



COURT OF APPEAL FOR ONTARIO

CITATION: National Bank of Canada v.
    Guibord, 2021 ONCA 864

DATE: 20211201

DOCKET: M52984 (C70058)

Nordheimer J.A. (Motions Judge)

BETWEEN

National Bank of Canada

Plaintiff
(Respondent/Responding Party)

and

Marcel Guibord

Defendant
(Appellant/Moving Party)

Marcel Guibord, acting in person

Grand Chief Wabiska Mukwa, acting in
    person

Michael S. Myers, for the responding party

Heard: November 30, 2021 by video conference

ENDORSEMENT

[1]

Mr. Guibord brings this motion, on an urgent
    basis, for an order staying the writ of possession obtained by the respondent
    pursuant to an order of Mew J. dated October 5, 2021. The writ of possession
    was part of the relief that arose from the summary judgment granted by the
    motion judge.
[1]

[2]

At the outset of the hearing, the appellant
    asked that I allow Grand Chief Mukwa to speak on his behalf. While I would not
    normally permit that to happen, given the provisions of r. 15.01(3) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, counsel for the respondent consented
    to having Grand Chief Mukwa speak so I permitted it. In the end result, I had
    the bulk of the appellants submissions from Grand Chief Mukwa, supplemented by
    submissions from the appellant.

[3]

The test on a stay motion is well-known. It is
    set out in
RJR-MacDonald Inc. v. Canada (Attorney General)
,

[1994]
    1 S.C.R. 311. The test requires the court to consider three factors: (i) whether
    there is a serious issue to be tried; (ii) whether the moving party will suffer
    irreparable harm; and (iii) an assessment of the balance of convenience between
    the parties.

[4]

In my view, the appellant fails on all three of
    these factors. First, I see little merit to the appellants grounds of appeal. While
    I do not question the importance of some of the issues that the appellant
    raises that surround the question of land claims by Indigenous peoples, those
    issues, as the appellant attempts to invoke them in his appeal and on this
    motion, do not relate to any of the issues raised by the motion for summary
    judgment. That motion dealt with a straightforward commercial arrangement
    between the parties on which there had been default by the appellant. That
    default entitled the respondent to exercise its rights under the security which
    it held, namely a mortgage. The respondent sought, and obtained, summary
    judgment arising from the default, which included obtaining a writ of
    possession. The various principles and proclamations to which the appellant
    refers, including the United Nations Declaration of the Rights of Indigenous
    Peoples, simply have no proper application to the issues raised on the summary
    judgment motion.

[5]

Second, the appellant will not suffer
    irreparable harm if the writ of possession is enforced. If the appellant
    suffers any losses arising from that enforcement, those losses are entirely
    compensable by way of damages. I would note in passing, on this point, that the
    appellants argument that the property in question is worth many times what is
    owed on the mortgage, begs the question why, if that is the case, the appellant
    has not simply refinanced the property and paid the mortgage out. On the other
    side of this factor is the fact that the respondents mortgage is a second
    mortgage. The first mortgage is a reverse mortgage for which no interest payments
    are required. Rather, the interest accrues and increases the amount due under
    the first mortgage. Consequently, delay operates to reduce the appellants equity
    in the property and thus prejudices the position of the respondent.

[6]

Third, the balance of convenience does not
    favour the appellant. The summary judgment is presumptively valid. The writ of
    possession is not automatically stayed by virtue of r. 63.01(1) of the
Rules
    of Civil Procedure
. The enforcement of security validly given by a party,
    who is in default, should not be interfered with absent compelling reasons.
    Otherwise, the essential functioning of these type of commercial arrangements would
    be undermined. I note that the appellants default dates back to January 2019,
    so he has had time to adjust to the reality that this day would arrive.

[7]

Other considerations also bear on this factor. One
    is that the appellant has not given a satisfactory explanation for why he waited
    until just days before the writ of possession was to be enforced to bring this
    motion, when the writ of possession arises from a decision of the motion judge
    that was given almost two months ago. Another is the salient fact that the appellant
    gave this mortgage to the respondent some four years ago for the express
    purpose of avoiding the respondent exercising its rights under a writ of seizure
    and sale that it held. The mortgage was given to obtain the forbearance of the
    respondent, in order to avoid the eviction of the appellant from the property
    at that time. Yet another is the fact that the appellant has a number of
    outstanding costs awards against him, including from this court. A party cannot,
    on the one hand, seek relief from a court yet, on the other hand, not obey orders
    made by the court.

[8]

For all of these reasons, the motion for a stay
    is dismissed. The respondent is entitled to its costs of the motion, which I
    fix in the amount of $7,000 inclusive of disbursements and HST, recognizing
    that the mortgage entitles the respondent to recover its full indemnity costs.

I.V.B.
    Nordheimer J.A.





[1]

National Bank of Canada v.
    Guibord
, 2021 ONSC 6549.


