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The Ontario Court of Appeal held that s. 103(6)(c) of the Courts of Justice Act can permit discharge of a CPL at a mortgagee’s request to allow a proper power of sale to close.
The court dismissed an application by a fourth- and fifth-mortgage holder to require assignment of a prior mortgage, holding the request would improperly defeat intervening mortgagees’ priority.
Court found no enforceable First Oral Agreement re Bay Right of Way and no enforceable Second Oral Agreement altering repayment; Respondents waived claim to Bay Right of Way under s.7 of APS; Respondents are in default for failure to pay principal, interest and property taxes; payments by Applicant were merged into mortgage debt; no fiduciary breach established; Applicant entitled to enforce VTB mortgage security subject to full accounting and Court approval of amounts owing.
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The court held the mortgage was collateral security tied to a land transaction, so s. 15 of the Limitation Act applied and the mortgage was statute-barred.
Documents not before the motion judge cannot be included in the Appeal Book and Compendium; treating a notice of application as a statement of claim does not import evidentiary material into the pleadings given rr.25.06 and 38.04; r.61.10(1)(f) and (i) do not permit expansion of the appeal record by reference in a factum; the proper method to add fresh evidence on appeal is a fresh evidence application. Therefore the Impugned Documents must be expunged and costs awarded.
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The court dealt with competing claims to foreclosure proceeds, held that Chan’s security claim was statute-barred, dismissed Tang/Shen’s application, and adjourned Ngan’s priority request.
The Court of Appeal allowed the appeal, held the motion judge erred by not considering that the appellant was a subsequent purchaser and by ordering specific performance on the existing record because there was no evidence whether the appellant had actual notice or whether the transfer was arm’s length; the order for specific performance was set aside and the matter remitted for trial on whether the appellant was a bona fide purchaser for value without notice entitled to protection under s.78(4) of the Land Titles Act or provisions of the Mortgages Act, with interim rent directions.
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Assignment of the TD mortgage to the Browns was valid, but TD could not unilaterally dispose of an existing foreclosure order without leave; the Browns’ conduct denied the mortgagor an opportunity to redeem for the amount fixed in the original order plus proper adjustments, rendering the subsequent foreclosure order improper and authorizing the court to set aside the deed and require redemption on the correct sum subject to equitable adjustments and expenses.
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The panel concluded there was no basis to interfere with Doherty J.A.'s orders because the appellant had not paid the mortgage debt, could not raise funds to refinance despite indulgence, and therefore had no right to retain possession; the motion to restore possession was dismissed and costs awarded.
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The court held that a daily extension fee was not secured by the mortgage and was therefore not invalid under s. 8(1) of the Interest Act.
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