



COURT OF APPEAL FOR ONTARIO

CITATION: The Canada Trust Company v. Potomski, 2015 ONCA 324

DATE: 20150508

DOCKET: M45044 (C60375)

Pardu J.A. (In Chambers)

BETWEEN

The Canada Trust Company

Plaintiff (Respondent)

and

Robert Joseph Potomski

Defendant (Moving Party/Appellant)

Robert Joseph Potomski, acting in person

Jeffrey Kukla, for the respondent

Heard: May 4, 2015

ENDORSEMENT

[1]

The appellant moves for a stay of enforcement of a writ of possession
    granted in a mortgage action and for an extension of time to perfect his
    appeal.

[2]

The appellant granted a mortgage to the respondent on January 20, 1992.
    The mortgaged property is located in Windsor, Ontario. Under the terms of the
    mortgage agreement, the respondent is entitled to recover its costs associated
    with the mortgage, such as fees and disbursements incurred in enforcement
    proceedings, from the appellant.

[3]

On April 27, 2011, the appellant entered a mortgage renewal agreement
    with the respondent. This agreement provided that the Property Tax Payment
    amount will be adjusted annually in accordance with our procedures. These
    procedures permitted the respondent to increase or decrease the monthly
    Property Tax Payment in order to reimburse the respondent for amounts debited
    to the Tax Account for the appellants benefit. The Tax Account is an account
    on the respondents books in relation to the mortgage. Such adjustments would
    change the quantum of the appellants monthly mortgage payments.

[4]

The respondent claims the appellant defaulted on the mortgage six times
    between 2005 and 2008. Following the appellants November 2008 default, the
    respondent issued a notice of sale and eventually obtained an order for summary
    judgment, including costs on a substantial indemnity basis. Although the
    respondent did not exercise its power of sale and the mortgage was ultimately
    renewed, a $13,278.20 deficit was added to the appellants Tax Account in July
    2011. This was the amount claimed by the respondent for its costs on the
    summary judgment proceedings. The appellants monthly mortgage payments were
    increased to reflect the $13,278.20 cost award.

[5]

The appellant again defaulted on the mortgage on October 17, 2011. The
    appellant made payments on October 14, 2011 and November 17, 2011, which were
    applied to outstanding amounts owing for previous missed payments. The
    appellant did not make any further payments between November 17, 2011 and the
    motion before Platana J. on September 22, 2014.

[6]

In December 2011, after attempting to make a mortgage payment, the
    appellant was informed that the quantum of his monthly mortgage payment had
    increased by about 25 per cent. After making multiple inquiries, he was told
    that his monthly payments had been increased to account for the $13,278.20 deficit
    in his Tax Account. The appellant claimed he did not know what liability the
    deficit represented. He continued to make inquiries with the respondent
    regarding the reason for the increase to his monthly payments and did not pay his
    monthly mortgage payments. The respondent issued a notice of sale on June 15,
    2012. According to the respondent, as of May 21, 2013, the amount owing by the
    appellant under the mortgage was $51,732.74.

Justice Platanas Orders

[7]

The respondent brought a motion for summary judgment seeking payment in
    the amount of $51,732.74 plus interest, possession of the mortgaged property,
    leave to obtain a writ of possession for the property, and post-judgment
    interest.

[8]

The appellant did not dispute that the amount charged to his Tax Account
    was accurate. However, he argued that he was not required to make his monthly
    mortgage payments because the respondent did not respond to his repeated
    inquiries into why the monthly amount had increased and what the deficit in the
    Tax Account represented.

[9]

While Platana J. agreed that the respondent did not fully and
    adequately reply to the appellants request for information and that there was
    a possible lack of clarity on the respondents website about the function of
    the Tax Account, he found that this was not a defence to the appellants
    default. The mortgage agreement was clear that costs incurred by the respondent
    in enforcing the mortgage would be charged to the appellant. Justice Platana
    also found that there was clear evidence the appellant was aware of the
    $13,278.20 cost award against him and that this had not been paid. Although the
    amount owed by the appellant for the cost award was added to the Tax Account
    rather than immediately collected, it did not follow that the appellant was not
    required to pay this amount to the respondent. Justice Platana found the
    appellant was in default on the mortgage and granted the respondents motion
    for summary judgment on October 14, 2014.

