



COURT OF APPEAL FOR ONTARIO

CITATION:
Sheth v. Randhawa, 2022 ONCA 89

DATE: 20220128

DOCKET: M53070 (C69649)

Simmons
    J.A. (Motions Judge)

BETWEEN

Lovera
    Sheth

Plaintiff (Appellant/Moving Party)

and

Karanpaul
    Randhawa, TSD Law Professional Corporation, Anoop Singh Dhillon, Bindaas
    Capital, Ash Karia, Sujoy Pal, Dr. Mangesh Inamdar Medicine Professional
    Corporation, 11035738 Canada Inc., Shan Mangal and Gurpal Singh

Defendants (Respondents/Responding Parties)

Doug LaFramboise, for the moving party

Demetrios Yiokaris, for the responding
    parties Anoop Singh Dhillon and TSD Law Professional Corporation

Aaron Hershtal, for the responding
    party Karanpaul Randhawa

Paul Robson, for the responding parties
    11035738 Canada Inc., Shan Mangal and Gurpal Singh

Matthew Harris, for the responding parties
    Ash Karia, Bindaas Capital, Sujoy Pal and Dr. Mangesh Inamdar Medicine Professional
    Corporation

Heard: January 20, 2022 by video conference

ENDORSEMENT

Introduction

[1]

The moving party/appellant, Lovera Sheth,
    requests an order: i) setting aside the Registrar's order dismissing her appeal
    for delay, and ii) granting her seven days from the date of the order on this
    motion to perfect her appeal.
[1]


[2]

The order under appeal was made on a motion the
    appellant brought in her underlying action to set aside a transfer of property
    and/or for damages. The motion judge treated the appellants motion as a motion
    for partial summary judgment. She dismissed the appellants motion and granted
    reverse summary judgment in favour of the responding parties dismissing the
    appellants action.

[3]

For the reasons that follow, I grant the
    appellant's request subject to conditions as set out below.

Background

[4]

On March 9, 2020, Bindaas Capital (Bindaas or
    the chargee) and Brinder Nagra
[2]
transferred
    the subject property to 11035738 Canada Inc. (1103 or the purchaser)
    pursuant to a power of sale contained in the first charge against the property.

[5]

The property transferred was the appellant's
    residence. It is undisputed that she remains in the home to date. She acquired
    the property in 2017 and granted or assumed first and second charges to Bindaas
    and others,
[3]
and
    Bindaas, for $610,000 and $160,000, respectively, at that time. There was also
    a third charge registered at the time in favour of Park Lane Plumbing Limited
    (Park Lane), apparently for $90,000. A fourth charge, apparently for $45,000,
    was later registered against the property in August 2019 in favour of Doris
    Joseph.

[6]

The appellant asserts that she did not learn of
    the March 9, 2020 transfer until May 2020. Soon after learning of the transfer,
    she commenced the underlying action and brought a motion, originally returnable
    on May 21, 2020, to set aside the transfer.

[7]

In her action, among other things, the appellant
    sought a declaration that the March 9, 2020 transfer was fraudulent, an order
    reversing the transfer and re‑registering the property in her name, and
    damages for loss of equity. In her motion, at least as originally framed, the
    appellant asked, among other things, that the March 9, 2020 transfer be deemed
    a nullity and that the property be re‑registered in her name.

[8]

Following cross-examinations, the appellants motion
    in some form
[4]
was
    heard on June 9, 2021. On the hearing date, the appellant sought an adjournment
    to conduct a further examination of Ash Karia, the principal of Bindaas. The responding
    parties opposed the request. The motion judge denied the adjournment for reasons
    provided orally.

[9]

The motion judge released her endorsement
    concerning the merits of the motion on June 14, 2021. According to the June 14,
    2021 endorsement, the appellant argued that the responding parties (primarily,
    the chargee and the chargees solicitors (Mr. Randhawa) and the purchaser and
    the purchasers solicitors (TSD Law Professional Corporation and Mr. Dhillon))
    engaged in a conspiracy to defraud her and take her property from her; and further,
    that the notice of sale issued by Bindaas was invalid and that the transfer was
    therefore a nullity.

[10]

In her June 14, 2021 endorsement, the motion
    judge dismissed the appellant's motion and granted reverse summary judgment to
    the responding parties dismissing the appellant's action subject to the appellants
    right to proceed with an accounting against Bindaas and its principal, Mr.
    Karia and subject also to the right of the purchaser to apply for payment out
    of $40,000 the appellant paid into court pursuant to an order made by Andre J.

