



COURT OF APPEAL FOR ONTARIO

CITATION:
    Sub-Prime Mortgage Corporation v. Kaweesa, 2021 ONCA 215

DATE: 20210406

DOCKET:
    M52319 (C69127)

Paciocco
    J.A. (Motion Judge)

BETWEEN

Sub-Prime
    Mortgage Corporation and Elle Mortgage Corporation

Plaintiffs

(Respondents/Moving
    Parties)

and

David Kaweesa
,
Jacqueline Kaweesa
and Jeremy Kaweesa

Defendants

(
Appellants
/
Responding Parties
)

AND BETWEEN

David
    Kaweesa and Jacqueline Kaweesa

Plaintiffs
    by Counterclaim

(Appellants/Responding
    Parties)

and

Sub-Prime
    Mortgage Corporation, Elle Mortgage Corporation

and
    Terry Walman

Defendants
    by Counterclaim

(Respondents/Moving
    Parties)

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

Ranjan Das, for the moving party Terry
    Walman

Matthew Tubie, for the responding
    parties

Heard:
    March 29, 2021 by video conference

ENDORSEMENT

FACTUAL BACKGROUND

[1]

The moving party mortgagee Elle Mortgage
    Corporation (Elle Mortgage) holds a first and fifth mortgage on a residential
    property at 68 Cotswold Crescent in the City of Toronto (the Cotswold
    Property or the Property). The moving party mortgagee Sub-Prime Mortgage Corporation
    (Sub-Prime) holds a second mortgage on the Cotswold Property. I shall refer
    to the moving parties Elle Mortgage and Sub-Prime collectively as the
    Mortgagees.

[2]

Title to the Cotswold Property is held by the responding
    party mortgagor Jacqueline Kaweesa (Jacqueline) and her son Jeremy Kaweesa
    (Jeremy). The mortgages held by the Mortgagees secure debts owed by
    Jacqueline and her husband, the responding party mortgagor David Kaweesa, who both
    currently reside at the Cotswold Property. Jeremy resides elsewhere.

[3]

The Cotswold Property is heavily encumbered,
    including by third and fourth mortgages and a priority lien in favour of the
    City of Toronto for unpaid taxes and water levies. There is also a certificate
    of lien in favour of the Minister of National Revenue against the Property
    dating back to April 2015.

[4]

The responding parties fell into arrears on the
    mortgages held by the Mortgagees. In a separate proceeding, the Mortgagees obtained
    default judgment against Jeremy. The mortgage enforcement action underlying
    this motion was discontinued as against Jeremy but proceeded against the responding
    parties, who issued a counterclaim against the Mortgagees and the moving party
    Terry Walman, the Mortgagees principal. Ranjan Das now represents Mr. Walman.

The Minutes of Settlement

[5]

After several settlement conferences conducted
    by Stinson J., the parties executed minutes of settlement dated November 3,
    2020, which underwent modest modifications in an addendum dated November 20,
    2020 (together, the Minutes of Settlement). I will now summarize the terms of
    the Minutes of Settlement which are germane to the motion before me.

[6]

First, the parties agreed that if the responding
    parties paid $2.1 million made out to Elle Mortgage on or before January 25,
    2021, mortgage discharges would be arranged and the instant action and counterclaim
    against Mr. Walman would be dismissed without costs.

[7]

Second, at para. 13 of the Minutes of Settlement,
    the responding parties agreed that if they did not make the $2.1 million
    payment before January 25, 2021, judgment in favour of the Mortgagees would
    immediately issue, requiring the responding parties to:

1)

pay to the Mortgagees the amount of $2.7 million
    inclusive of prejudgment interest and costs, plus post-judgment interest at a
    rate of 8.5 percent per annum;

2)

dismiss their counterclaim; and

3)

give possession of the Property over to the
    Mortgagees, who would have leave to issue a writ of possession.

[8]

Third, pursuant to para. 5, Mr. Das agreed to execute
    a letter set out in a schedule to the Minutes of Settlement and undertook to answer
    any potential queries from potential lenders by confirming the contents of the
    letter.

[9]

Fourth, pursuant to para. 19 (reproduced below at
    para. 24), the parties permitted Stinson J. to remain seized of the action for
    any purpose in connection with implementing these Minutes of Settlement.

