





CITATION:
Resolute Land Bank
          Ltd. v.
Sieber
, 2011
          ONCA 459



DATE: 20110616



DOCKET: C53049, C53050 and C53231



COURT OF APPEAL FOR ONTARIO



Feldman, Blair and LaForme JJ.A.



BETWEEN



Resolute Land Bank Ltd. and Crooks Hollow Farm
          Corporation



Applicants (Appellants in Appeal)



and



Helmut
          J. Sieber, Resolute Developments Inc.,

Canadian Agra Holdings Inc.,
          Bruce Agra Inc., and Canadian Agra Corporation



Respondents (Respondents in Appeal

AND BETWEEN

Resolute
          Development Inc.

Plaintiff (Respondent in Appeal)

and

Charles Juravinski, Crooks Hollow
          Farm Corporation

and
Resolute Land Bank Ltd.

Defendants (Appellants in Appeal



James Steven Cimba, for the appellants



Raymond F. Leach, for the respondents



Heard and released orally: June 9, 2011

On appeal from the decision of Justice Leonard Ricchetti of
          the Superior Court of Justice dated November 9, 2010.



ENDORSEMENT



[1]

The appellants seek to set aside two aspects of the
    order of Ricchetti J. wherein he granted possession of the mortgaged property.
    Before Ricchetti J., the appellants did not seek to proceed with the
    application for a declaration of the amount due, nor did they raise the issue
    of the disposition of the share of Resolute Land Bank that was transferred to
    the appellants as part of the mortgage loan transaction. Counsel for the
    respondent fairly concedes that both these issues were not put before the
    application judge by the appellants, and in respect of the disposition of the
    share, he concedes that that order cannot stand.

[2]

The application judge ordered the parties to file
    further material on the quantum issue and to return in December 2010 to argue
    it. The parties complied with the order and had a full hearing wherein the amount
    owing on the mortgage was determined.

[3]

In our view, there is no basis to set aside that aspect
    of the order. Although the appellants did not ask for that issue to be
    determined, they made a strategic decision to participate in a full hearing on
    the issue without objection to the application judge in order to obtain the
    order for possession. On the appeal, they did not allege any error other than
    proceeding with the hearing, or any specific error in the quantum. In our view,
    there is no injustice in the result.

[4]

The appeal is allowed in part. Paragraph 98 of the
    reasons dated November 9, 2010 regarding the disposition of the Resolute Land
    Bank share (which finding was not part of the order of that date) is set aside.
    The appeal is otherwise dismissed. As success was divided, there will be no
    costs of the appeal.


Signed:           K. Feldman
    J.A.

R.
    A. Blair J.A.


H. S.
LaForme
J.A.