[11]

The appellant filed her notice of appeal dated
    July 13, 2021 on July 14, 2021. Under rule 61.09(1)(a), the appeal should have
    been perfected on or before August 13, 2021.

[12]

On August 16, 2021, the Registrar of this court sent
    a notice to the appellant advising her appeal would be dismissed unless
    perfected by September 7, 2021. The Registrar subsequently dismissed the
    appellant's appeal on November 5, 2021. Appellants counsel apparently received
    notice of the dismissal on November 9, 2021.

[13]

The appellants set aside/extension motion is
    dated November 24, 2021. Appellants counsel sought to make it returnable on
    December 6, 2021. However, due to the unavailability of the purchasers lawyer
    for any dates in December the motion was brought returnable on January 20, 2022.

Chronology of the Chargees Enforcement Proceedings
    and the Appellants Action

[14]

The following chronology
[5]
of the chargees enforcement proceedings and of the appellants
    action is relevant to the issues on this motion:

·

July 2018, the appellant defaulted under the
    first and second charges to Bindaas and others, and Bindaas;

·

July 30, 2018, Bindaas issued a notice of sale
    under charge with respect to the second charge requiring payment by September
    5, 2018;

·

July 30, 2018, Bindaas commenced an action to
    enforce the second charge;

·

February 15, 2019, Bindaas and others issued a
    notice of sale under charge with respect to the first charge requiring payment
    by April 5, 2019;

·

March 8, 2019, Bindaas and others commenced an
    action to enforce the first charge;
[6]

·

December 4, 2019, the appellant and the first
    and second chargees (Bindaas and others, and Bindaas) entered into Minutes of
    Settlement requiring the appellant to pay $893,000 within seven days in full
    and final settlement of the actions to enforce the first and second charges. In
    default of payment, the chargees were entitled to sign judgment for $927,465.33
    representing the full amount due under the first and second charges;

·

January 2020, the appellant listed the property
    for sale;

·

January 29, 2020, the appellant entered into an
    agreement to sell the property to Bobby Abraham for $1,000,000 with a closing
    date of February 28, 2020;

·

February 13, 2020, following default in payment
    under the Minutes of Settlement, the first and second chargees obtained
    judgment
[7]
for
    $927,465.33 plus $3,127.74 for costs;

·

February 26, 2020, the chargees lawyer (Mr.
    Randhawa) received a message from the appellants lawyers office that the
    property had been sold for $1,000,000 but did not receive a copy of the
    agreement of purchase and sale;

·

unknown date, the appellant requested a
    discharge statement for the charges;
[8]

·

February 27, 2020, 1103 offered to purchase the
    property as is for $970,000. The offer was accepted with a closing date of
    March 4, 2020. (The agreement is not in the record on this motion. Para. 23 of
    the motion judges reasons does not refer to Brinder Nagra as being a party to
    this offer);

·

February 28, 2020, Bindaas real estate
    solicitor (Mr. Devesh Gupta) sent the appellants real estate solicitor (Mr.
    Manish Kapoor) a discharge statement for the charges for $980,272. Upon being
    advised this amount was disputed, Mr. Randhawa advised he was no longer
    retained on the matter;

·

February 29, 2020, in response to inquiries
    about the discharge statement, both Mr. Randhawa and Mr. Gupta advised they
    were not retained by Bindaas for purposes of the discharge of the charges;

·

March 4, 5, and 6, 2020  1103s purchase is
    postponed each day, finally, on March 6, 2020 to March 9, 2020;

·

March 6, 2020, on motion by the appellant, Harris
    J. fixed the amount required to discharge the first and second charges at
    $932,211.73 less $5,000 on account of costs;

·

March 9, 2020, 1103s purchase closed and the
    transfer, under the power of sale contained in the first charge, from Bindaas
    and Nagra to 1103 was registered;

·

March 9, 2020, 1103 registered a charge against
    the property in favour of Gurpal Singh for $880,000;

·

March 16, 2020, on motion by the appellant, Bloom
    J. fixed the amount required to discharge the first and second charges at
    $929,498.01 less $3,500 on account of costs and ordered that on payment into
    court the charges would be discharged;