Non-compliance with the Minutes of Settlement

[10]

The responding parties did not pay $2.1 million
    to the Mortgagees by the January 25, 2021 deadline. The Mortgagees brought a
    motion for judgment in accordance with the Minutes of Settlement. Having been
    unable to secure financing, the responding parties resisted the motion and requested
    an extension of the payment deadline. They argued the Minutes of Settlement had
    been frustrated by the ongoing COVID-19 pandemic and additional lockdown
    measures. The financing commitment letter the responding parties relied upon
    to support their extension request was unsigned and contained conditions that
    the responding parties clearly could not satisfy.

[11]

In reasons on the motion for judgment dated
    January 29, 2021, Stinson J. denied the extension. He ruled that, since he was
    enforcing the Minutes of Settlement, it was not open to the court to re-write
    the agreement by changing the deadline and that, in any event, the responding
    parties knew the Property was heavily encumbered and took a knowing risk that
    they may not be able to secure requisite financing in time to meet the
    deadline. According to Stinson J., all parties had been aware of the COVID-19-related
    restrictions when they executed the Minutes of Settlement and those restrictions
    were not of a nature that would preclude [the responding parties] from
    refinancing.

[12]

Stinson J. further ruled that the Minutes of
    Settlement were not frustrated because the pandemic (1) had not altered the
    obligations the responding parties had assumed, and (2) did not constitute a
    supervening event, as the pandemic was ongoing with no prospect of early
    resolution when the Minutes of Settlement were executed.

[13]

Stinson J. therefore granted judgment in favour
    of the moving parties on the terms provided for in the Minutes of Settlement;
    namely, a money judgment against the responding parties for $2.7 million, the
    termination of the counterclaim, and a writ of possession against the Property
    (the Judgment).

The Temporary Stay

[14]

However, Stinson J. added a term to the Judgment,
    at para. 5, temporarily staying enforcement of the writ of possession: enforcement
    of the writ of possession is stayed for 90 days after the termination of the
    State of Emergency in Ontario. I shall refer to this term as the Temporary
    Stay.

The Stay Condition

[15]

Stinson J. imposed two conditions on the Temporary
    Stay. Only one of those conditions, at para. 5(i) of the Judgment, is material
    to the motions before me. It stated that the Temporary Stay was conditional on
    the [responding parties] complying with the following term:

The [responding parties] shall pay to the City
    of Toronto in reduction of realty tax arrears $3,000.00, monthly on the 15
th
day of each month starting February 15, 2021.

I shall refer to this term as the Stay
    Condition.

[16]

The responding parties are in breach of the Stay
    Condition; they have not made the $3,000 monthly realty tax payments to date.
    Their counsel on this motion, who did not represent them before Stinson J., now
    argues that the responding parties are not required to comply with the Stay
    Condition because they claim to have an agreement with the City of Toronto relieving
    them from the obligation to make tax payments until this action is settled.

RELIEF SOUGHT BY THE MOVING PARTIES

[17]

The responding parties have appealed the
    Judgment to this court. In the meantime, the moving parties ask me to grant the
    following relief:

1)

An order that the responding parties post security for the moving
    parties costs of the appeal;

2)

An order lifting or revoking the Temporary Stay
    of the writ of possession contained in the Judgment;

3)

An order that the responding parties post
    further security of $11,037 for the costs awarded in the Judgment; and

4)

An order expediting the hearing of this appeal.

ANALYSIS

(1)     Security for Costs

[18]

To order a party to post security for costs, I
    must be persuaded that the preconditions provided for in the relevant rule are
    met and that it is in the interests of justice to exercise my discretion to
    make such an order:
Heidari v. Naghshbandi
, 2020 ONCA 757, 153 O.R.
    (3d) 756, at para. 6. The moving parties seek an order for security for costs
    under rr. 61.06(1)(a) and (c). I need only to consider r. 61.06(1)(a).

[19]

I cannot make an order pursuant to r. 61.06(1)(a)
    unless: (i) there is good reason to believe that the appeal is frivolous and
    vexatious, and (ii) the responding parties have insufficient assets in Ontario
    to pay the costs of their appeal.

(a)

There is good reason to believe the grounds of
    appeal are frivolous

[20]

With respect to the first precondition, I am
    satisfied there is good reason to believe that the grounds advanced by the
    responding parties in their appeal are frivolous, in that there is good
    reason to believe that those grounds are devoid of merit, with little prospect
    of success:
Heidari
, at para. 10.