[10]

After
    reasons on the motion were released, but before the issue of costs was determined,
    Platana J. received a fax from the appellant. The fax requested that Platana J.
    stay his decision to allow the appellant time to file a proper appeal and a
    stay motion within the appeal process. In his reasons on costs, Platana J.
    noted that he had received this fax and held that this was not the appropriate
    process for obtaining a stay. He declined to grant the appellants request on
    the ground that ordering a stay prior to any appeal being filed would effectively
    amount to an extension of time to file the appeal. Justice Platana awarded
    costs to the respondent on the summary judgment motion in the amount of $10,500
    plus HST, for fees, and $2,267.90 inclusive for disbursements.

Notice of Appeal to Divisional Court

[11]

The
    appellant filed a notice of appeal, dated November 28, 2014, from the orders of
    Platana J. in the Divisional Court. In his notice of appeal the appellant
    sought the following relief: an order extending time to file the appeal; an
    order that the respondent give explicit reasons for the increase in mortgage
    payments of approximately $100.00 per month; punitive damages in an
    unspecified amount and permission to continue his [mortgage] payments at the
    same amount as they were in November 2011. The appellant also sought [c]onfirmation
    the decisions of Mr. Justice T.A. Platana are automatically stayed.

[12]

The
    notice of appeal again argued that the amount requested by the Respondent has
    not been verified as fact and that the Respondent has not put forth the
    reason why, in December, 2011, the monthly mortgage payments of the Appellant
    were raised by approximately $100.00.

Certificate of Stay

[13]

The
    respondent obtained a writ of possession on March 29, 2015.

[14]

The
    registrar of the Divisional Court (South West Region) appears to have issued a
    certificate of stay of Platana J.s orders pending appeal. The copy filed by
    the appellant is dated April 10, 2015. That same day the appellant received an
    email from the Enforcement Office of the Ministry of the Attorney General
    informing him that the certificate of stay he filed with the Sheriffs Office
    did not comply with rule 63.02(1) of the
Rules of Civil Procedure
and
    therefore was not sufficient to stay enforcement. This email also informed the
    appellant that because a writ of possession is not an order for the payment of
    money, the automatic stay on delivery of a notice of appeal under rule 63.01
    did not apply. The email specifically stated that [a] stay order must be
    obtained.

Order of Gates J.

[15]

The
    appellant brought a motion before the Divisional Court to stay the March 29,
    2015 writ of possession. On April 15, 2015, Gates J. granted the stay on the
    following conditions:

1)

The appellant file a notice of appeal of the order of Platana J., dated
    October 14, 2014, with the Ontario Court of Appeal;

2)

The appellant perfect his appeal in the Court of Appeal immediately;

3)

The appellant pay the cost order granted by Platana J. immediately (in
    the amount of $14,132.90);

4)

The appellant pay the costs of the motion before Gates J. immediately
    (in the amount of $4,234.02).

[16]

Justice
    Gates specified that execution of the writ of possession would only be stayed
    if the appellant fulfilled these obligations by 4:30 p.m. on May 4, 2015.

Motion Before the Court of Appeal

[17]

The
    appellant says he filed a notice of appeal with the Court of Appeal. He brought
    this motion to stay the orders of Platana J., or alternatively, to stay
    execution on the writ of possession. He also sought an extension of time to
    perfect his appeal.

[18]

The
    appellant has not complied with two conditions set out in the order of Gates J.
    Specifically, he has not perfected his appeal to this court or paid the cost
    award ordered by Platana J. (in the amount of $14,132.90). He did not seek
    leave to appeal the order of Gates J.

Applicable Rules of Civil Procedure

[19]

Rule
    63.01 provides that delivery of a notice of appeal from a final order stays,
    until disposition of the appeal, any provision of the order for the payment of
    money.

[20]

Rule
    63.02(1) provides that a final order may be stayed on such terms as are just by
    either an order of the court whose decision is to be appealed or by an order of
    a judge of the court to which a motion for leave to appeal has been made or to
    which an appeal has been taken.

[21]

Rule
    63.02(3) provides that a stay granted under subrule (1) may be set aside or
    varied on such terms as are just by a judge of the court to which an appeal may
    be or has been taken.

[22]

Rule
    63.03(1) provides that where an order is stayed, no steps may be taken for its
    enforcement, except with leave of a judge of the court to which an appeal has
    been taken.

