Court File and Parties

Court File No.: CV-22-00000534-0000 Date: 2023/01/04 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

Supplementary Endorsement

[1] This 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, now has been placed before me again.

[2] I say “again” because the matter originally came before me on September 20, 2022, at which time I declined to make the order requested for the reasons sent forth in the endorsement I rendered that day; i.e., see Canadian Imperial Bank of Commerce v. McLean, 2022 ONSC 5336. This supplementary endorsement should be read together with that earlier one.

[3] For present purposes, suffice it to say that my principal reason for not making the requested order was that the occupancy report relied upon by the moving plaintiff, reflecting the information obtained during a visit to the relevant property on August 12, 2022, included indications that the property recently had been sold, with a closing scheduled for the following week. That in turn suggested that the persons in actual occupation of the relevant property at the time, (i.e., the defendants and their two adult children, although the male defendant was said to be temporarily in hospital), might be vacating the property within the following week, to be replaced by new owners taking up occupation. It also suggested a possibility that the underlying mortgage debt herein might, between the time of the motion being brought and the motion being placed before the court, have been addressed and satisfied in the course of that anticipated sale and closing.

[4] In the circumstances, I indicated in my endorsement that, if the plaintiff still wished to proceed with the motion, further evidence was required to address the requirements of Rule 60.10(2) of the Rules of Civil Procedure, which provides that 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.”

[5] The supplementary material now placed before me, [1] including a supplementary affidavit sworn by Joseph Agueci on October 7, 2022, and a further occupancy check report reflecting a visit made to the property on September 22, 2022, effectively indicates:

a. that the moving plaintiff does still intend to proceed with this motion; and

b. that the relevant property continues to be occupied only by the defendants and their adult children.

[6] Based on that further evidence, the earlier indications made by the defendants’ adult daughter, Sherry Reaume, were either false or based on contemplation of a sale and closing in relation to the property that never took place for some reason.

[7] In any case, I now am satisfied that the requirements of Rule 60.10(2) have been met, and that the requested order should be made granting the plaintiff leave to issue its desire writ of possession in relation to the relevant property. I have reviewed, finalized and signed the submitted draft order accordingly. Once issued and entered, a copy of that finalized order should be returned to plaintiff counsel, along with a copy of this Supplemental Endorsement.

“Justice I.F. Leach” Justice I.F. Leach Date: January 4, 2023

Footnotes

[1] It seems the plaintiff filed its further material as long ago as October 14, 2022, based on the date of the relevant link in the court’s “OneDrive” folder; i.e., the new electronic court file which has replaced the previous “hard copy” filing system in use before the pandemic. For some reason, apparently related to the plaintiff filing that further material without any further contemporary direction or request, it was not brought to the attention of a judge until today, at which time I was asked to deal with the matter again because of my earlier familiarity with the underlying circumstances.