POSSESSION – Plaintiff granted
writ of possession but only entitled to
enforce writ if defendants did not pay
full amount due under mortgage by
June 15, 2011.
Motion by plaintiff for leave to obtain a
writ of possession for a property and other
relief. Motion by defendants for an order
setting aside a final order of foreclosure
obtained by plaintiff and seeking a mortgage payout statement. Defendants purchased the property from plaintiff and her
husband, who was now deceased. They
took back a mortgage for $62,000. In 2010
plaintiff received a notice indicating that
defendants were in arrears of payment of
municipal taxes in the amount of $7,755.
Plaintiff wrote to defendants advising them
that their mortgage was in default. Defendants advised that arrangements had been
made with the municipality to pay the taxes
within one year. Plaintiff, without further
notice, arranged full payment of the municipal taxes and began a foreclosure action
against defendants. In April 2011 defendants accepted a mortgage commitment for
$72,000. A few days later the mortgage
company determined that plaintiff had,
without notice, obtained default judgment
of foreclosure and registered the judgment.
HELD: Motions granted in part. Default
judgment was set aside. It was obtained in
circumstances where defendants had been
led to believe that their response had not
yet been required. Given the evidence that
there may be significant equity in the property, they should be given the opportunity
to realize that equity. The registration of the
judgment against the property was vacated.
Plaintiff was granted judgment for $48,910
and possession of the property. Leave was
granted to plaintiff to obtain a writ of possession, not to be enforced before June 15,
2011. Defendants had until that date to
make payment in full of the entire amount
due under the mortgage. They were to provide plaintiff with proof that the property
was covered by fire insurance in an amount
of not less than $75,000 with plaintiff as
mortgagee. If defendants failed to retire the
mortgage in full by June 15, 2011, plaintiff
was entitled to sell the property by power of
sale without further notice.
Lashbrook v. Larson, [2011] O.J. No.
2249, Ont. S.C.J., Gordon J., May 18/11.
Digest No. 3108-017 (Approx. 5 pp.)
refinance the mortgage loan, defendants’
mortgage was to be postponed to a new first
mortgage for $320,000 and the funds from
that were to be paid to defendants.
HELD: Motion dismissed. Plaintiffs had
obtained a mortgage commitment for
$320,000 but it was subject to certain conditions, including payment of tax arrears. If
the conditions were met, plaintiffs would
only have available $259,924. When plaintiffs did not comply with the order, defendants delivered notices of power of sale and
would be in a position to sell the properties
after May 26, 2011. The variations proposed
sacrificed the fairness to both parties that
the court tried to achieve. It is unfair that
plaintiffs use the refinanced amount to pay
unsecured creditors ahead of defendants
and to fund the litigation. There was evidence that the defendants had advanced at
least $320,000 to plaintiffs and, subject to
plaintiffs’ disputed counterclaims, they were
entitled to repayment of at least that sum.
Mischev v. Shah, [2011] O.J. No.
2363, Ont. S.C.J., Perell J., May 20/11.
Digest No. 3108-018 (Approx. 5 pp.)
OCCUPATIONAL
HEALTH & SAFETY
APPLICATION OF ACT – Swimming
pool at applicant resort was a workplace
within meaning of the Occupational
Health and Safety Act (Ont.).
Application for judicial review of a decision of the Ontario Labour Relations Board
which upheld, on appeal, an order of
respondent B in his capacity of an inspector
under the Occupational Health and
Safety Act (Ont.). The order related to an
occurrence at applicant’s premises in which
a guest drowned in the unsupervised swimming pool at the resort. B found that applicant failed to notify the director of a fatal
injury which occurred at its property.
Applicant argued that its entire resort
could not be considered a “workplace”
within the meaning of the Act. Applicant’s
position on the proper construction of the
term “workplace” was one which required
the physical presence of a worker at a place
where a worker worked at the time at
which an occurrence with a guest or other
person takes place. As no employee was
working at the swimming pool when the
occurrence took place, the swimming pool
was not a workplace.
HELD: Application dismissed. The
board found that applicant’s property was
a fixed workplace. The absence of a worker
at the swimming pool premises at the time
of the occurrence did not diminish the fact
that it was a workplace. The court was not
persuaded that the conclusion reached by
the board was unreasonable.
Blue Mountain Resorts Ltd. v. Bok,
[2011] O.J. No. 2256, Ont. Div. Ct., per
Low J. (Wilson and Swinton JJ. concurring), May 18/11. Digest No. 3108-019
(Approx. 6 pp.)
defendant K, her former spouse, and the
County to set aside the transfer to the
County. She sought a judgment ordering
that the property be transferred to her and
to change the location of an intersection
planned by the County as part of the road
re-alignment with the acquired parcel. She
argued that the conveyance by K was a
fraudulent conveyance and that the County
ought to have sought her consent. Plaintiff
and K had entered into a separation agreement in September 2006 which provided
that K would pursue a severance application and transfer the severed piece to plaintiff in lieu of support.