Test for Staying an Order Pending Appeal

[23]

The
    test for staying an order pending an appeal under rule 63.02 of the
Rules
is
    set out by the Supreme Court of Canada in
RJR-Macdonald Inc. v. Canada
    (Attorney General)
, [1994] 1 S.C.R. 311, at p. 334. Under this test the
    appellant must demonstrate:

1)

There is a serious issue to be tried;

2)

He will suffer irreparable harm if the stay is not granted; and

3)

The balance of convenience favours granting the stay.

[24]

In
    analyzing these factors the overarching question is whether the interests of
    justice call for a stay:
Longley v. Canada (Attorney General)
, 2007
    ONCA 149 [In Chambers], at para. 15.

[25]

In
    my view, the appellant has not demonstrated that a stay is appropriate. He has
    not identified any error in the reasoning of the summary judgment motion judge.
    As pointed out by Platana J.:

There are really no facts in dispute. The Defendant has not
    disputed that any of the charges to the Property Tax Account are inaccurate.



None of the evidence in the Defendants affidavits dispute that
    he has not paid the amounts claimed by the Plaintiff. Further, there is clear
    evidence that the Defendant was aware of the various costs awards made against
    him and that these have not been paid.

[26]

The
    appellant has not paid the regular mortgage payments since late in 2011. There
    is no evidence that he took any steps to perfect his appeal filed in the
    Divisional Court. Rule 61.09 provides that where no transcript of evidence is
    required for the appeal, the appeal must be perfected within thirty days after
    filing the notice of appeal. In the absence of any explanation for the failure
    to perfect the appeal by December 28, 2014, I infer that the purpose of filing
    the appeal was to delay enforcement of the judgment. The appellant advises that
    Justice Gates told him that that appeal was in the wrong court, presumably
    because the final order of Platana J. is for an amount that exceeds $50,000.

[27]

Undoubtedly,
    enforcement of the writ of possession will be troublesome for the appellant. However,
    in this case I am not convinced that the balance of convenience or the
    interests of justice call for a stay of enforcement of the judgment for
    possession and the writ of possession.

Extension of time to perfect appeal

[28]

In
    determining whether to grant leave to extend the time to perfect an appeal, it
    is useful to consider the test applicable to extending time to file a notice of
    appeal:
Mauldin v. Cassels Brock & Blackwell LLP
, 2011 ONCA 67 [In
    Chambers], at para. 5;
Monteith v. Monteith
, 2010 ONCA 78 [In
    Chambers], at para. 11. The relevant factors are:

1)

Whether the appellant had an intention to appeal within the relevant
    period;

2)

The length of the delay and the explanation for the delay;

3)

Any prejudice to the respondent;

4)

The merits of the appeal; and

5)

Whether the "justice of the case" requires granting an
    extension.

See
Rizzi v. Marvos
(2007), 85 O.R. (3d) 401
    (C.A. [In Chambers]), at para. 16;
Kefeli v. Centennial College of Applied
    Arts & Technology
(2002), 23 C.P.C. (5th) 35 (Ont. C.A. [In
    Chambers]), at para. 14.

[29]

Justice
    Gates ordered the appellant to perfect his appeal in the Court of Appeal
    immediately. The appellant did not explain why he has not done so. Thirty days
    have not yet elapsed from the date of Gates J.s order, and necessarily from
    the date (unknown to me) of filing of the notice of appeal in this court. If
    the appellant wishes to pursue his appeal he may yet perfect it in accordance
    with the
Rules
. In view of the circumstances outlined above, including
    the apparent absence of merit to the appeal, the delay which has already
    occurred and the absence of any explanation for a failure to perfect, I see no
    need to make any further order extending the time to perfect the appeal. I do
    note that while Gates J. made an order directing the appellant to file a notice
    of appeal in the Court of Appeal well beyond the time limit for doing so set
    out in the
Rules
, rule 3.02(3) provides that an order extending a time
    prescribed by the
Rules
for an appeal to an appellate court may be made
    only by a judge of the appellate court.

[30]

For
    these reasons, the motion by the appellant is dismissed. The parties may make
    brief written submissions regarding the costs of this motion, to be submitted
    no later than May 20, 2015.

G. Pardu J.A.