·

May 7, 2020, Bobby Abraham paid $920,988 into
    court (of which $800,000 was borrowed from the National Bank) and also paid
    $51,000 to discharge the third charge in favour of Park Lane  commencing May
    1, 2020, the appellant began paying Bobby Abraham $3,131 per month on account
    of the National Bank loan;

·

unknown date, Mr. Mangal visited the property
    and discovered that the appellant was still occupying it: para. 38 of the
    motion judges reasons;

·

May 12, 2020, Anthony Forgione of Apex Property
    Management delivered a Notice of Trespass to the occupants of the property on
    behalf of 1103 requiring them to vacate on or before May 17, 2020. The Notice
    stated it was further to previous notice provided to you to vacate the premise.;

·

May 13, 2020, the appellant issued her statement
    of claim;

·

May 19, 2020, 1103 registered a second charge
    against the property in favour of Kuldip Singh Dhillon for $262,500;

·

July 22, 2020, the date of Mr. Randhawas
    Statement of Defence and Crossclaim;

·

July 28, 2020, the date of Mr. Dhillon and his
    law firms Statement of Defence and Crossclaim;

·

July 30, 2020, the date of the Statement of
    Defence and Counterclaim and Crossclaim of Bindaas and other chargees and Mr.
    Karia;

·

November 20, 2020, the purchaser replaced its
    previous financing with new first and second charges in the principal amounts
    of $900,000 and $100,000 respectively (I am unclear whether this information
    was before the motion judge as the details of these charges are set out in a
    supplementary motion record dated January 13, 2022 filed on this motion by the
    purchaser and its principal (Mr. Mangal));

·

November 24, 2020, the purchaser and its
    principal (Mr. Mangal) moved for an order requiring the appellant to pay into
    court all expenses and costs associated with her continuing occupation of the
    property, or, in the alternative, for a writ of possession;
[9]
the appellant brought a cross-motion seeking a declaration that the
    March 9, 2020 purported purchase was fraudulent; Andre J. ordered that the
    cross-motion
[10]
be
    heard on June 9, 2021 and that the appellant pay into court $40,000 to be held
    in trust pending the outcome of the cross-motion;

·

February 2, 2021, the date of the Statement of
    Defence and Counterclaim and Crossclaim of 1103, its principal and Mr. Singh,
    the original first chargee following the sale to 1103;

·

March 16, 2021, the National Bank obtained a
    consent order for payment out of the monies paid into court by Bobby Abraham;

·

June 9, 2021, the appellants motion was heard;

·

June 14, 2021, the motion judge issued her
    endorsement;

·

July 14, 2021, the appellant filed her notice of
    appeal;

·

August 13, 2021, the purchaser and its principal
    brought a motion requesting a writ of possession for the subject property; Woollcombe
    J. rejected the appellants position that the motion judges order was
    automatically stayed by the appeal; although she found an evidentiary basis existed
    for issuing a writ of possession under rule 60.10, in light of the appeal and
    the prejudice the appellant would experience if improperly evicted, she accepted
    the appellants proposal to pay $4,500 per month rent to the purchaser pending
    disposition of the appeal commencing September 1, 2021 and directed that in
    default of payment a writ of possession would issue.

The test for setting
    aside an administrative dismissal for delay and extending the time for
    perfection

[15]

The test on a motion of this kind is
    well-established. The ultimate question is whether the justice of the case
    warrants the order requested. Factors to be considered in making the decision
    are: (i) whether the appellant formed an intention to appeal within the appeal
    period; (ii) the length of the delay; (iii) the explanation for the delay; (iv)
    the merits of the proposed appeal; and (v) prejudice to the responding parties.
    See, for example,
Paulsson v. University of Illinois
, 2010 ONCA 21, at
    para. 2;
Krawczynski v. Ralph Culp and Associates Inc.
, 2019 ONCA 399,
    69 C.B.R. (6th) 163, at para. 9;
Frey v. MacDonald
(1989), 33 C.P.C.
    (2d) 13 (Ont. C.A.), at p. 14;
Enbridge Gas Distribution v. Froese
,
    2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.

Discussion

Criteria (i), (ii) and (iii) - Timeliness and Explanation
    for the delay

[16]

There is no issue that the appellant satisfied
    the first criterion of the test on this motion, having served her notice of
    appeal within the appeal period.

[17]

Relying on rule 61.09(1)(b), appellants counsel
    argued that because the appellant wished to raise issues on appeal about the
    denial of the adjournment request and was therefore required to obtain a
    transcript of the motion judges oral reasons, the time for perfecting this
    appeal should have been extended to 60 days after the transcript was filed.

