Inter-Trust Mortgage Investment Corporation v. 1071005 Ontario Ltd.

Inter-Trust Mortgage Investment Corporation v. 1071005 Ontario Ltd. Collection Decisions of the Court of Appeal Date 1999-06-01 Docket numbers C30450 Judges Osborne, Coulter Arthur Anthony; Catzman, Marvin Adrian; O’Connor, Dennis Subject Civil Decision Content DATE: 19990601 DOCKET: C30450 COURT OF APPEAL FOR ONTARIO RE: INTER-TRUST MORTGAGE INVESTMENT CORPORATION (Applicant/Appellant) v. 1071005 ONTARIO LTD., VITO SCHIAVONE, GARY ALAN ROBINSON, MINISTRY OF FINANCE (RETAIL SALES TAX COLLECTION BRANCH) REVENUE CANADA TAXATION and WORKERS’ COMPENSATION BOARD OF ONTARIO (Respondents) BEFORE: OSBORNE A.C.J.O., CATZMAN and O’CONNOR JJ.A. COUNSEL: Guy Ungaro For the appellant Gary Enskat For the respondent HEARD: May 27, 1999 On appeal from the orders of J.J. Fleury J. dated January 22, 1998 and July 30, 1998. ENDORSEMENT [1] This appeal and cross-appeal raise issues relating to three orders of Fleury J. made in a mortgage enforcement proceeding. [2] On January 22, 1998, Fleury J. found that the appellant, first mortgagee, had not properly served its notice of power of sale on the respondent, second mortgagee. As a result, Fleury J. ordered that the appellant serve the respondent through his solicitor and directed that the respondent have a period of 30 days to exercise his right to pay off the balance owing on the first mortgage. He reserved the issue of costs. [3] The appellant served its notice on the respondent in compliance with the order. The parties then entered into an agreement under which the appellant assigned its mortgage to the respondent. In return, the respondent redeemed the mortgage by paying $188,000 to the appellant. He agreed to deposit $20,000 in trust to be applied towards any further amounts found to be owing to the appellant under its mortgage. In this regard there were a number of items in dispute including payments made by the appellant for insurance premiums and hydro in relation to the mortgaged property. [4] On May 7, 1998, Fleury J. directed that the $20,000 be paid into court pending disposition of the issues in dispute. [5] On July 24, 1998, Fleury J. heard a motion to dispose of the issues that remained outstanding. On July 30, 1998, he issued reasons which decided some but not all of the issues that had been raised before him. Unfortunately neither of the parties took out a formal order with respect to his disposition of the issues raised on that motion. [6] In his reasons, Fleury J. dealt with three separate matters. (a) He ordered that the appellant was entitled to the full amount of interest payable under the terms of the first mortgage (18% after default) for the period until the payment of $188,000 on the assignment of the mortgage to the respondent; (b) He provided directions to assist the parties with a resolution of the issues relating to the appellant’s claim for reimbursement for payments it had made for insurance and hydro. He asked the parties to attempt to resolve their differences and directed that, failing resolution, the parties could speak to him. (c) Finally, he ordered that there be no costs to the appellant in relation to the motion of January 22, 1998 reasoning that it was the appellant’s ineffective attempt to serve the notice of power of sale that necessitated that motion. [7] On this appeal the appellant seeks the following: (a) an order quashing the order of Fleury J. made on January 22, 1998 (b) an order that the full amount owing to the appellant under the mortgage be paid from the $20,000 being held in court; this to include the disputed amounts for insurance and hydro payments made by the appellant; and (c) an order awarding the appellant solicitor and client costs on the motion of January 22, 1998. Order of January 22, 1998 [8] The appellant argues that Fleury J. erred in finding that the service of the appellant’s notice of power of sale that preceded the motion was ineffective. The January 22, 1998 order was an interlocutory order. An appeal of this order does not lie to this court. [9] In any event, the appellant did not appeal this order at the time it was made. He complied with it. The appellant has now assigned the mortgage to the respondents. This appeal is moot and is therefore dismissed. Further Payments to the Appellant [10] In his reasons of July 30, 1998, Fleury J. neither ordered nor refused to order the payment of the amounts claimed by the appellant. He gave directions with a view to assisting the parties to discuss and resolve the issues in dispute. If those directions constitute an order, it would be an interlocutory, not a final order, and the appeal would not lie to this court. There has been no order with respect to the payment of money and there is no order upon which an appeal to this court could be founded. In any event, it now appears that the parties are in agreement that these issues should be referred to the assessment officer in Welland. We think that is a reasonable approach. Costs of January 22, 1998 Motion [11] As a result of the above, the appellant’s appeal is reduced to an attempt to appeal the order refusing costs for the January 22, 1998 motion. For this, the appellant requires leave of this court: Courts of Justice Act, s. 133(b). Although the appellant has not sought leave, we are prepared to proceed with this issue as if it had done so. [12] Leave to appeal a costs order, standing alone, is granted only sparingly. Having regard to the amount of the costs involved, the nature of the motion and the equities between the parties, we dismiss the application for leave to appeal the costs order. CROSS-APPEAL [13] The respondent cross-appeals, asking that Fleury J.’s order of July 30, 1998 be varied to deny the appellant interest for the four month period preceding the assignment of the mortgage or in the alternative reducing the rate of interest payable for that period from 18% to 12%. [14] We agree with the reasons of Fleury J. and see no merit in the respondent's argument. The cross-appeal is therefore dismissed. [15] There will be no order for costs of the appeal or the cross- appeal. “C.A. Osborne ACJO” “M.A. Catzman J.A.” “D.R. O’Connor J.A.”