863935 Ontario Inc. v. 1576949 Ontario Inc.

863935 Ontario Inc. (Appellant / Applicant) and 1576949 Ontario Inc. (Respondent)

Ontario Court of Appeal

Doherty J.A., Goudge J.A., and MacPherson J.A.

Heard: February 16, 2010

Judgment: February 17, 2010

Docket: CA C50634

© Thomson Reuters Canada Limited or its Licensors. All rights reserved.

Proceedings: affirming 863935 Ontario Inc. v. 1576949 Ontario Inc. (2009), 2009 CarswellOnt 3366 (Ont. S.C.J.)

Counsel: Larry W. Keown for Appellant

Robert Malen for Respondent

Subject: Property; Corporate and Commercial; Civil Practice and Procedure

Real property — Mortgages — Priorities — Between types of creditors — Registered mortgagees — Effect of postponement agreement

Applicant entered into agreement of purchase and sale with respect to development property — On closing, purchaser provided vendor take-back mortgage to applicant and also granted mortgage to respondent — Applicant, purchaser and respondent entered into priorities agreement in respect of mortgages — Both mortgages went into default — Applicant commenced sale proceedings and entered into agreement with third party purchaser — Applicant could not obtain mortgage discharge statement in respect of respondent’s mortgage — Applicant brought application for order directing respondent to deliver discharge statement and for reference to Master to determine amount owing under mortgage — On consent, order was granted that provided for discharge of mortgage on payment into court of specified amount — Request for reference to Master was also granted — Purchase and sale order was not completed and monies were not paid into court — Reference was adjourned when applicant advised respondent that it was its position that priorities agreement did not grant respondent priority in respect of interest owing — Applicant brought motion for order clarifying terms of consent order and for order interpreting priorities agreement — Judge determined, inter alia, that respondent’s mortgage had priority over applicant’s in respect of both permitted advances as defined in agreement and interest thereon — Applicant appealed — Appeal dismissed on consent, without costs.

Civil practice and procedure — Judgments and orders — Amending or varying — Consent orders

Applicant entered into agreement of purchase and sale with respect to development property — On closing, purchaser provided vendor take-back mortgage to applicant and also granted mortgage to respondent — Applicant, purchaser and respondent entered into priorities agreement in respect of mortgages — Both mortgages went into default — Applicant commenced sale proceedings and entered into agreement with third party purchaser — Applicant could not obtain mortgage discharge statement in respect of respondent’s mortgage — Applicant brought application for order directing respondent to deliver discharge statement and for reference to Master to determine amount owing under mortgage — On consent, order was granted that provided for discharge of mortgage on payment into court of specified amount — Purchase and sale order was not completed and monies were not paid into court — Reference was adjourned when applicant advised respondent that it was its position that priorities agreement did not grant respondent priority in respect of interest owing — Applicant brought motion for order clarifying terms of consent order and for order interpreting priorities agreement — Judge determined, inter alia, that respondent’s mortgage had priority over applicant’s in respect of both permitted advances as defined in agreement and interest thereon — Applicant appealed — Appeal dismissed on consent, without costs.

 APPEAL by applicant from judgment reported at 863935 Ontario Inc. v. 1576949 Ontario Inc. (2009), 2009 CarswellOnt 3366 (Ont. S.C.J.), which concerned clarification of order and interpretation of agreement.

Per curiam:

1        On consent, the appeal is dismissed without costs.

Appeal dismissed on consent.