[18]

I reject this submission. Rule 61.09(1)(b) applies
    where a transcript of evidence is required for the appeal. No oral evidence was
    called on the motion. Rule 61.09(1)(b) does not apply. If the appellant
    required additional time to perfect to obtain a transcript of any submissions
    and the motion judges oral reasons for refusing the adjournment request, the
    proper course was to move for an extension of the time to perfect prior to the
    dismissal for delay.

[19]

The responding parties contend that the delay in
    this matter amounts to five months and is inordinate; that the evidence
    demonstrates that the appellant did not maintain a consistent intention to
    appeal throughout that period; and that the appellant has not provided an
    adequate explanation for her delay:
Codina v. Canadian Broadcasting
    Corporation
, 2020 ONCA 116, at paras. 2 and 4;
Dupuis v. Waterloo (City)
,
    2020 ONCA 96, at paras. 3-5.

[20]

I conclude that the period of delay is just
    short of four months, being the period from August 13, 2021, the date the
    appellant should have perfected, to December 6, 2021, the first date on which
    the appellant was prepared to proceed with this motion.

[21]

In support of their position on delay, the responding
    parties submit that appellants counsel ignored six written requests over five
    months to perfect the appeal and settle the form of the order under appeal.
    They also note that the appellant did not order the transcripts of the motion
    hearing until August 9, 2021, almost two months after the motion judges
    reasons were released; did not advise responding parties counsel that
    transcripts had been ordered until October 26, 2021; and did not move for an
    extension of time to perfect in response to the Registrars warning. Further,
    the appellant did not obtain the opinion of value she seeks to adduce as fresh
    evidence until November 2021, which was after her appeal was dismissed for
    delay.

[22]

I agree that the appellant did not move efficiently
    or with dispatch in attempting to perfect this appeal. However, I do not accept
    that the evidence demonstrates that she abandoned her intention to appeal at
    any point or that the delay in this case should be characterized as inordinate
    or point strongly to the dismissal of this motion.

[23]

I reach my conclusions for the following reasons.
    First, in my view, an assessment of the various factors requires a contextual
    approach. Each factor must be considered in the context of the overall
    circumstances of the case and may carry more or less weight in a particular
    case depending on the circumstances. Second, the record in this case suggests that
    appellant's counsel believed, albeit incorrectly, that the time for perfecting
    the appeal was governed by rule 61.09(1)(b). Third, to date, this action has
    not proceeded at a torrid pace. The appellant commenced her action in March
    2020 and judgment was granted on a partial summary judgment motion initiated by
    her in June 2021. The responding parties point to procedural missteps on the
    part of the appellant. However, I see no indication in the record that the responding
    parties attempted to bring this matter to fruition more quickly. Fourth, while
    the responding parties maintain they were anxious to have the appeal move
    forward, they failed to demonstrate any urgency when consulted about scheduling
    this motion. The appellant was prepared to bring this motion on December 6, 2021,
    but in mid-November, the purchasers counsel indicated he had no December dates.

[24]

No doubt appellants counsel could and should have
    proceeded towards perfection in a more efficient manner. However, considered in
    the context of the overall pace of this litigation, I do not consider that the approximately
    four months of delay should be characterized as inordinate or that counsel's
    mistaken understanding of rule 61.09 should be visited on the appellant to
    justify refusing the requested relief.

Criteria (iv) - Merits of the Appeal

[25]

The responding parties submit that the merits of
    the appeal are weak at best, or non-existent. They point to the motion judges
    detailed reasons and findings of fact; to her conclusion that most of the
    traditional badges of fraud are absent from the circumstantial evidence; and to
    the standard of review and the inherent difficulty of overturning findings of
    fact and findings of mixed fact and law on appeal. In addition, they underline
    the importance of the motion judges following specific findings:

i)

the appellants agreement to sell the property
    for $1,000,000 in February 2020 reflected fair market value (thus a sale
    involving no commissions for $970,000 in the same time frame did not run afoul
    of the chargees obligations);

ii)

the potential badge of fraud of secrecy (i.e.,
    the chargees failure to advise the appellant of its pending sale) was
    explained by four factors: a) a reasonable belief, based on past experience,
    that the offer the appellant had secured for the sale of the property was an
    effort to delay the chargee; b) a reasonable belief that such offer had
    expired; c) a reasonable belief based on past experience and the fact that the
    appellant was still living on the property that she would attempt to thwart the
    chargees intended sale through some form of injunctive proceedings; and d) the
    absence of any professional obligation on the part of the chargees lawyer to
    disclose the sale to the appellant; and

