2010 ONSC 6446, 2010 ONSC 6446

CITATION : Joseph Lebovic Charitable Foundation v. Bute , 2010 ONSC 6446 OSHAWA COURT FILE NO.: 63790/09 DATE: 20101123 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) JOSEPH LEBOVIC CHARITABLE FOUNDATION ) ) ) Jason R. Cherniak, for the Plaintiff Plaintiff ) - and - ) ) MARLON VANDITE BUTE and GANYMEDE ALEINA BUTE Defendants ) ) ) Self-Represented ) ) HEARD: November 19, 2010 ENDORSEMENT LAUWERS J. [ 1 ] The plaintiff moves for

summary judgment in a mortgage action on a covenant, for possession of the property and for damages. [ 2 ] On August 23, 2007, the defendants granted the plaintiff a vendor take-back mortgage for a term of three years securing the sum of $216,000.00 with interest at the rate of 4.5 per cent per year. [ 3 ] The first default occurred on August 23, 2008 and since then the mortgage has never quite been in good standing. [ 4 ] By September 1, 2009, arrears had accumulated to $3,348.06.

A Notice of Sale was served on September 14, 2009 requiring payment 35 days later, by October 19, 2009. [ 5 ] On November 3, 2009, the plaintiff commenced this action. On that day, according to the plaintiff’s own accounting records, the amount outstanding was $618.22.

Without regard to the payment priority provisions of the mortgage, it appears that the defendants had tendered a number of NSF cheques in respect of which fees of $125.00 were added to the mortgage debt, legal fees associated with the issuance of the Notice of Sale in the amount of $131.25 and amounts in respect of the Notice of Sale itself. [ 6 ] While the Statement of Claim alleged that the plaintiff had paid tax arrears of $5,938.98 to the Town of Ajax before it was issued, it turns out that while the plaintiff’s cheque was dated December 1, 2009, it was not cashed until later in December. [ 7 ] The defendants argue that the error in the Statement of Claim is fatal and obliges the plaintiff to start over.

I disagree. There is no doubt that on the date that the Statement of Claim was issued there was an existing default under the mortgage, both in terms of the amount owed directly to the plaintiff, and in respect of tax arrears owed to the Town of Ajax. Failure to pay taxes is itself

an act of default under the mortgage. [ 8 ] It is common ground that the defendants have made no payments on the mortgage or in respect of taxes on the property since

November 23, 2009. The mortgage expired by its own terms on August 23, 2010. [ 9 ] Mr. Cherniak, for the plaintiff, submits simply that when the Notice of Sale was issued because of outstanding arrears at that date, the plaintiff had reached the conclusion that the Butes were unreliable mortgagors. The plaintiff concluded that the mortgagors could simply not afford the unit and initiated this action. The Butes made no efforts to seek relief under

section 23 of the Mortgages Act . Mr. Bute frankly admitted that once the plaintiff had paid the tax arrears owed to the Town of Ajax, the amount in arrears was simply too much for him to handle. He had wanted to reach an arrangement to pay off those tax arrears on a monthly basis with either the Town of Ajax or the plaintiff, but the plaintiff declined on the basis that previous payment plans had been unsuccessful. [ 10 ] It is unfortunate that this day has arrived for the defendants but the plaintiff’s evaluation that the defendants cannot afford the unit seems to be correct.

There is no point in prolonging things. The plaintiff is entitled to judgment. The plaintiff is also entitled to costs on a substantial indemnity basis under the standard charge terms and I fix those in the amount of $8,500.00. [ 11 ] Judgment accordingly. ___________________________ P.D. Lauwers J. RELEASED: November 23, 2010