



COURT OF APPEAL FOR ONTARIO

CITATION: Sub-Prime Mortgage Corporation v.
    Kaweesa, 2021 ONCA 431

DATE: 20210616

DOCKET: M52435 (C69127)

Fairburn A.C.J.O., Harvison
    Young and Jamal JJ.A.

BETWEEN

Sub-Prime Mortgage Corporation
    and Elle Mortgage Corporation

Plaintiffs (Respondents/Responding Parties)

and

David Kaweesa
,
Jacqueline Kaweesa
and Jeremy Kaweesa

Defendants (
Appellants/Moving Parties
)

AND BETWEEN

David Kaweesa and Jacqueline
    Kaweesa

Plaintiffs by Counterclaim
(Appellants/Moving Parties)

and

Sub-Prime
    Mortgage Corporation, Elle Mortgage
Corporation and Terry Walman

Defendants by Counterclaim
(Respondents/Responding Parties)

Matthew Tubie, for the moving parties

Ranjan Das, for the responding party Terry
    Walman

Glenn Cohen, for the responding parties
    Sub-Prime Mortgage Corporation and Elle Mortgage Corporation

Heard and released orally: June 8, 2021 by
    video conference

REASONS FOR DECISION

[1]

The background to this motion is a mortgage enforcement
    action brought by a number of mortgagees who moved before Paciocco J.A. for an
    order for security for the costs of the appeal, among other things. The asset
    in issue is the heavily encumbered house owned by the moving parties. Paciocco
    J.A. granted the motion for security for costs. He also lifted the temporary
    stay on the enforcement of the writ of possession which the motion judge,
    Stinson J., had granted for 90 days, expiring May 11, 2021. The moving parties seek
    to set aside both orders and ask this court to grant an order staying Stinson
    J.s order in its entirety.

[2]

We begin with the security for costs motion. We see
    no basis for setting aside Paciocco J.A.s order in full or in part. There is
    no dispute that the correct test is as set out in r. 61.06(1) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194 and applied in
Heidari
v.

Naghshbandi,
2020 ONCA 757, 153
    O.R. (3d) 756
. The moving parties argue that Paciocco J.A. erred in
    finding that there was good reason to believe that the appeal is frivolous
    and vexatious, and that the moving parties have insufficient assets in Ontario
    to pay the costs of the appeal.

[3]

We do not agree with the moving parties that Paciocco
    J.A. erred in finding that there is good reason to believe that the grounds of
    appeal are frivolous in that they are devoid of merit, with little prospect of
    success: see
Heidari
, at

para. 10. Paciocco J.A. considered each ground of appeal advanced.

[4]

First, we see no error of law or fact in
    relation to the finding made by both Stinson J. and Paciocco J.A. that the
    pandemic did not frustrate the minutes of settlement. The pandemic was well
    underway when the minutes were executed in November 2020.

[5]

Second, we see no error on the part of Paciocco
    J.A. with respect to his treatment of the ground of appeal that the responding
    parties had failed to comply with the terms of the minutes requiring counsel to
    cooperate with the moving parties refinancing attempts. As Paciocco J.A.
    concluded, there is no evidentiary basis for that argument.

[6]

Stinson J., who presided over the underlying motion
    giving rise to this review, had extensive involvement with this matter and had
    conducted the settlement conference. One of the grounds of appeal is that Stinson
    J. erred in doing so. We do not agree with the moving parties claim that
    Paciocco J.A. erred in finding that there were grounds to believe that this
    ground was devoid of merit. In doing so, Paciocco J.A. specifically noted that r.
    50.10(1) permits pre-trial conference judges to preside at the trial of an
    action with the written consent of the parties, which was expressly provided
    for in the minutes of settlement. The minutes of settlement provided, at para.
    19, that Stinson J. would remain seized of this action  for any purpose in connection
    with implementing these Minutes of Settlement. Moreover, Stinson J.
    specifically raised the issue with counsel, who referred him to para. 19 in
    agreeing that he hear the contested motion.

[7]

In addition, we see no basis for interfering
    with Paciocco J.A.s finding that the appeal is vexatious as it has been taken
    to annoy or embarrass the responding parties or conducted in a vexatious manner:
    see
Heidari
, at para. 10. Paciocco J.A.s reasons for this finding are
    well grounded in the record and are owed deference by this court in the absence
    of palpable and overriding error or error in principle, which the moving parties
    have not shown.

[8]

With respect to the adequacy of the moving
    parties assets, the moving parties also claim that Paciocco J.A. erred in his
    application of r. 61.06(1)(a), which requires a finding that the appellant has
    insufficient assets in Ontario to pay the costs of the appeal. We see no error.
    The moving parties have not been making payments on the encumbrances on the
    house for a significant period of time and, in some cases, years. The quantum
    of accumulated interest, as Paciocco J.A. noted, which only continues to mount,
    is staggering.

[9]

With respect to the claim that Paciocco J.A.
    erred in refusing to continue the stay, it has already expired and is therefore
    moot. We see no basis for reinstating it now.

[10]

The motion to set aside the order of Paciocco
    J.A. is therefore dismissed.

[11]

Costs in the agreed amounts of $2,500 inclusive
    of disbursements and HST to Mr. Cohens clients, Sub-Prime Mortgage Corporation
    and Elle Mortgage Corporation, and $750 inclusive of disbursements and HST to
    Mr. Das client, Mr. Walman.

Fairburn A.C.J.O.

A. Harvison Young
    J.A.

M. Jamal J.A.


