SUPERIOR COURT OF JUSTICE – ONTARIO (COMMERCIAL LIST)
Court File No.: CV-22-00677227-00CL Date: 2022-12-08
Re: Prudent Excellence Mortgage Investment Corporation, Applicant And: Triumph Development HK Bradford Twin Regency Inc. et al, Respondents
Before: Osborne J.
Counsel: Ziyi Tang, for the Applicant Catherine Qin, for the Third Mortgagees, Xiaofeng Fu and Meng Sun Dom Michaud and Anisha Samat, for the Receiver Paul Hancock, for 10853828 Canada Inc. and Delbrook Triumphant Builders Inc.
Heard: December 8, 2022
ENDORSEMENT
[1] BDO Canada Limited [”BDO”], in its capacity as Court-appointed Receiver, seeks an order:
(a) approving the settlement of a lien claim;
(b) approving a distribution in respect of administration expenses claimed under the mortgage that was the subject of the receivership;
(c) approving the Receiver’s fees and those of its counsel; and
(d) for advice and directions regarding a claim made by the mortgagee for three months’ interest pursuant to either or both of the terms of the mortgage at issue and/or section 17 of the Mortgages Act.
[2] The first three heads of relief are unopposed. As to the fourth, the Receiver seeks direction with respect to the claim for interest given its concern that the contractual basis in the mortgage terms relied upon contravene section 8 of the Interest Act and its further concern that section 17 of the Mortgages Act is not applicable in the circumstances, with the result that it cannot be relied upon as the basis for the payment claimed.
[3] The Property was subject to a construction lien in favour of Gerritts Engineering Limited registered prior to sale. Proceeds of sale have been distributed, subject to a holdback related to the issues that are the subject of this motion.
[4] The Receiver has settled the lien claim. For the reasons set out in the motion materials and the Third Report of the Receiver dated November 28, 2022, and given that the priority of the lien is acknowledged by the other lien claimants, I am satisfied that the settlement as reflected in the settlement agreement among the Receiver, Gerritts [the lien claimant] and the subsequent-ranking lien claimants is appropriate, reasonable and should be approved in the amount of $16,385.15 together