



COURT OF APPEAL FOR ONTARIO

CITATION: 11534599 Canada Corp. v. Hume,
    2022 ONCA 224

DATE: 20220318

DOCKET: M52885 (C69657)

van Rensburg, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

11534599 Canada Corp.

Respondent (Moving Party/Appellant)

and

Ivylin Ricketts Hume and Weston
    Rodney Hume

Applicants (Responding Parties/Respondents)

Paul Robson, for the moving party

Elaine S. Peritz, for the responding
    parties

Heard: March 7, 2022 by video
    conference

REASONS FOR
    DECISION

[1]

The moving party 11534599 Canada Corp. (115) seeks review of an order
    of the motion judge, Paciocco J.A., granting an extension of time to perfect its
    appeal on terms that suspended the payment of interest until the appeal was
    perfected.

[2]

This motion arises out of the following circumstances.
115 held a second mortgage on the responding parties home. The
    mortgage was in default when a fire on the property forced the responding
    parties to move out. 115 took possession at that point to satisfy the
    responding parties default under the mortgage. It refused to allow the
    responding parties to pay off their mortgage or to exercise their right to have
    the mortgage assigned.

[3]

The responding parties brought an application seeking,
    among others, a declaration that 115 had taken unlawful possession of their
    home. On June 28, 2021, the application judge, Coats J., found that 115 was not
    in lawful possession of the property and ordered it to accept payment of
    $241,528.72 plus
per diem
interest of $76.58 from March 27, 2021 to
    the date of payment. Upon receipt of payment, 115 was ordered to assign the
    mortgage to a replacement lender who had already provided the responding
    parties with a mortgage commitment (the Coats J. Order).

[4]

115 filed a notice of appeal on July 14, 2021
    and moved for an urgent stay of the Coats J. Order. Justice Thorburn declined
    to grant a stay on July 27, 2021, in part because the responding parties had
    undertaken not to sell the house.

[5]

The deadline for the perfection of 115s appeal
    to this court from the Coats J. Order was August 15, 2021. On October 4, 2021, the
    motion judge granted the extension to perfect the appeal to October 8, 2021 on
    terms. He accepted that, while there was a lack of direct explanation, 115s
    delay was due to inadvertence. However, he found there was also prejudice to
    the responding parties: 115 had attempted to impose preconditions on the
    assignment of the mortgage not provided for in the Coats J. Order, and had
    effectively manufactured a stay of proceedings that it had been denied. In the
    interim, 115 continued to accumulate
per diem
payments on the mortgage
    since it had not yet been assigned.

[6]

However, the motion judge concluded the
    prejudice could be ameliorated, including by imposing a condition that no
per
    diem
payments will be owing for the period caused by the delay in
    perfecting this appeal, as required by the interests of justice. He ordered
    that
per diem
payments be suspended from the date by which the Office
    of the Registrar informed 115 that its appeal would be dismissed if not
    perfected and the date the appeal was perfected. In effect, this was a period
    of one month, between September 7 and October 7, 2021, during which the
    accumulated interest was $2,371.50. The motion judge clearly indicated that,
    but for this term, he would not have granted the extension. 115 was ordered to
    pay the respondents $3,000 in costs for the motion.

[7]

In its written materials supporting its motion, 115
    relied on three arguments. In arguing the appeal, 115 relied on a single
    argument that was not in its factum. The court invited brief written
    submissions from the responding parties. We have received and reviewed those
    submissions.

[8]

115 argued that the motion judge lacked
    jurisdiction to vary the Coats J. Order by suspending the requirement of the payment
    of
per diem
interest provided for in the Coats J. Order from the date
    that the appeal should have been perfected (September 7, 2021) to the date that
    the appeal was perfected (October 7, 2021). It argues that the motion judge, as
    a single judge, substantively altered an order, which can only be done by a
    panel of the court of appeal.

[9]

We disagree. It is unnecessary to determine
    whether, as 115 alleges, the imposition of a term disqualifying the moving
    party from
per diem
interest due to its delay was outside the jurisdiction
    of a single judge of this court when granting an extension of time to perfect
    an appeal. 115s submission depends on the premise that the motion judge
permanently
terminated its entitlement to claim the
    interest accruing during this period. That is not consistent with a fair
    reading of the motion judges order. It does not purport to alter the substance
    of the Coats J. Order; it simply suspends the payment of the
per diem
interest pending the hearing of the appeal and does not affect 115s right to
    pursue this issue in the hearing of the appeal on its merits.

[10]

Moreover, this term of the extension was
    necessary in the interests of justice to address the prejudice that the motion judge
    found would otherwise arise from the extension of the time to perfect. Without
    this term, he stated clearly that he would not have granted 115 the extension
    of time.

[11]

For these reasons, the review motion is
    dismissed. Costs of $4,000 payable to the responding parties, inclusive of
    disbursements and H.S.T.

K.
    van Rensburg J.A.

I.V.B.
    Nordheimer J.A.

A.
    Harvison Young J.A.