The grounds of appeal regarding Mr. Das

[21]

The first two grounds of appeal are challenges
    to the conduct of Mr. Das which the responding parties say were raised before
    Stinson J. in the proceedings below. Namely, the responding parties allege that
    Mr. Das impeded the responding parties efforts to obtain financing by refusing
    or failing to answer potential queries from potential lenders confirming the
    contents of the executed letter, contrary to his obligations under para. 5 of
    the Minutes of Settlement (reproduced above at para. 8).

[22]

In my view, there is good reason to believe that
    these two grounds of appeal are devoid of merit and have little prospect of
    success on appeal. This is because there is good reason to believe the issues underlying
    these grounds of appeal were not raised before Stinson J. The moving parties
    point to four considerations which I find support my conclusion:

1)

Jacquelines first affidavit was executed on January 25, 2021 and
    filed before Stinson J. It says nothing about Mr. Das compliance with the
    Minutes of Settlement. Jacquelines second affidavit, which includes exhibited
    documents the responding parties claim to be relevant to Mr. Das compliance,
    was executed on March 23, 2021, long after Stinson J.s Judgment was rendered.

2)

Mr. Walmans affidavit, dated March 17, 2021,
    asserts that no evidence was presented and no argument made before Stinson J.
    relating to Mr. Das. Mr. Walman also attests: I attended the virtual
    hearing and I saw and heard [prior counsel for the responding parties]
    expressly state that her clients were not making allegations regarding Mr.
    Das. This assertion is uncontradicted on the evidence before me.

3)

Mr. Das appeared on this matter before Stinson
    J. Had his conduct been a material issue in the case, as alleged by the
    responding parties, he would have been in a position of conflict. It is
    unlikely that he would have been permitted to continue as counsel.

4)

In his thorough decision, Stinson J. makes no
    mention of what the responding parties now claim was a central issue before him.
    In my view, it is highly probable that Stinson J. would have addressed this
    issue if it had been raised before him.

The ground of appeal related to Stinson J.s
    role in the proceedings

[23]

One of the remaining two grounds of appeal is
    that Stinson J. erred in presiding over the motion for judgment after having
    presided at the settlement conferences. The responding parties contend that
    Stinson J. erred by treating the matter before him as a consent judgment, when
    in fact it was contested.

[24]

There is good reason to believe that this ground
    of appeal is also devoid of merit. Rule 50.10(1) permits pre-trial conference
    judges to preside at the trial of an action with the written consent of the
    parties. Paragraph 19 of the Minutes of Settlement provide as follows:

The parties agree that the Honourable Justice
    D. Stinson will, subject to His Honours discretion, remain seized of this
    action and [the action against Jeremy] for any purpose in connection with
    implementing these Minutes of Settlement including, if necessary, scheduling
    and dealing with next steps if Jeremy Kaweesa does not sign these Minutes of
    Settlement and the signing of Judgment on January 26, 2021.

[25]

This provision appears to constitute clear
    written consent by the parties to Stinson J. presiding over the motion for judgment.
    I am therefore satisfied that there are good grounds to believe that this
    ground of appeal is frivolous.

The ground of appeal regarding frustration of
    the Minutes of Settlement

[26]

The final ground of appeal is that Stinson J.
    erred in failing to find that the Minutes of Settlement were frustrated.
    Stinson J. held that the doctrine of frustration did not apply because: (1) the
    pandemic was not a supervening event, but was contemplated by the parties at
    the time of the settlement; and (2) the pandemic and the ensuing lockdown did
    not render the contract substantially different from the one which the parties
    had executed. Stinson J. also held that the pandemic had not precluded the
    responding parties from obtaining financing. Any one of these considerations
    condemns the frustration argument, indicating that this ground of appeal has
    little prospect of success. There are therefore grounds to believe this ground
    of appeal is also frivolous.

[27]

Accordingly, without declaring that the grounds
    of appeal are frivolous, I am satisfied that there are grounds to believe that all
    of them are frivolous because I find they are devoid of merit, offering little
    prospect of success.

(b)

There is good reason to believe the appeal is
    vexatious

[28]

Turning to the second component of the first
    precondition to r. 61.06(1)(a), I am also satisfied there is good reason to
    believe that the appeal is vexatious. An appeal is vexatious when it is
    taken to annoy or embarrass the respondent or conducted in a vexatious
    manner:
Heidari
, at para. 10.

