Everest Finance Corporation v. Jonker

Everest Finance Corporation v. Jonker

The Court of Appeal allowed the appeal holding the motion judge erred in reducing contractual interest arrears and contractual full indemnity costs for pandemic delay; there was no legal authority to reduce amounts contractually due for the reasons given by the motion judge, and the judgment below was varied to restore the amounts awarded by the appellant.

Citation
2023 ONCA 87
Parties
Plaintiff (appellant): Everest Finance Corporation; Defendant (respondent): Richard John Jonker; Defendant (respondent): France Scimmi
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
8 February 2023
Procedural Posture
Civil Appeal (mortgage Power of Sale; Summary Judgment) / Decision on Appeal (court of Appeal Written Reasons)
Outcome
Appeal allowed; judgment below varied
Legal Topics
Summary Judgment, Power of Sale, Mortgage Interest Arrears, Contractual Indemnity Costs, Judicial Discretion, Delay Due to COVID 19
Source Language
English
Civil Procedure Mortgage Law Contract Law Enforcement Costs Summary Judgment Power of Sale Mortgage Interest Arrears +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Everest Finance Corporation

Plaintiff (appellant)

Richard John Jonker

Defendant (respondent)

France Scimmi

Defendant (respondent)

Procedural Posture

Civil Appeal (mortgage Power of Sale; Summary Judgment) / Decision on Appeal (court of Appeal Written Reasons)

Legal Issues

  1. 1 Whether a motion judge may reduce interest due under a contractual mortgage obligation because of delays in the court system
  2. 2 Whether a motion judge may reduce contractual full indemnity costs to a partial indemnity by exercise of discretion
  3. 3 Whether the respondents were entitled to any reduction given they did not dispute default

Ratio Decidendi

The Court of Appeal allowed the appeal holding the motion judge erred in reducing contractual interest arrears and contractual full indemnity costs for pandemic delay; there was no legal authority to reduce amounts contractually due for the reasons given by the motion judge, and the judgment below was varied to restore the amounts awarded by the appellant.

Court Disposition

Appeal allowed; judgment below varied

Orders

  • Paragraph one of the judgment below varied to increase the amount to $384,099.01
  • Paragraph five of the judgment below varied to increase costs to $34,846.85