Winters v. Hunking

Winters v. Hunking

The motion judge erred by failing to properly weigh the appellant's documented mental and physical impairments as an explanation for delay and by failing to assess the magnitude of the net equity (windfall) to the mortgagees in context; because respondents will be fully repaid by a sale and suffer little or no...

Source-derived case information.

Citation
2017 ONCA 909
Parties
Plaintiff (respondent): John David Winters; Plaintiff (respondent): Margaret Louise Winters; Defendant (appellant): Ray Harvey Hunking; Defendant (appellant): The Manufacturers Life Insurance Company
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
27 November 2017
Procedural Posture
Civil Mortgage Foreclosure/default Judgment / Appeal From Motion to Set Aside Default Judgment for Foreclosure (court of Appeal Decision)
Outcome
Appeal allowed; default judgment for foreclosure and noting in default set aside and foreclosure proceedings converted to an immediate judicial sale
Legal Topics
Foreclosure, Setting Aside Default Judgment, Equitable Relief, Windfall/equity, Judicial Sale, Farm Debt Mediation Act
Source Language
english
Civil Property Law Equity Mortgages Administrative Law Foreclosure Setting Aside Default Judgment Equitable Relief +3 more

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Parties

John David Winters

Plaintiff (respondent)

Margaret Louise Winters

Plaintiff (respondent)

Ray Harvey Hunking

Defendant (appellant)

The Manufacturers Life Insurance Company

Defendant (appellant)

Procedural Posture

Civil Mortgage Foreclosure/default Judgment / Appeal From Motion to Set Aside Default Judgment for Foreclosure (court of Appeal Decision)

Legal Issues

  1. 1 Whether the default judgment for foreclosure should be set aside
  2. 2 Whether the equities favour the mortgagor given his health and the substantial equity in the property
  3. 3 Whether the mortgagor's mental and physical condition explains delay and inaction

Ratio Decidendi

The motion judge erred by failing to properly weigh the appellant's documented mental and physical impairments as an explanation for delay and by failing to assess the magnitude of the net equity (windfall) to the mortgagees in context; because respondents will be fully repaid by a sale and suffer little or no prejudice while the mortgagor would suffer severe prejudice, the equities favour setting aside the default judgment for foreclosure and converting the proceedings to an immediate judicial sale; appeal allowed.

Court Disposition

Appeal allowed; default judgment for foreclosure and noting in default set aside and foreclosure proceedings converted to an immediate judicial sale

Orders

  • Set aside the default judgment for foreclosure
  • Set aside the noting in default