[29]

The moving parties have identified good reasons to
    believe that the appeal is being conducted in a vexatious manner. The
    responding parties have provided nothing to support their claim that
    allegations about Mr. Das non-compliance with the Minutes of Settlement were
    raised before Stinson J. These allegations jeopardized Mr. Das ability to
    continue representing his client and impugn his good faith. The responding
    parties have also impugned the integrity and professionalism of Mr. Walman,
    which does nothing to advance their appeal on the merits. Like those against
    Mr. Das, the responding parties allegations against Mr. Walman are based on
    material that does not appear to have been before Stinson J.

[30]

On these bases, I find good reason to believe
    that the appeal is vexatious.

(c)

There is good reason to believe there are
    insufficient funds to pay the costs of the appeal

[31]

I am also satisfied there is good reason to
    believe the second precondition of r. 61.06(1)(a) is met; namely, that the
    responding parties have insufficient assets in Ontario to pay the costs of
    their appeal.

[32]

This issue was in controversy before me. The
    responding parties contend that the Cotswold Property is worth $3.5 million in
    the current market, based on a November 2020 appraisal. The moving parties
    contest this, relying on a drive-by appraisal of their own, from March 2021,
    which values the Property at between $2.7 and $2.8 million.

[33]

The Cotswold Property appears to be the sole
    asset claimed by the responding parties. Even if one accepts their valuation of
    $3.5 million, the moving parties argue that there is insufficient equity in the
    Property to cover the proven encumbrances plus the costs of the appeal.

[34]

I have reviewed the documentary evidence and I
    am persuaded that there is good reason to accept the moving parties position
    regarding the encumbrances on the Property. The responding parties have not
    been making payments on those encumbrances, in some cases for years. The
    accumulated interest, which only continues to mount, is staggering.

(d)

Conclusion on security for costs

[35]

The preconditions to making an order for
    security for costs pursuant to r. 61.06(1)(a) are therefore met and I
    exercise my discretion to order security for costs. Doing so is necessary to
    provide the moving parties, the respondents in the appeal, with a measure of
    protection for the costs of that appeal. I base the justness of this decision
    on the facial weakness of the appeal, the promptness with which the motion for
    security for costs was brought, and the serious risk that, without such an
    order, the moving parties will be unable to collect a costs award in the likely
    event that the appeal is unsuccessful.

[36]

The submissions made by the moving parties on
    the estimated costs of the appeal are reasonable. I order the responding
    parties to post $30,000 as security for costs in favour of the Mortgagees.

[37]

In addition, I order the responding parties to
    post $7,500 as security for costs in favour of Mr. Walman.

(2)    Lifting or Revoking the temporary STAY

[38]

I do not accept the responding parties position
    that they are not in breach of the Stay Condition. The responding parties have
    not proven the agreement with the City of Toronto that they say suspends
    their obligation to make the required tax payments. More importantly, even if such
    an agreement exists, it would not alter the condition that the Temporary Stay
    is premised upon; namely, that the responding parties pay $3,000 monthly to the
    City of Toronto. The Stay Condition is not contingent on the City of Toronto
    demanding payment; the payments are to be made in reduction of the realty tax
    arrears. The responding parties breached the Stay Condition in February 2021
    and again in March.

(a)

A conditional writ of possession is not automatically stayed on
    appeal

[39]

Nor do I accept the responding parties position
    that a term providing for a writ of possession is automatically stayed pursuant
    to r. 63.01(1). Rule 63.01(1) provides as follows:

The delivery of a notice of appeal from an
    interlocutory or final order stays, until the disposition of the appeal, any
    provision of the order for the payment of money, except a provision that awards
    support or enforces a support order.

[40]

The provision of the Judgment at issue provides
    conditionally for a writ of possession. It is not an order for the payment of
    money. In my view, the nature of an order for a writ of possession does not
    change because it is conditional on the payment of money to a third party. It
    is evident that r. 63.01(1) is intended to automatically stay monetary remedies
    secured by the respondent to an appeal, pending that appeal. Manifestly, r. 63.01(1)
    is not intended to stay
in rem
remedies, and the order requiring the
    responding parties to pay their realty taxes is not a monetary remedy in favour
    of the moving parties. Rather, it is a modest condition attaching to an
    indulgence granted by Stinson J. to the responding parties on this motion, no
    doubt intended to ameliorate the hardship of the
in rem
order for a
    writ of possession. If interpreted as suggested by the responding parties, the
    purpose of r. 63.01(1) would be exceeded and frustrated.

[41]

Accordingly, the conditional order for a writ of
    possession in the Judgment is not automatically stayed pending the responding
    parties appeal.