iii)

the potential badge of fraud relating to the
    haste with which the power of sale was conducted was negated by several
    factors: a) the period of time during which the appellant had been in default
    under the charge (since July 2018); b) the appellants failure to comply with Minutes
    of Settlement in the actions on the covenant in the charges under which Bindaas
    had given her an opportunity to refinance; c) the reasonable belief that the
    offer the appellant had obtained was a stall or had expired; and d) the
    reasonable desire in all the circumstances to get on with enforcing the charge.

[26]

In addition, the responding parties submit there
    is no basis to overturn the motion judges ruling that the valuation evidence
    tendered by the appellant following cross-examinations was not admissible on
    the motion. Finally, they submit that the appellant will not succeed on any
    proposed fresh evidence application. The valuation evidence proposed to be
    submitted could and should have been tendered on the June 9, 2021 motion. Similarly,
    even assuming it could constitute fresh evidence, the decision in
Di Trapani
    v. 9706151 Canada Ltd
., 2019 ONSC 7311 was available well before June 9,
    2021.

[27]

I agree that the appellant is unlikely to
    succeed in any proposed fresh evidence application or in overturning the motion
    judges ruling that the tendered valuation evidence was inadmissible. I also agree
    that, given the findings made by the trial judge, the appellant faces an uphill
    challenge on appeal. Nonetheless, I am satisfied that the appellant has
    arguable grounds of appeal concerning whether the motion judge properly weighed
    the evidence concerning potential badges of fraud and fair market value to
    support her summary dismissal of the appellants claims for damages and/or a
    reconveyance of the property based on fraud and conspiracy.

[28]

Several of the appellants grounds of appeal
    relate to how the motion judge weighed the evidence concerning the inferences
    to be drawn from aspects of the responding parties conduct in completing the
    power of sale, including the following:

·

failing to list the property on an MLS listing
    service;

·

entering into a sale agreement on February 27,
    2020, which was the day before the appellants proposed sale to Abraham was
    scheduled to close, knowing of the Abraham agreement of purchase and sale;

·

entering into a sale agreement with a rushed
    closing date;

·

failing to advise the appellant of the impending
    sale in order to avoid the possibility of injunction proceedings;

·

providing an inflated discharge statement, which
    scuttled the Abraham sale;

·

failing to advise the appellant or the
    subsequent chargees that the property had been sold for a considerable period after
    the sale was completed;

·

the purchasers failure to inspect the property;

·

the purchasers intention to flip the property
    for a profit;

·

the fact that within just over two months after
    completing the purchase, 1103 had increased the charges registered against the
    property to a total of $1,142,500, almost $175,000 more than it paid for the
    property.

[29]

In many cases, the manner in which a first
    instance judge weighs evidence will be immune from appellate review. In this
    case however, the motion judge appears to have premised her analysis of the responding
    parties conduct, at least in part, on the traditional badges of fraud generally
    associated with conveyances made to avoid creditors. Some of those factors
    appear to have little or no application to assessing the
bona fides
of
    a sale to a third party under a power of sale contained in a charge.

[30]

For example, the following factors referred to
    by the motion judge appear to be of little relevance: whether the vendor
    remained in possession and continued to use the property as his own; whether
    the transfer was made in the face of threatened legal proceedings; and whether
    the transfer documents contained false statements.

[31]

Further, I consider it open to question whether
    the trial judge assessed the evidence bearing in mind the particular context of
    power of sale proceedings and a chargees duties in that context, potentially
    calling into question the motion judges explanations for excusing the secrecy
    and haste of this transaction. As an example, it may be questionable whether protracted
    prior court proceedings in relation to a chargees claim for payment on the
    covenant can in any way relieve a chargee from its obligations when subsequently
    exercising a power of sale, or serve as an explanation for secrecy and haste in
    conducting the power of sale. A mortgagee/chargees obligation when
    selling under power of sale has been described generally as an obligation to
    take reasonable precautions to obtain the true market value of the property as
    of the date of the sale:
Centurion Farms Ltd. v. Citifinancial Canada Inc.
,
    2013 ONCA 79, at para. 4. See also Gowling Lafleur Henderson LLP,
Marriott
    and Dunn: Practice in Mortgage Remedies in Ontario
, looseleaf, 5th ed. (Toronto:
    Carswell, 1995), c. 33. It may be questionable whether the motion judge
    assessed the secrecy and haste with which the sale to 1103 was carried out taking
    account of the chargees obligation in carrying out a power of sale.

