VWR Capital Corp. v. Dookie, 2023 ONSC 375
COURT FILE NO.: CV-22-1906-00 DATE: 2023-01-13
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
VWR CAPITAL CORP. Plaintiff
Matthew Wise, for the Plaintiff
- and -
RADHA DOOKIE Defendant
Unrepresented
HEARD (in writing): January 12, 2023, at Milton, Ontario
Price J.
Reasons for Order
[1] The plaintiff moves without notice to the defendant to issue a writ of possession in relation to a property that is the subject of a mortgage that the defendant granted to the plaintiff in 2021. The defendant defaulted on the mortgage and the plaintiff obtained default judgment on December 1, 2022.
[2] The court must be satisfied that the property is not tenanted. The motion must be dismissed pursuant to s. 48(1) of the Mortgages Act, R.S.O. 1990, c. M.40, which provides:
48(1) No person exercising rights under a mortgage may obtain possession of a rental unit from the mortgagor's tenant except in accordance with the Residential Tenancies Act.
[3] The provision is intended in part to ensure that occupants with lawful tenancies under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 are protected under the provisions of that Act when a writ of possession is being sought. Under the provision, bona fide tenancy rights are protected, because a mortgagee cannot obtain possession “except in accordance with the Residential Tenancies Act.” It follows, therefore, that before leave to issue a writ of possession may lawfully be granted, the court must first be satisfied that there is no occupant whose occupancy is governed by the provisions of that Act.
[4] After judgment for possession is obtained, the occupants of the premises must be given formal notice that possession will be sought, in accordance with the procedures mandated by rule 60.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the decision of Master Dunn in Jamort Investments Ltd. v. Fitzgerald, [1968] 1 O.R. 541 (Master's Ch.).
[5] After notice is given, the occupant may apply to the court for relief. If she does not do so within 14 days, then an ex parte motion for leave to issue a writ of possession may be brought. On the return of the motion, an affidavit or other suitable evidence is presented, indicating, inter alia, the names of the occupants of the property, the circumstances of their occupancy, and attesting to the fact that notice of impending eviction has been given. The court then must make a determination as to whether or not any occupant of the premises is a tenant within the meaning of that word in the Residential Tenancies Act. If the occupancy is governed by the Act, then s. 48(1) of the Mortgages Act precludes the issuance of the order.
[6] The plaintiff relies on the defendant’s statement on the face of the mortgage, entered into in August 2021, that to the best of her knowledge the property was not tenanted, and on the fact that she swore a statutory declaration at that time stating that the property would not be tenanted, and on letters that the plaintiff sent to the address stating its intention to obtain a writ of possession. This is not sufficient evidence, more than a year after the mortgage was entered into and the statutory declaration was made, that the property is not now tenanted.
[7] The fact that there are no occupants other than the defendant is normally established by a site inspection. There is no evidence that such an inspection was performed in the present case.
[8] There is insufficient evidence that notice has been given to everyone in actual possession of the property. See: National Bank v. Ehtisham, 2010 ONSC 1528.
CONCLUSION AND ORDER
[9] For these reasons, the motion is dismissed, without prejudice to the plaintiff’s right to renew its motion with further and better evidence.
(Signature of Judge) Price J.
Released: January 13, 2023