2257573 Ontario Inc. v. Furney

2257573 Ontario Inc. v. Furney

The motion judge did not err in exercising his discretion to apply notional severance for illegal interest and to award judgment for the principal sums advanced (with interest severed to lawful rates); his factual findings on amounts advanced were supported by the evidence and not palpably wrong; appeals dismissed.

Citation
2022 ONCA 505
Parties
Plaintiff/defendant by Counterclaim (respondent): 2257573 Ontario Inc.; Defendant/plaintiff by Counterclaim (appellant): Alex Aiden Fitzgerald Furney (also known as Alex Furney); Defendant/plaintiff by Counterclaim (appellant): Maryam Furney; Defendant/plaintiff by Counterclaim (appellant): Hassan Hashemi
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
30 June 2022
Procedural Posture
Civil / Appeal From Superior Court Summary Judgment
Outcome
Appeals dismissed; judgment below affirmed
Legal Topics
Summary Judgment, Personal Guarantees, Notional Severance, Mortgage Discharge Statements, Illegal Interest Under S.347 Criminal Code, Calculation of Mortgage Indebtedness, Apprehension of Bias, Charter Ss.7, 12, 15
Source Language
English
Mortgage Law Contract Property Law Civil Procedure Criminal Law (usury) Constitutional Law Summary Judgment Personal Guarantees +6 more

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Parties

2257573 Ontario Inc.

Plaintiff/defendant by Counterclaim (respondent)

Alex Aiden Fitzgerald Furney (also known as Alex Furney)

Defendant/plaintiff by Counterclaim (appellant)

Maryam Furney

Defendant/plaintiff by Counterclaim (appellant)

Hassan Hashemi

Defendant/plaintiff by Counterclaim (appellant)

Procedural Posture

Civil / Appeal From Superior Court Summary Judgment

Legal Issues

  1. 1 Whether any interest should be awarded under mortgages given the respondent charged a criminal rate and provided deficient discharge statements
  2. 2 Whether the motion judge erred in calculating principal advances under specific mortgages
  3. 3 Whether appellant Hashemi’s Charter and apprehension of bias allegations had merit

Ratio Decidendi

The motion judge did not err in exercising his discretion to apply notional severance for illegal interest and to award judgment for the principal sums advanced (with interest severed to lawful rates); his factual findings on amounts advanced were supported by the evidence and not palpably wrong; appeals dismissed.

Court Disposition

Appeals dismissed; judgment below affirmed

Orders

  • Appeals dismissed
  • Judgment of Justice Turnbull dated October 14, 2020 (2020 ONSC 6002) affirmed, including possession of the mortgaged properties and judgment for amounts awarded by the motion judge