406,672.12. I accept Mr. Urch’s calculation and per diem.
[42] In summary, I find that the following amounts are owing to GCP:
For the Second Mortgage including both the principal owing under the Second Mortgage, the Condominium Arrears Fees Paid to TSCC 1299 and interest on those amounts, the amount owing to GCP is $560,466.72 plus a per diem of $199.46 from September 28, 2022 until payment; and
For the First Mortgage, including both principal and interest, the amount owing to GCP is $406,559.22 plus a per diem of $26.06 from September 28, 2022 until payment.
(v) Possession
[43] As noted above, there is no dispute that an order for possession of the Property should be made. Mr. Urch advised that he was prepared to turn over vacate possession voluntarily if the parties were able to agree on a reasonable period for that to occur. The parties were encouraged to try to work out a date for vacant possession by agreement, but they were unable to do so and made submissions on timing.
[44] GCP submitted that possession should be ordered as of 30 days from October 27, 2022. Mr. Urch submitted that the date should be January 15, 2023.
[45] In view of a number of factors, including the significant inaccuracies in the GCP Notice of sale, the many requests by Mr. Urch for clarification of the Disputed Fees and other disputed amounts claimed by GCP, GCP’s failure to provide any, or any proper, response to the requests for clarification from Mr. Urch, and the upcoming holiday season, I find that Mr. Urch’s proposed timeline is not unreasonable but have determined that it should be shortened slightly.
[46] I order that Mr. Urch shall turn over vacant possession of the Property to GCP on January 6, 2023 and that GCP shall have possession of the Property on that date.
Costs
[47] With respect to costs, Mr. Urch was entirely successful on the Reference/Application and, as a result, substantially successful on the Motion. With respect to the Reference (which is relevant to the amounts I determined to be owing in respect with respect to the Motion), I disallowed all of the Disputed Fees and accepted Mr. Urch’s position with respect to the amounts payable under the Second Mortgage and the First Mortgage. Although self-represented at the October 27, 2022 hearing, Mr. Urch:
had counsel of record for certain periods relevant to the Reference/Application and Motion; and
produced a copy of a Client Trust Ledger from his former lawyer of record confirming payment of legal fees in excess of $20,000.
[48] Mr. Urch submitted that costs should be payable to him on a substantial indemnity basis. He argued that the Reference and Motion were only necessary because of the unreasonable position taken by GCP and its refusal to attempt to find a resolution to the disputed quantum and its singular focus on enforcement of the Second Mortgage.
[49] GCP’s counsel submits that the quantum of fees incurred by Mr. Urch is unreasonable in the circumstances, and he points to GCP’s cost outline which seeks costs in the modest amount of $2,749.50.
[50] In my view, the quantum Mr. Urch paid to his counsel is not unreasonable, as demonstrated by the fact that GCP was seeking recovery of legal fees under the Second Mortgage in the amount of $36,333.74. GCP’s costs outline seeking a much more modest amount of costs assumed prior recovery of more than $36,000 in fees under the terms of the Second Mortgage.
[51] In terms of the scale of costs, although GCP was unsuccessful on this Reference/Application and, in my view, the Motion could have been avoided or simplified, I am not prepared to order costs on a substantial indemnity basis.
[52] Considering the factors set out in Rule 57.01 and the caselaw, I find that the all-inclusive sum of $12,000, inclusive of all disbursements and taxes, is a fair and reasonable amount that GCP could expect to pay for costs in all of the circumstances. I therefore order GCP to pay costs to Mr. Urch in the amount of $12,000, inclusive of all disbursements and taxes. However, in view of the amounts that are payable by Mr. Urch to GCP, the $12,000 in costs shall be paid by deducting that amount from the amounts otherwise payable by Mr. Urch to GCP.
Disposition
[53] With respect to the Reference, I find and declare as follows:
The amount owing by Douglas Urch to Greenpath Capital Partners Inc. with respect to the Second Mortgage is $560,466.72 plus a per diem of $199.46 from September 28, 2022 until payment.
The amount owing by Douglas Urch to Greenpath Capital Partners Inc. with respect to the First Mortgage is $406,559.22 plus a per diem of $26.06 from September 28, 2022 until payment.
[54] With respect to the Motion, I order and adjudge as follows:
With respect to the Second Mortgage, Douglas Urch shall pay to Greenpath Capital Partners Inc. $560,466.72 plus a per diem of $199.46 from September 28, 2022 until payment.
With respect to the First Mortgage, Douglas Urch shall pay to Greenpath Capital Partners Inc. $406,559.22 plus a per diem of $26.06 from September 28, 2022 until payment.
As of January 6, 2023, Greenpath Capital Partners Inc. shall have possession of the property municipally known collectively as: Unit 14 level 9, unit 38 level A and unit 155 level A, 39 Parliament St, in the city of Toronto, in the Province of Ontario (the “Property”), and Greenpath Capital Partners Inc. is granted leave to issue a writ of possession against the Property effective as of January 6, 2023.
Greenpath Capital Partners Inc. shall pay Douglas Urch costs of the Motion and the Reference fixed in the amount of $12,000, inclusive of disbursements and taxes, which shall be paid by deducting that amount from the amounts payable by Douglas Urch to Greenpath Capital Partners Inc.
R. Frank Associate J.
Date: December 16, 2022
COURT FILE NOS.: CV-21-0067354-0000 and CV-20-00643339-0000
MOTION HEARD: 27/10/2022
RELEASED: 16/12/2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
URCH, Applicant/Responding party
AND:
GREENPATH CAPITAL PARTNERS INC., Respondent/Moving Party
REASONS FOR DECISION (REFERENCE AND MOTION)
R. Frank Associate J.
Released: December 16, 2022
[^1]: BMMB Investments Limited v. Naimian, 2020 ONSC 7999 (“BMMB Investments”). [This decisoin was included in Mr. Urch’s motion record, at Exhibit “J” to the affidavit of Douglas Urch sworn June 17, 2022]
[^2]: BMMB Investmentsat at paras. 26 and 28.
[^3]: P.A.R.C.E.L. Inc. v. Acquaviva, 2015 ONCA 331 at para. 96
[^4]: At the hearing, Mr. Urch accepted that these amounts are owing.
[^5]: At the hearing, Mr. Urch accepted that this amount is owing.