



COURT OF APPEAL FOR ONTARIO

CITATION: 2495940 Ontario Inc. v. 2633346
Ontario Inc., 2021 ONCA 312

DATE: 20210510

DOCKET: M52237 (C69029)

Juriansz, van Rensburg and
Sossin JJ.A.

BETWEEN

2495940 Ontario Inc.

Applicant

(Appellant/Responding Party)

and

2633346 Ontario Inc.

Respondent

(Respondent/Moving Party)

Scott Turton, for the moving party

Behrouz Amouzgar and Stefanija Savic,
for the responding party

Heard: May 4, 2021 by videoconference



REASONS
FOR DECISION

[1]

The appellant 2495950 Ontario Inc. (249) and the respondent 2633346
Ontario Inc. (263) are mortgage lenders engaged in a priorities dispute: 249
holds a second mortgage registered against the borrowers property, while 263
holds a first registered mortgage by assignment. 249 seeks to appeal the
application judges determination that certain charges were proper charges
under 263s mortgage and would be recoverable in the enforcement of its
mortgage, and that the first mortgage has priority over the second. 263 moves
to quash the appeal on the basis that the order under appeal is interlocutory.

[2]

We agree. The appeal is from the order which provides at para. 2:

This court declares that subject to the pending trial of an
issue, the disputed charges, as the term is defined in the Reasons, arising
from, and the increased interest rate under, the Renewed First Mortgage are
enforceable and have priority over the outstanding indebtedness under the
Second Mortgage.

[3]

The matter was before the application judge who made a determination of
the charges on the consent of the parties, but directed a trial of an issue:
whether the assignment of the first mortgage to the respondent was fraudulent.
Paragraph 1 of the order under appeal adjourns the determination of that
issue to the trial of an issue. The application judge remained seized of the
trial of the issue. She specifically stated at para. 28 of her reasons that
any rulings I make will be subject to the outcome of the trial of an issue.

[4]

Counsel for 249 argued strenuously that the motion judge decided certain
issues, and that therefore the order is final. These decisions were made in the
course of the application proceedings, and are subject to any order that may be
made following the trial of the issue of fraud. The very subject matter of
the litigation has not yet been determined. The enforceability of 263s
mortgage and its priority over 249s mortgage and for what amounts cannot be
determined on a final basis until the trial of the fraud issue has taken place.
That remains to be determined only after the trial of the issue of fraud. See
Waldman
v. Thomson Reuters Canada Ltd.
, 2015 ONCA 53, at para. 22.

[5]

The order is interlocutory. The appeal is therefore quashed.
Costs to 263 of this motion and the appeal are fixed at $5,000, inclusive of
HST and disbursements.

R.G.
Juriansz J.A.

K.
van Rensburg J.A.

L.
Sossin J.A.