[32]

Similarly, the motion judge appeared to give
    little or no weight to the failure of the chargee to obtain a judgment for
    possession, a writ of possession and ultimately vacant possession of the
    property prior to sale; the failure of the chargee to list the property on a multiple
    listing service; and to the purchasers evidence that he assess[ed] the
    situation similarly to how one would assess a salvaged car. None of these
    features of this transaction create confidence that the chargee obtained a
    proper price.

[33]

Further, when discussing the traditional badges
    of fraud, the motion judge noted that 1103 was a
bona fide
purchaser
    that has repeatedly tried to take possession of the property. In making that
    observation, the motion judge appears to be assuming there is nothing out of
    the ordinary about a purchaser under a power of sale having to take steps to
    obtain possession of the property.

[34]

That is not only a questionable assumption, it may
    overlook a problem that other judges in this matter may also have overlooked,
    namely, that it is not open to a purchaser to simply move under rule 60.10 for
    leave to issue a writ a possession. I will discuss this further under the next
    heading. I simply note that the failure of a chargee to deliver vacant
    possession on closing, when exercising a power of sale, does not create
    confidence that the chargee obtained a proper price.

[35]

In the result, while I acknowledge that the
    appellant faces an uphill climb on appeal, I am satisfied she has arguable
    grounds of appeal. Moreover, I observe that, in general, it is desirable that
    cases be determined on their merits where possible rather than being dismissed
    over procedural shortcomings.

Criteria (v) - Prejudice to the Responding Parties

[36]

The responding parties point to their inability
    to collect the costs ordered payable to them by the motion judge ($140,000)
    together with the carrying costs being incurred by the purchaser in relation to
    the property (approximately $7,600 per month) as well as the purchasers
    inability to obtain a writ of possession pending appeal as supporting their
    position that the appellants motion should be dismissed.

[37]

I am not persuaded that these arguments point
    strongly to dismissing the appellants motion.

[38]

The responding parties' entitlement to costs is
    dependent on the outcome of the appellants appeal.

[39]

In failing to insist on or confirm vacant
    possession on closing, in the context of a power of sale of a residential
    dwelling, the purchaser assumed the risk of being unable to obtain vacant
    possession and the prospect of a legal proceeding and all the steps that
    proceeding might entail. In my view, it is not open to the purchaser to claim
    that the consequences of that decision, and its decision to heavily mortgage
    the purchased property, in part by placing an additional charge before it had
    obtained vacant possession, should determine whether the appellant should be
    entitled to proceed with her appeal.

[40]

If anything, the quantum of the carrying costs
    and the purchasers failure to require vacant possession on closing may raise
    questions about the
bona fides
of the transaction.

[41]

I observe, in addition, that the record before
    me does not demonstrate that the chargees or the purchasers have taken any of
    the steps necessary to put the purchaser in a position to promptly obtain court
    enforced possession of the property.

[42]

The statements of claim issued by the chargees
    to enforce the first and second charges are not in the record. Although I
    consider it possible, even likely, that they included claims for possession of
    the charged property, that is not clear. If they included such claims, their
    failure to obtain an order for possession prior to the sale of the property is
    unexplained.

[43]

Further, based on my review of the record, it is
    not clear that either chargee could now seek an order for possession. As noted
    above, in footnote 6, the first chargees statement of claim may have been issued
    in contravention of s. 42(1) of the
Mortgages Act
, R.S.O. 1990, c. M.40.
    Now that the second chargees charge has been extinguished by the power of
    sale, it is not clear to me that an order for possession could be issued in the
    second chargees action.

[44]

In addition, nothing in the record suggests that
    the purchaser has commenced a proceeding that would entitle it to obtain an
    order for possession of the property and thereafter a writ of possession to
    enforce that order. The purchaser did not claim an order for possession in its
    Statement of Defence and Counterclaim and Crossclaim delivered in the
    underlying action.

[45]

The purchaser argues that it is entitled to
    obtain leave to issue a writ of possession under rule 60.10 on motion in this
    proceeding by virtue of its status as the registered owner of the property and
    that only this appeal is standing in its way.

