RECENT AMENDMENTS OF THE RULES OF CIVIL PROCEDURE PERTAINING TO COMMENCING MORTGAGE ENFORCEMENT PROCEEDINGS
JULY 2015 | AUTHOR: AMANDEEP SIDHU
Prior to March 31, 2015, a proceeding to enforce a mortgage could be commenced in any court in Ontario. Rule 13.1.01(2) of the Rules of Civil Procedure1 states:
….the proceeding may be commenced at any court office in any county named in the originating process.
Prior to March 31, 2015, a mortgagee was basically at liberty to commence their mortgage enforcement lawsuit in any Court in Ontario regardless of where the mortgaged property was located or where the mortgagor(s) resided.
This has now changed. On March 31, 2015, Rule 13.1.01 of the Rules of Civil Procedure2 was amended by adding a new subrule, namely, Rule 13.1.01(3). Rule 13.1.01(3) of the Rules of Civil Procedure3 states:
In the case of an originating process, whether it is brought under Rule 64 (Mortgage Actions) or otherwise, that contains a claim relating to a mortgage, including a claim for payment of a mortgage debt or for possession of a mortgaged property, the proceeding shall be commenced in the county that the regional senior judge of a region in which the property is located, in whole or in part, designates within that region for such claims.
As such, mortgage enforcement proceeding must now be commenced at one of the court locations in the judicial region where the mortgaged property is located that is designated by the local regional senior judge.
Even prior to March 31, 2015, we saw a shift in mortgage enforcement proceedings being transferred. In the recent case of Sub-Prime Mortgage Corp. v. Kaweesa et al.,4 the mortgaged property was located in Toronto, the mortgage agreement was entered into in Toronto, the lawyers associated with the action were located in Toronto and all the potential witnesses resided in Toronto – however, the action was commenced in Oshawa. At paragraph 7, Justice M. L. Edwards stated:
The moving party does have the onus of establishing that Toronto is "significantly better" than Oshawa as the venue for trial. In that regard, given that Oshawa has absolutely no connection to the matters at issue in this action; that none of the parties reside in Oshawa; that none of the lawyers reside in Oshawa; that the subject matter of the action is a Toronto property; and that there is no local community interest in Oshawa with the subject matter of this proceeding, I am satisfied that Toronto is, in fact, the better venue for the hearing of this matter, particularly given the fact that Toronto can afford as timely a summary judgment motion and trial date as Oshawa can.
As a result, we will be seeing a shift in mortgage proceedings being commenced in the jurisdiction where the mortgaged property is located. This recent amendment to the Rules of Civil Procedure5 can only be seen as a benefit to the mortgagor(s).
__________________________
1. RRO 1990, Reg 1994
2. RRO 1990, Reg 1994
3. RRO 1990, Reg 1994
4. 2015 ONSC 541
5. RRO 1990, Reg 1994
If you have any questions relating to any of the above, please do not hesitate to contact Amandeep Sidhu at asidhu@kmblaw.com or 905.276.0401.
….the proceeding may be commenced at any court office in any county named in the originating process.
Prior to March 31, 2015, a mortgagee was basically at liberty to commence their mortgage enforcement lawsuit in any Court in Ontario regardless of where the mortgaged property was located or where the mortgagor(s) resided.
This has now changed. On March 31, 2015, Rule 13.1.01 of the Rules of Civil Procedure2 was amended by adding a new subrule, namely, Rule 13.1.01(3). Rule 13.1.01(3) of the Rules of Civil Procedure3 states:
In the case of an originating process, whether it is brought under Rule 64 (Mortgage Actions) or otherwise, that contains a claim relating to a mortgage, including a claim for payment of a mortgage debt or for possession of a mortgaged property, the proceeding shall be commenced in the county that the regional senior judge of a region in which the property is located, in whole or in part, designates within that region for such claims.
As such, mortgage enforcement proceeding must now be commenced at one of the court locations in the judicial region where the mortgaged property is located that is designated by the local regional senior judge.
Even prior to March 31, 2015, we saw a shift in mortgage enforcement proceedings being transferred. In the recent case of Sub-Prime Mortgage Corp. v. Kaweesa et al.,4 the mortgaged property was located in Toronto, the mortgage agreement was entered into in Toronto, the lawyers associated with the action were located in Toronto and all the potential witnesses resided in Toronto – however, the action was commenced in Oshawa. At paragraph 7, Justice M. L. Edwards stated:
The moving party does have the onus of establishing that Toronto is "significantly better" than Oshawa as the venue for trial. In that regard, given that Oshawa has absolutely no connection to the matters at issue in this action; that none of the parties reside in Oshawa; that none of the lawyers reside in Oshawa; that the subject matter of the action is a Toronto property; and that there is no local community interest in Oshawa with the subject matter of this proceeding, I am satisfied that Toronto is, in fact, the better venue for the hearing of this matter, particularly given the fact that Toronto can afford as timely a summary judgment motion and trial date as Oshawa can.
As a result, we will be seeing a shift in mortgage proceedings being commenced in the jurisdiction where the mortgaged property is located. This recent amendment to the Rules of Civil Procedure5 can only be seen as a benefit to the mortgagor(s).
__________________________
1. RRO 1990, Reg 1994
2. RRO 1990, Reg 1994
3. RRO 1990, Reg 1994
4. 2015 ONSC 541
5. RRO 1990, Reg 1994
If you have any questions relating to any of the above, please do not hesitate to contact Amandeep Sidhu at asidhu@kmblaw.com or 905.276.0401.
This article is provided for general information purposes and should not be considered a legal opinion. Clients are advised to obtain legal advice on their specific situations.
