





CITATION: The Jorg Trust v. Sussman, 2011 ONCA 45



DATE: 20110119



DOCKET: C52228



COURT OF APPEAL FOR ONTARIO



Weiler, Gillese and Blair JJ.A.



BETWEEN



The Jorg Trust and Marianne Reichert



Appellants (Plaintiffs)



and



Murray
          Sussman, Sandy Sussman, Mortgage Funding
, Gordon Gampbell,


McFlow Capital Corp.
,
          the Premium Group and
Andy Pollack



Respondents (Defendants)



Hans Jorg Reichert for the Jorg Trust and Marianne Reichert,
          in person



Hilary Book for the respondents, McFlow Capital Corp. and Andy
          Pollack

Paul J. Daffern for the respondents Murray Sussman, Sandy
          Sussman and Mortgage Funding



Heard and released orally: January 12, 2011



On appeal from the order of Justice James M. Spence of the
          Superior Court of Justice dated May 11, 2010.



ENDORSEMENT



[1]

This appeal arises in the context of an action by The Jorg Trust and
    Mrs. Reichert (the appellants) against the Mortgagees and Andy Pollack for
    damages arising out of the Mortgagees refusal to renew a $560,000 mortgage on
    property in Schomberg, Ontario.  The main issue in the action is whether the Mortgagees
    did or did not agree to renew the mortgage.

[2]

There was a motion for interim relief of various kinds before Spence J.
    on May 11, 2010.  He made two orders that are at issue on this appeal.  First,
    he struck the appellants claim against the respondent Andy Pollack personally,
    as disclosing no cause of action against him in his personal capacity. 
    Secondly, while granting an interlocutory injunction restraining the Mortgagees
    from exercising their rights to enforce the mortgage prior to October 30, 2010,
    the motion judge imposed certain terms as a condition of that equitable relief
    being granted.  The terms were that the appellants pay the requested renewal
    fee of $22,000 and make five monthly payments of $9,200 each to be applied
    against principal and interest.  It is these orders that the appellants seek to
    set aside.

[3]

Although we understand the personal difficulties the underlying
    circumstances may have caused the appellants, the issues before us are quite
    narrow, and the appeal must be dismissed.

[4]

Whatever Mr. Pollack is alleged to have done or not to have done, there
    are no allegations in the statement of claim that would support an action
    against him personally in that regard.  As pleaded, the allegations amount to
    no more than a claim that he was acting in his capacity as a representative of
    the Mortgagees, not in any personal capacity.

[5]

An interlocutory injunction is a discretionary equitable remedy.  In the
    circumstances, the motion judge was entitled to impose the conditions he did. 
    As the motion judge said, the appellants should not have a free ride.  If, as
    they say, the mortgage has been renewed  and the effect of the motion judges
    order was to renew it for a further six months  the renewal fee or some
    portion thereof (a condition or renewal) ought to be paid, and as long as the
    mortgage is outstanding, the mortgage payments required should be paid as
    well.  Mr. Reichert says that the appellants have made these payments.  He now
    asks that we order the amounts be paid back or paid into court.  We would not
    accede to this request, as in our view it was open to the motion judge, as we
    have indicated, to impose those conditions as terms of granting the equitable
    relief he did.

[6]

The appellants asked us to issue a further injunction restraining the
    defendants from acting on the notice of sale pending the disposition of the
    trial.  That requested relief is beyond the scope of this appeal, and, if it is
    to be pursued, is properly pursued at the Superior Court level.

[7]

The appellants made a number of other submissions, but they relate to
    the outstanding issues to be determined in the action concerning their claim
    for damages and to various admittedly difficult circumstances in which the
    Reicherts find themselves as a result of their problems with the property. 
    These complaints do not relate to the issues we are asked to determine today.

[8]

The appeal is therefore dismissed.

[9]

Costs of the appeal are payable by the appellants to the respondents
    McFlow Capital and Andy Pollack in the amount of $3,500 and to the respondent
    Sussman Group in the amount of $2,500, both inclusive of disbursements and all
    applicable taxes.

Karen M. Weiler J.A.

E.E.
    Gillese J.A.

R.A.
    Blair J.A.


