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The court set aside an order nisi in a foreclosure matter after defective substituted service, premature hearing, and prejudicial interest-rate error.
Foreclosure petition: the court excluded contested late fees and a renewal fee, and held post-maturity interest must be calculated under the Court Order Interest Act.
The appeal was dismissed as moot because the property had already been sold and the appellants failed to obtain a stay pending appeal, so setting aside the Notice of Sale could not restore the appellants' ability to redeem; disputes about the correctness of amounts owing, including alleged Interest Act violations and contested charges, are matters for the outstanding mortgage action given deficiencies in the record and evidentiary issues.
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The Court of Appeal held that post-judgment interest kept running while judgment funds were held in trust pending appeal, and dismissed the appeal.
The appeal is dismissed because the Forbearance Agreement and the June 6, 2016 waiver by the borrower precluded an Interest Act defence, the appellants as directing minds who participated and were represented consented to that waiver, and therefore the guarantees are enforceable for the amounts as settled; the court did not need to decide whether the Loan Agreement independently violated s.4 of the Interest Act.
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The numbered company (3278216 Nova Scotia Limited) was the intended Purchaser and is liable; Geoff Keddy is not personally liable because he did not execute the contract as Purchaser and was not made a guarantor; Leo Lopez signed as Co-Purchaser and is jointly and severally liable under paragraph 3; the interest/service charge language was too vague to support an 18% annual rate so only statutory 4% prejudgment interest was awarded plus filing and service costs, producing a judgment for the Claimant against the numbered company and Lopez for $12,708.03.
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The court held a $2,250 mortgage charge for three months’ interest in lieu of notice was not enforceable and granted the petitioners repayment, with costs on Scale B.
The court held the loan agreements and mortgages were not uncertain, applied the reinvestment principle to monthly interest payments, and found no Interest Act concealment.
Claimant substantially performed the project management contract; delays and minor deficiencies did not amount to breach justifying non-payment; the contractual interest clause was ambiguous and noncompliant with s.4 of the Interest Act so statutory rates apply (5% on expenses), and 4% prejudgment interest applies to the management fee; interest runs from the date the claimant's duties ended (final occupancy permit) to judgment, resulting in judgment for principal, adjusted interest and filing costs.
Source excerpt
The Court of Appeal set aside a contractual interest award of 24% per annum, finding no clear agreement to that rate, and substituted 5% under the Court Order Interest Act.
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