



COURT OF APPEAL FOR ONTARIO

CITATION:
719299
    Ontario Inc. v. West, 2012 ONCA 406

DATE:  20120612

DOCKET: C54561

Doherty, Juriansz and Ducharme JJ.A.

BETWEEN

719299 Ontario Inc.

Plaintiff (Respondent)

and

Ella Marie West and Stan West

Defendants (Appellants)

Aaron Lundrigan, for the defendants (appellants)

Angelo C. DAscanio, for the plaintiff (respondent)

Heard:  June 11, 2012

On appeal from the order of Justice J.A. Desotti of the Superior
    Court of Justice, dated August 15, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The arguments about the deficiencies in the notice of sale proceedings
    are irrelevant to the appeal.  The motion judge declared the notice of sale
    issued under the
Mortgage Act
void.

[2]

The appellant argues that it was an implied term of the overall lending
    arrangement that the respondent was required to advance the entire amount of
    the loan ($200,000) before moving against the appellant for any alleged default. 
    We disagree.  The
General Security
    Agreement
provides that the respondent could withhold payments in
    the event of a default.  Paragraph 9 of the
General
    Security Agreement
provides that bankruptcy is an event of
    default.  The borrowing company voluntarily petitioned itself in bankruptcy on
    April 27, 2007.  There is no evidence that the remaining funds ($50,000) were
    due to be advanced before the default occurred.  The respondent was entitled to
    move for possession under the terms of the mortgage.  The motion judge properly
    granted summary judgment.

[3]

The appeal is dismissed.  The stay of order granted by Cronk J.A.
    expires.

[4]

Pursuant to para. 8 of the standard charge terms, the costs of the
    appeal shall be to the plaintiff (respondent) to be added to any amount found
    owing under the mortgage.  For clarity, the relevant standard terms are those
    set out at Tab 17 of the respondents compendium (#200033).