[42]

However, that does not end the matter. The Temporary
    Stay is tied to an
in rem
remedy and therefore remains in place
    pending appeal unless and until it is set aside, as the moving parties ask me
    to do.

(b)

The Temporary Stay should be lifted

[43]

The moving parties submit that, given the responding
    parties breach of the Stay Condition, the Temporary Stay should be lifted and
    a writ of possession should issue. They argue that since this matter is now
    before this court, Stinson J. is
functus
and lacks the jurisdiction to
    make such an order. Therefore, they submit that I have authority to grant the order
    sought as a single judge of the Court of Appeal, either by necessity or
    pursuant to s. 134(2) of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43 (
CJA
), which provides as follows:

On motion, a court to which a motion for leave
    to appeal is made or to which an appeal is taken may make any interim order
    that is considered just to prevent prejudice to a party pending the appeal.

[44]

I agree with the moving parties that
CJA
s.
    134(2) authorizes an appellate court to remove a stay as an interim order
    pending an appeal: Paul M. Perell and John W. Morden,
The Law of Civil Procedure
    in Ontario
, 4th ed. (Toronto: LexisNexis Canada, 2020), at ¶12.160. As
    acknowledged by Laskin J.A. (in Chambers), the jurisdiction conferred by s.
    134(2) may be exercised by a single judge of this court pursuant to s. 7(2) of
    the
CJA
:
Hakim Optical Laboratory Ltd. v. 1570710
    Ontario Ltd.
, 2010 ONCA 627, [2010] O.J. No. 4102, at para. 5.

[45]

The jurisdiction under
CJA
s. 134(2) is
    broad, but it is not unlimited. The focus of any remedy provided under s.
    134(2) must be on preventing prejudice in the context of the appeal and the
    interests of justice:
Waxman v. Waxman
(2003), 168 O.A.C. 217, at
    para. 21 (C.A.).

[46]

The test for granting relief under s. 134(2) is
    the same as that for granting a stay pending appeal pursuant to r. 63.02(1):
Abuzour
    v. Heydary
, 2015 ONCA 249, 126 O.R. (3d) 101, at para. 24. It is based on
    the test for an interlocutory injunction 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. Namely, it must be established that it is in the interests of
    justice to exercise the judges discretion to lift or remove the stay, given
    the relative strengths and weaknesses of the following criteria:

1)

there is a serious question to be adjudicated on appeal;

2)

the moving party would suffer irreparable harm
    if the relief were refused; and

3)

the balance of convenience favours the moving
    party (i.e., the moving party would suffer greater harm if the relief were not
    granted than would the responding party if the relief were granted).

There is a serious question to be determined
    on appeal

[47]

Obviously, the relevant concern under the first
RJR-MacDonald
criterion is whether the moving party has identified a serious question to
    be adjudicated on appeal that supports the relief sought. Here, the moving
    parties contend that the trial judges discretionary Temporary Stay should be
    set aside, in part, because the grounds of appeal that are to be adjudicated are
    weak and unlikely to succeed. I have already found that there is good reason to
    believe that the grounds of appeal are frivolous. The position of the Mortgagees
    that will be adjudicated on the appeal  that the appeal should be rejected  is
    therefore a serious one, thereby satisfying the first
RJR-MacDonald
consideration.
    Indeed, the weakness of the appeal pushes strongly in favour of the relief
    sought.

The moving parties will suffer irreparable
    harm if the Stay is not lifted

[48]

I am also satisfied that unless the Temporary
    Stay is set aside, the moving parties will suffer irreparable harm, thereby supplying
    the prejudice required for relief under s. 134(2). Given the weakness of the
    grounds of appeal, there is every reason to believe that this appeal is being
    used as a litigation tactic to delay enforcement of the Minutes of Settlement. The
    responding parties have a strong incentive to employ such a tactic. They remain
    in the residence pending appeal and are not making payments on any of the
    mortgages against the Property, nor have they been paying the property taxes
    and water charges they are incurring.

[49]

As these expenses accumulate, the equity in the
    Cotswold Property is reduced, as is the strength of the Mortgagees security
    for the responding parties debt to them and to the City of Toronto, which the Mortgagees
    will have to discharge before recovering the funds they are owed. Meanwhile, as
    the unpaid interest on the mortgages accumulates, the Mortgagees investment in
    the Property is increasing, further reducing the prospect that full collection
    will ever be achieved. Moreover, if the Temporary Stay is not lifted and the
status
    quo
is maintained, the Mortgagees will be unable to access the capital they
    have tied up in the Property until the appeal is finalized.

