



COURT OF APPEAL FOR ONTARIO

CITATION: JGB Collateral v. Rochon, 2020
    ONCA 804

DATE:  20201216

DOCKET: M51754 (C67482)

Rouleau, Hoy and Hourigan JJ.A.

BETWEEN

JGB
    Collateral, LLC, a Delaware Limited Liability Company

Plaintiff

(Responding
    Party/Appellant)

and

Donna Jean Hewitt Rochon
and John Rochon

Defendants

(
Moving Parties
/Respondents)

Jonathan P.M. Collings, for the moving
    party Donna Jean Hewitt Rochon

Taayo Simmonds, for the moving party
    John Rochon

Melanie Ouanounou and Carlie Fox, for
    the responding party

Heard: in writing

REASONS FOR DECISION

[1]

Ten days after the court allowed the respondents appeal and granted
    summary judgment to the respondent, authorizing it to enforce its mortgage and
    have the property at issue sold, the moving party Donna Rochon advised the
    respondent, for the first time, that she is a farmer for the purposes of the
Farm Debt Mediation Act
, S. C. 1997, c. 21 (the FDMA).

[2]

Under s. 21 of the FDMA, a secured creditor is required to give a
    statutory notice to a farmer engaged in farming for commercial purposes prior
    to enforcing a security interest against the farmers property, advising the
    farmer of the right to make an application under s. 5 of the FDMA. Section 5 of
    the FDMA allows a farmer (as defined in the FDMA) to apply to an administrator
    for a stay of proceedings by its creditors and a mediation among those
    creditors, or a review of the farmers financial affairs and a mediation among
    the farmers secured creditors. If the secured creditor does not give notice
    under s. 21, the steps taken by the secured creditor to enforce its security
    are null and void.

[3]

The respondent did not give notice under s. 21 of the FDMA. Ms. Rochon
    now seeks a declaration that all proceedings commenced by the respondent to
    enforce its mortgage are null and void,
ab initio
,
    on this basis.

[4]

Ms. Rochon is barred from raising this issue at this stage of these
    proceedings. The enforceability of the mortgage was squarely at issue on the
    appeal. On the record before us, there is a clear inference that the she was
    aware of commercial farmers rights under the FDMA at the time the appeal was
    heard. Assuming her argument has any merit, it ought to have been raised long ago.

[5]

In any event, the appellant has tendered no credible evidence in support
    of her assertion that she is a farmer engaged in farming for commercial
    purposes within the meaning of the FDMA.

[6]

This motion is a patent attempt to further delay her creditors, and an
    abuse of process.

[7]

Accordingly, the motion is dismissed.

[8]

The respondent is entitled to its costs of the motion. If the
    parties are unable to agree on the costs of the motion, the respondent shall
    file cost submissions not exceeding five pages within 14 days after release of
    these reasons. The moving parties may file joint responding cost submissions,
    not exceeding five pages, within 10 days thereafter.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.

C.W.
    Hourigan J.A.


