2017 ONSC 6798, 2017 ONSC 6798

CITATION : TD Bank v. Perodeau, 2017 ONSC 6798 COURT FILE NO.: 16-68632 DATE: 2017/11/14 SUPERIOR COURT OF JUSTICE - ONTARIO RE: THE TORONTO DOMINION BANK, Plaintiff AND: SCARLETT PERODEAU and DOMENIC ANTOINE CHARLES DAUNCEY PERODEAU, Defendants BEFORE: Mr. Justice Calum MacLeod APPEARING: Sarah Willis, for the Plaintiff Domenic and Scarlett Perodeau, in person HEARD: November 14 th , 2017 ENDORSEMENT [ 1 ] This is a motion for

summary judgment by the Toronto-Dominion Bank pursuant to a mortgage it holds over the lands of the defendants located in Tweed, Ontario. [ 2 ] At the outset, the defendants complained that the action and the motion should have been brought in Belleville. Rule 13.1.01 (3) was introduced in 2014 to require that all mortgage actions be brought in the region where the land is located in a county designated by the Regional Senior Justice for that purpose. In the East Region, all of the major judicial centres are designated and that includes both Ottawa and Belleville.

The designation of judicial centres under this rule is set out in the consolidated provincial practice direction. [ 3 ] Under a strict reading of the rule, there is no prohibition on bringing mortgage actions in Ottawa but a defended mortgage action regarding lands situate in Tweed (in the County of Hastings) would readily have been transferred to Belleville on motion had such a motion been brought under Rule 13.1.02.

In fact it is the general practice that if the action is not commenced where the land is located, the action will be transferred on consent if the action is defended. [ 4 ] Regardless, the parties were present and ready to proceed. Rule 13.1.01 is not a rule that deprives the court of jurisdiction. It would not have been efficient or fair to adjourn the matter to Belleville and I allowed the motion to proceed. [ 5 ] The defendants were present in person. Mr. Perodeau had served a draft affidavit and attempted to file it but it was not accepted at the counter.

It appears that is because the affidavit of service was sworn but the affidavit itself was not. In an effort to do justice and to be fair to the defendants, I agreed to hear the evidence orally. Under oath, Mr. Perodeau confirmed the contents of his affidavit and he also gave additional evidence. [ 6 ] The evidence of the defendant discloses that on several occasions the parties were granted indulgences by the mortgagee.

On a previous occasion when there was also litigation, the bank permitted the parties to put the mortgage back into good standing upon payment of an agreed sum of money and then renewed the mortgage.

Similar offers were made on this occasion but regardless of whether the offer should have been in writing or is properly reflected in the affidavit material, there is no evidence that the defendants accepted the offer nor that the defendants were in a position to do so. [ 7 ] In fact the defendants have suffered a series of misfortunes including job losses, failure of a business, health issues and a house fire for which they did not have insurance.

I note that the defendants blame the plaintiff for the lack of insurance because they previously had insurance with TD Insurance and apparently they believe the premiums they were offered for insurance renewal were unaffordable. [ 8 ] There is however no question that the mortgage is in default, that it was in default at the time that the plaintiff issued power of sale and commenced this proceeding, that the mortgage has since matured and it has not been paid. [ 9 ] The principal sum owing under the mortgage as of the date of default was $187,059.85.

The amount claimed as owing as of today is $200,423.27 which includes the principal, the tax account, interest and costs. The mortgagee also claims any additional costs of enforcement as provided in the standard charge terms. [ 10 ]

Summary judgment is appropriate because there is no doubt that the defendants are indebted to the mortgagee in the amount of at least the $194,253.85 set out in the statement of claim (which does not include costs).

I am not however able to ascertain the amount of the mortgage debt with precision because evidence is lacking concerning the current status of the tax account and property taxes, credit for any payments that were made by the defendants and the precise calculation of interest and costs to the date of judgment. [ 11 ] Rule 20.04 (3) provides that where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order trial of that issue or grant judgment with a reference or trial of an issue. This is the appropriate disposition.

The plaintiff will therefore have judgment against the defendants for $194,253.85 as set out in the statement of claim and such additional amounts as may be found due under the mortgage on a reference to the Registrar at Belleville. At its option, the plaintiff may abandon the excess and request me to fix its costs or it may proceed to take out an appointment for the reference pursuant to Rule 55.02 and

64.06. The plaintiff shall have 30 days to exercise this option. [ 12 ] There will also be judgment for possession. The plaintiff is entitled to take possession of the property in order to preserve the value of the security and to exercise its power of sale. The judgment for possession will be stayed for 30 days at the expiry of which the plaintiff may move for a writ of possession under Rule 60.10.

That motion may be brought in Belleville. [ 13 ] I am deferring the judgment for possession to permit the plaintiff to elect how to proceed and also because there is now evidence there may be subsequent encumbrancers who were not put on notice. No abstract of title is before the court. [ 14 ] As the defendants are representing themselves, plaintiff’s counsel may arrange an appointment with my office to settle the form of the order. Mr. Justice C. MacLeod Date: November 14, 2017