[46]

The purchaser relies on a plain reading of the
    emphasized portions of rule 60.10(1) as set out below:

60.10(1)
A writ of possession
(Form
    60C)
may be issued only with leave of the court, obtained on motion without
    notice
or at the time an order entitling a party to possession is made.
    [Emphasis added.]

[47]

In my view, the purchasers submission is wrong
    in law. Rule 60.10 must be read in the context of the entire rule. Rule 60 is entitled
    Enforcement of Orders. The headings over the immediately following
    subsections reinforce that the subject matter of Rule 60 is the enforcement of
    orders. Rule 60.02 is entitled Enforcement of Order for Payment or Recovery of
    Money. Rule 60.03 is entitled Enforcement of Order for Possession of Land. Equally
    important, a plain reading of rule 60.03 makes it clear that the purpose of
    rule 60.10 is to enable the enforcement of an order for possession:

60.03 An order for the recovery or delivery of
    the possession of land may be enforced by a writ of possession (Form 60C) under
    rule 60.10.

[48]

Reading Rule 60 as a whole, I consider that,
    like a writ of seizure and sale or a writ of sequestration, also provided for
    under Rule 60, a writ of possession is a tool to enforce a pre-existing court
    order
[11]
:
    see also
Bank of Canada v. Ehtisham
, 2010 ONSC 1528, at para. 9.

[49]

At para. 31 of his affidavit sworn August 7,
    2020, the purchasers solicitor, Mr. Dhillon, deposes that [a]t all material
    times, 1103 Inc. knew that it was purchasing the Property under Power of Sale
    and without possession. On the record before me, the purchaser assumed the
    risk of purchasing the property without insisting on vacant possession on
    closing and subsequently has taken no steps to put itself in a position to
    obtain timely court enforced possession of the property.

[50]

In these circumstances, I fail to see why the
    purchasers circumstances should favour foreclosing the appellants right of
    appeal. The purchaser is not in a position to immediately obtain court enforced
    possession of the property if the appellants motion is dismissed. In any
    event, its
carrying costs with
    respect to the property are currently being offset to some degree by the rental
    payments ordered by Woollcombe J. commencing September 2021 (in the amount of $4500
    per month).

Criteria (vi) - The Justice of the Case

[51]

In addition to their arguments about timeliness,
    the merits of the appeal and prejudice, the responding parties point to various
    other factors they say indicate the justice of the case favours dismissing the
    appellants motion.

[52]

These factors include: i) an assertion that 1103
    is a
bona fide
purchaser for value of the property; ii) the
    appellants default under the charge and continuing occupation of the property;
    and iii) unclean hands or misrepresented evidence concerning matters such as
    her relationship with Bobby Abrahams, whether she raised her children at the
    property, and lack of explanation as to why the money to close the February 28,
    2020 agreement of purchase and sale was not paid into court until May 2020.

[53]

As I have said, I am satisfied that the
    appellant has raised arguable grounds of appeal and I am not satisfied that the
    factors of timeliness or prejudice to the responding parties support
    foreclosing the appellants right of appeal.

[54]

Concerning the additional matters raised by the
    responding parties, item i) depends on the outcome of the appeal.

[55]

Concerning item ii), the issue now is not the
    appellants default under the charge. Rather, it is the propriety of the responding
    parties conduct in carrying out the sale under power of sale. That depends on
    the outcome of the appeal. Moreover, the issues on appeal are not restricted to
    the
bona fides
of the March 9, 2020 transfer but also include whether
    a proper price was obtained.

[56]

Concerning item iii), no doubt there are issues
    around the complete terms of the Abrahams agreement of purchase and sale and
    why closing funds were not paid into court until May 2020. On the other hand,
    there is an issue about the inflated discharge statement delivered by Bindaas
    real estate lawyer on February 28, 2020 and the failure of any lawyer on behalf
    of Bindaas to respond to inquiries about the statement, attend the appellants
    motions relating to the discharge amount or disclose the pending sale to 1103.

[57]

In all the circumstances, I am satisfied that
    the relief requested by the appellant should be granted but on terms concerning
    proceeding with the appeal.

