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The Court of Appeal dismissed an appeal from summary judgment enforcing a second mortgage, finding no genuine issue for trial and lifting the stay.
The Court of Appeal for Ontario dismissed an appeal from an order refusing to set aside a default judgment in a mortgage enforcement case.
The Court of Appeal dismissed Mrs. Ercolani’s appeal from summary judgment enforcing a mortgage, holding that related third-party and regulatory proceedings did not justify a trial or stay.
On a motion pending appeal, the Court of Appeal for Ontario dismissed Tennyson Park’s request for a stay of vacant-possession orders in favour of Manulife Bank of Canada.
Time to file the notice of appeal was extended because the appellants demonstrated a bona fide intention to appeal, the delay was very short and reasonably explained by their self‑representation, and the respondent suffered no prejudice; the respondent was ordered to provide an explanatory statement of related actions and the appellants must file their notice within 30 days of receiving that statement.
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Reinstatement and extension were refused because the appellant failed to demonstrate a continuing intention to prosecute the appeal and failed to adequately explain the lengthy delay; the asserted grounds of appeal lacked sufficient merit (the motion judge reasonably interpreted the mortgage regarding the three-month interest bonus and there was no impermissible escalation of the base rate); and the equities and prejudice favored the respondent given long-standing default and subsequent charges on title. Consequently the administrative dismissal stands, time to perfect is not extended, and th…
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The motion for an extension of time was dismissed because the proposed appeal lacked merit—the motion judge reasonably exercised his discretion in awarding solicitor-client costs under the mortgage's standard charge terms, no error of principle or plain wrongness was shown, the borrowers' asserted earlier $20,000 order was not in the record nor argued below, and appellate courts will not ordinarily entertain new arguments not raised at first instance; accordingly justice did not require granting an extension.
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The Court refused to intervene because the motion judge reasonably applied Mountain View Farms factors, found the appellant was aware of the proceedings and provided no plausible excuse, determined the appellant had no arguable defence as the loan was repayable by August 31, 2022 per the agreement and a charge was properly registered, and concluded that the equities and integrity of the administration of justice favored the respondent; accordingly the default judgment and writ of possession remain in place and the appeal is dismissed.
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The appeal is dismissed because the application judge’s acceptance of the respondent’s expert accounting (with the tax adjustment) and her resultant award was within the range of permissible conclusions; no error of principle, misapprehension of evidence, or palpable and overriding error was shown, and Ms. Lynch had taken into account interest under both the mortgage and the default judgment so the appellant failed to demonstrate a materially different outcome would result from its approach.
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The Court held the motion judge did not err: the appellant failed to demonstrate that lack of accommodation or denial of further adjournment created a triable issue or denied procedural fairness, the central issue of indebtedness under the mortgage was uncontested and supported by the record, and the summary judgment and costs award were therefore affirmed.
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