[50]

These harms will be irreparable if the heavily encumbered
    Property proves insufficient as security for the Mortgagees investment, because
    it is evident that personal judgments against the responding parties will
    almost certainly go unpaid. The responding parties have an established history
    of not paying their debts.

The balance of convenience favours the moving
    parties

[51]

I am equally persuaded that the balance of
    convenience favours the moving parties. As I have already described, if the
    Temporary Stay is not lifted, the moving parties will suffer irreparable harm.

[52]

On the other hand, I appreciate that if
    possession is given over to the Mortgagees, the responding parties will be
    displaced from their residence and much of the benefit of their appeal would be
    lost. However, three things must be emphasized.

[53]

First, the responding parties agreed to pay the
    mortgage debts secured against the residence they now inhabit. Displacement in
    the event of non-payment was a consequence they accepted. There was no
    suggestion made before me that the money in question is not owed to the
    Mortgagees.

[54]

Second, as I have said, the responding parties are
    living in the residence without paying the expenses associated with doing so. In
    the circumstances, their moral and legal claim to entitlement to remain in the Property
    is diminished.

[55]

Third, the outcome of lifting the Temporary Stay
    is simply that the responding parties may lose possession of the Property before
    the expiry of the State of Emergency in Ontario, as provided for in the
    Judgment. In other words, lifting the Temporary Stay now does not remove a
    benefit the responding parties were guaranteed to enjoy until the end of their
    appeal.

[56]

In the circumstances, the responding parties
    argument that the balance of convenience lies with them is unpersuasive. I am
    satisfied that the balance of convenience favours the moving parties.

The interests of justice favour lifting the Temporary
    Stay

[57]

Finally, since the order I am being asked to
    make is discretionary, I will consider the relative equities at play.

[58]

First, the responding parties have shown an
    unwillingness to pay their debts, including to the Mortgagees, yet no
    explanation for this conduct has been offered.

[59]

Second, the responding parties freely entered into
    Minutes of Settlement with the benefit of legal representation, but then sought
    to disavow their agreement. Notwithstanding their attempt to do so, Stinson J.
    generously granted them an indulgence to ameliorate the hardship that the writ
    of possession would cause, subject to the very modest precondition that they
    begin repaying money they owe to the City of Toronto. They breached that
    precondition, and then claimed before me that an unproven deal with the City
    relieved them from having to do so.

[60]

Third, it appears that the responding parties
    have burdened the Mortgagees by complicating the underlying appeal with inappropriate
    and legally gratuitous allegations against two lawyers, Mr. Das and the moving
    party Mr. Walman.

[61]

In my view, the equities in this case militate
    in favour of granting the discretionary relief sought by the moving parties.

[62]

Based on the foregoing, I am satisfied that
    it is in the interests of justice to lift the Temporary Stay pursuant to s.
    134(2) of the
CJA
.

(3)    The Costs of the proceedings below

[63]

I am not prepared to order payment of the costs
    below. In the unlikely event that the appeal is successful, that costs order is
    apt to be set aside. Although I am empowered to do so, I would not exercise my
    discretion to order payment of a costs order that remains a live issue before
    this court.

(4)     Expediting the Appeal

[64]

In my view, given the orders I am making for
    security for costs and to lift the Temporary Stay, there is no need to expedite
    the appeal.

DISPOSITION

[65]

For the reasons set out above, I order the
    following:

1)

The motions for security for costs are granted. The responding
    parties shall post the following amounts within 10 business days of the release
    of this decision:

a.

$30,000 to secure the costs of the appeal to the
    moving party Mortgagees; and

b.

$7,500 to secure the costs of the appeal to the moving
    party Mr. Walman.

2)

The motion for an order lifting the Temporary
    Stay of enforcement of the writ of possession is granted. Paragraph 5 of
    Stinson J.s Judgment dated January 29, 2021 is hereby set aside.

3)

The motion for payment of the costs in the proceedings
    before Stinson J. is dismissed.

4)

The motion expediting the appeal is dismissed.

[66]

Costs in this motion are payable to the moving
    party Mortgagees in the combined amount of $2,500, inclusive of disbursements
    and HST. Costs on this motion are also payable to the moving party Mr. Walman in
    the amount of $1,000, inclusive of disbursements and HST.

David
    M. Paciocco J.A.