Disposition

[58]

Based on the foregoing reasons, the Registrars
    order dismissing the appellants appeal for delay shall be set aside provided
    that the appellant has taken all necessary steps to perfect the appeal,
    including filing any fresh evidence application but excluding filing the formal
    order under appeal and/or the transcript(s) of the motion hearing, within seven
    days of the release of these reasons subject to the following conditions:

i)

the appellant shall proceed forthwith to settle
    and obtain the formal order under appeal and obtain the transcript(s) of the
    motion hearing and shall serve and file each in a supplementary appeal book(s)
    as soon as possible once obtained;

ii)

the hearing of the appeal is expedited and a
    copy of this order shall be provided to the appeal scheduling unit so that the
    appeal may be scheduled as soon as it is perfected; and

iii)

this order is without prejudice to the
    purchasers right to commence an action for possession of the property if so
    advised.

[59]

The moving party may file submissions on costs
    within 10 days of receipt of these reasons, the responding parties may file
    their submissions within 10 days thereafter with all such submissions subject
    to a five-page limit.

Janet
    Simmons J.A.





[1]
The
    moving party also requested an order that the transcripts of the motion hearing
    be sent to the Registrar of this court. However, it is up to counsel, not the
    court, to arrange for and ensure the filing of any relevant transcripts. During
    the oral hearing, counsel submitted that the transcripts of the motion hearing
    have now been filed. However, the transcript(s) are not in the court file.



[2]
Although Brinder Nagra was a named chargee pursuant to an assignment of charge
    at the time of the transfer under power of sale and was a named transferor in
    the transfer, the parties seem to be treating Bindaas as the chargee.



[3]
The
    first charge was originally in favour of Bindaas, Sujoy Pal and Dr. Mangesh
    Inamdar Medicine Professional Corporation, but it was subsequently assigned to
    Bindaas and Sujoy Pal on February 12, 2019 and to Bindaas and Brinder Nagra on
    July 11, 2019.



[4]
It
    appears that the appellants motion heard on June 9, 2021 may have been a
    cross-motion she brought in response to a motion by the purchaser and the
    purchasers principal (Shan Mangal) on November 24, 2020 requiring the
    appellant to pay expenses associated with her continued occupation of the
    property or, in the alternative, for a writ of possession: endorsement of Andre
    J. dated November 26, 2020; endorsement of Woollcombe J. dated August 18, 2021.



[5]
Because the record before me does not include the exhibits to the responding
    parties affidavits filed before the motion judge, I am unable to verify that
    this chronology is completely accurate.



[6]
The
    responding parties material is inconsistent concerning whether this action was
    to enforce the first charge or the second charge. At para. 28 of an affidavit
    sworn August 7, 2020, Mr. Dhillon, who acted for the purchaser, asserts it related
    to the first charge. At para. 19 of an affidavit sworn January 29, 2021, Mr. Randhawa,
    who acted for the chargee, asserts it relates to the second charge. As I have
    said, the affidavits included in record before me do not include exhibits.
    Because Mr. Randhawa asserts that the plaintiffs in the action were Bindaas,
    Pal and Inamdar Corp., the chargees in the first charge, I conclude it is more
    likely that this action related to the first charge. This is relevant because
    s. 42(1) of the
Mortgages Act
, R.S.O.
    1990, c. M.40, prohibits action being taken to enforce a mortgage/charge during
    a notice period under a notice of sale. However, contravention of s. 42 likely
    only affects the validity of the action, not the notice of sale:
Assari v. Kuchar
, 2010 ONSC 4828, at
    para. 45. Here, the action on the first charge has been settled and judgment
    granted concerning the claim for payment on the covenant. To the extent that
    the action may have included a claim for possession, a fact which I am unable
    to determine based on the record before me, this issue may be relevant to the
    enforceability of that aspect of the claim.



[7]
The
    title of proceedings refers only to the action on the first charge, but the
    body of the judgment refers to both actions.



[8]
This
    comes from para. 22 of the motion judges reasons. However, no particulars of
    the date or parties involved are provided. From the context, however, it
    appears the discharge statement was likely requested on February 26 or 27,
    2020.



[9]
Although not referred to in Andre J.s endorsement, a subsequent endorsement by
    Woollcombe J. indicates this relief was requested.



[10]
In
    directing that the matter be heard on June 9, 2021 and that monies be paid into
    court, Andre J. referred to the appellants counterclaim. However, the
    context suggests that he was referring to the appellants cross-motion.



[11]

Nothing in these reasons should be taken as challenging the
    validity of the orders of Andre J. or Woollcombe J. Unappealed, they stand as
    valid orders.


