The moving defendants sought an injunction restraining the plaintiff mortgagee from completing a power of sale closing scheduled for the following day.
The dispute arose in a mortgage enforcement action where the defendants had filed a statement of defence and a request to redeem after a default judgment had been set aside.
The court held that the defendants retained an equitable right to redeem under the Rules of Civil Procedure and that the plaintiff could not render that right nugatory by proceeding with a power of sale after commencing a foreclosure or sale action.
Applying the test for an interlocutory injunction, the court found a prima facie case, irreparable harm through the loss of the defendants’ equitable interest in the mortgaged property, and a balance of convenience favouring the defendants.
The court therefore restrained the proposed sale until the redemption period expired and the mortgage accounts were taken and judgment rendered.
