



COURT OF APPEAL FOR ONTARIO

CITATION: Meridian Credit Union Ltd. v. Chijindu, 2019 ONCA
    425

DATE: 20190522

DOCKET: C66067

Sharpe, Pepall and Roberts JJ.A.

BETWEEN

Meridian Credit Union Ltd.

Plaintiff
    (Respondent)

and

Christian Chukwuedozie
    Chijindu and Nkiruka Chijindu

Defendants (Appellants)

Christian C. Chijindu, in person and for the appellant,
    Nkiruka Chijindu

Duncan M. MacFarlane, for the respondent

Heard and released orally: May 17, 2019

On appeal from the
    judgment of Justice S.J. Woodley of the Superior Court of Justice, dated September
    27, 2018.

REASONS FOR DECISION

[1]

The appellants admit that, by transferring and further encumbering the
    property without the respondent mortgagees consent, they committed acts of
    default.  They argue, however, that the motion judge erred by granting summary
    judgment to enforce the mortgage on the basis of those defaults, and submit that
    by taking three months payments by way of prearranged withdrawal from the appellants
    bank account after giving notice of default, the respondent waived the default.

[2]

We do not accept that submission.

[3]

Accepting monthly payments did not amount to waiver under
    the terms of the mortgage, which provides that the mortgagee may waive default
    in writing, nor did accepting payments meet the legal test for waiver, laid
    down in
Saskatchewan

River Bungalows Ltd. v. Maritime Life Assurance
    Co.
,
[1994] 2 S.C.R. 490,
    which requires
inter alia
the
    communication of an unequivocal and conscious intention to abandon the right to
    rely on the deficiency or default. The motion judge found that acceptance of
    three payments did not satisfy that test and her conclusion is amply supported
    by the record.

[4]

The respondent concedes
    that para. 2 of the judgment should be amended to reflect the interest payments
    made by the appellants on the line of credit up to the date of judgment.
    Accordingly, para. 2 shall be amended as follows:

THIS
    COURT FURTHER ORDERS that the Defendants shall pay to the Plaintiff the sum of
    $74,971.31, due under the line of credit dated May 24, 2016, and post-judgment
    interest at the rate of 3% per annum.

[5]

The appeal is allowed,
    but only to the extent of the concession relating to pre-judgment interest.
    Otherwise, the appeal is dismissed. Costs to the respondent, fixed at $5,000,
    inclusive of disbursements and taxes.

Robert
    J. Sharpe J.A.

S.E.
    Pepall J.A.

L.B.
    Roberts J.A.