HELD: Motion granted. The validity or
sufficiency of plaintiff’s claim against K
was not in issue. If he breached the separation agreement, plaintiff may be entitled to
damages, since the conveyance was
allegedly in lieu of support. The claim
against the County, however, had no merit.
Plaintiff did not establish the basis for a
claim that the conveyance was a fraudulent
conveyance or that it should be deemed
void. The County was entitled to rely on
plaintiff’s executed option to purchase,
allowing it to purchase the property, which
they did. There was no evidence of duress
sufficient to nullify her signature. Complaints about the location of a planned
road intersection, in and of themselves, no
matter how valid, were insufficient to permit the intervention of the courts.
Burke v. Kidd, [2011] O.J. No. 2419,
Ont. S.C.J., Ray J., May 24/11. Digest
No. 3108-020 (Approx. 3 pp.)
TORTS
DEFAMATION – Plaintiff awarded
damages of $15,000 for defamatory
statements made by defendant.
Classifieds
MISSING HEIRS
Cogan & Assoc. International
probate research, locators
of missing heirs. Telephone:
519-770-0500, Fax: 519-770-0059.
www.heirtrace.com
MORTGAGES
POWER OF SALE – Court rejected
application by plaintiffs to extend time
to obtain new mortgage financing and to
reduce amount payable.
Application by plaintiffs for an order
varying a March 16, 2011 order to extend
the time to obtain mortgage financing until
May 30, 2011, reduce the mortgage payment from $320,000 to $250,000, discharge defendants’ mortgage on the property and granting them leave to register a
certificate of pending litigation. For the
past year defendant mortgagees had
attempted to sell two mortgaged properties
under power of sale. Their plans had been
thwarted by a series of interlocutory injunctions granted to plaintiffs, who were the
mortgagors. The last one was on March 16,
2011 when the power of sale was enjoined
on certain terms and conditions. The conditions were that the writ of possession was
to be suspended to allow plaintiffs to
RICHMOND/JOHN
Steps to courthouses, newly
renovated brick & beam, shared
amenities, 4 offices & sec. stations.
Virtual and satellite arrangements
available. Call Mark Ross
416-593-7107.
CORPORATE LAWYER
(1-2 years)
Conestoga-Rovers & Associates
(Waterloo, ON) requires a junior
lawyer with experience in contract
& insurance law to review client
engineering, consulting &
construction contracts, maintain
corporate records, review leases
(property & equipment), assist &
manage litigation matters & risk
management. Will provide legal
resources and assistance to staff
as required. Send resumes to
scarter@crawworld.com;
www.crawworld.com
RE: ESTATE OF
THOMAS STEWART DEWAR
Anyone having any knowledge of
a Will or Codicil of the late Mr.
Thomas Stewart Dewar of the City
of Toronto, in the Province of
Ontario who died on May 21, 2011
is requested to contact Robin
Sorys, of RLS.H.R Solutions at
416-574-0739 or e-mail to
RLS.HRSolutions@gmail.com
SALE OF LAND
TO PLACE
YOUR
FRAUDULENT CONVEYANCE –
Plaintiff unable to establish fraudulent
conveyance sufficient to set aside transfer of property from former common-law spouse to defendant County.
Motion by defendant County for summary judgment dismissing plaintiff’s claim
to set aside conveyance of land by her former common-law spouse. Plaintiff sued
CLASSIFIED AD
Please Call
Lynda Mills
905-415-5804 or
1-800-668-6481 ex. 804
lynda.mills@lexisnexis.ca
JR. LITIGATION ASSOCIATE
A firm with a practice focused on
mortgage lending, real estate
development and litigation in
downtown Toronto seeks a Junior
Litigation Associate with 1 year’s
experience. Familiarity with the
Construction Lien Act and debt
enforcement procedures would be
an asset. We will consider recent Bar
Administration Graduates with
appropriate experience. Apply to
resumes@bsrlawpractice.com
RE: ESTATE OF
GEORGE BENJAMIN MILLAR
Anyone having knowledge of a Will
of the late George Benjamin Millar
a.k.a. George Benjamin Jones, of
the City of Hamilton, in the Province
of Ontario, who died on the 8th of
May, 2011, is requesting to contact
Guyatt, Gaasenbeek & Millikin
Barristers & Solicitors, at 401-20
Jackson Street West, Hamilton,
Ontario, L8P 1L2. Telephone:
905-528-8369, Fax No.: 905-528-8066,
email: keith@ggmlaw.ca
