



COURT OF APPEAL FOR ONTARIO

CITATION: Mikhail v. Hill, 2018 ONCA 353

DATE: 20180410

DOCKET: C64216

C64217

MacPherson, Pepall and Miller JJ.A.

BETWEEN

C64216

Michael Mikhail and Fawzia Mary Mikhail

Plaintiffs (Appellants)

and

Linda Hill,
Paul Mitchell
,
    Al Sinclair and Hallmark Realty Ltd.

Defendants (
Respondent
)

AND BETWEEN

C64217

Linda Hill and Paul Mitchell

Plaintiffs (Respondents)

and

Michael Mikhail and Fawzia Mary Mikhail

Defendants (Appellants)

Michael Mikhail, acting in person for the appellants

Paul Gaglia, for the respondent, Paul Mitchell (C64216)

Nathan Lean, for the respondents, Linda Hill and Paul
    Mitchell

Heard and released orally: April 9, 2018

On appeal from the order of Justice Meridith Donohue of
    the Superior Court of Justice, dated July 20, 2017.

REASONS FOR DECISION

[1]

The appellants Michael Mikhail and Fawzia Mary Mikhail appeal from the
    order of Donohue J. of the Superior Court of Justice dated July 20, 2017. In
    the order, the motion judge granted summary judgment in favour of the
    respondents Linda Hill and Paul Mitchell.

[2]

The summary judgement motion was made in two related actions involving
    the sale of a property in Brampton from the respondent Linda Hill to the
    appellant Fawzia Mary Mikhail. The parties agreed to a vendor takeback mortgage
    made between Hill and her husband Paul Mitchell as mortgagees and Ms. Mikhail
    as mortgagor. The respondent Michael Mikhail, Ms. Mikhails son, guaranteed his
    mothers observance of all terms, covenants and conditions under the mortgage.

[3]

The appellants defaulted under the mortgage. The respondents issued a
    Notice of Sale. The appellants responded with their own action and a motion to
    set aside the respondents Notice of Sale.

[4]

The appellants motion to set aside the Notice of Sale and the
    respondents summary judgement motion were heard together. The respondents were
    successful on both motions. The motion judge concluded:

There is a valid mortgage, there is a proper notice of sale and
    there is default on the mortgage since May 2016.

This is a proper case for summary judgment pursuant to the
    standard charge terms.

[5]

The appellants appeal from the motion judges decision.

[6]

The appellants principal argument is that they missed only one payment,
    and that by accident, and that they quickly indicated a willingness to correct
    the error. Accordingly, they assert the consequences of a Notice of Sale and a
    motion for summary judgment were too severe.

[7]

We do not accept this submission. The motion judge carefully reviewed
    the record and found as a fact that the default started in May 2016 and
    continued until the legal proceedings were commenced several months later. Nor
    was there any evidence before her that the default had been remedied. We see no
    basis for interfering with this conclusion and the analysis supporting it.

[8]

The appeal is dismissed. The respondents are entitled to their costs of
    the appeal fixed at $2,000 and $1,000 (Mitchell only) respectively, inclusive
    of disbursements and HST.

J.C. MacPherson J.A.

S.E. Pepall J.A.

B.W. Miller J.A.


