Executive Summary: Key Legal and Evidentiary Issues

• Summary judgment was granted because there was no genuine issue for trial on CIBC’s claim that the borrower had defaulted on the mortgage.
• The bank’s evidence, presented through its employee’s affidavits, was accepted as proper, non-hearsay proof of the mortgage, renewal, payments, and default, and went unchallenged by any sworn evidence from the borrower.
• The borrower’s objections to the affiant’s role and knowledge, without contrary evidence or a competing record, were found insufficient to justify a trial.
• Allegations that the mortgage was unconscionable, including arguments about lack of independent legal advice, failed given the borrower’s real estate expertise and signed consent to a joint retainer.
• Requests for a six-month stay and “leniency” were rejected because personal hardship and potential prejudice to non-parties are not legal grounds to prevent a mortgagee from enforcing its contractual rights.
• The court enforced the charge terms, granting CIBC possession rights, judgment for approximately $925,629.92 plus interest, and substantial indemnity costs fixed at $12,136.59, reflecting the borrower’s obligation to pay enforcement costs under the mortgage.

Background and parties

This case arises from a mortgage enforcement proceeding brought by the Canadian Imperial Bank of Commerce (CIBC) against borrower Irina Kucherenko in relation to a residential property at 19 Albani Street in Etobicoke, Ontario. The property is the borrower’s principal residence, and she is the registered owner. The defendant is a licensed real estate professional with prior experience owning properties and obtaining mortgages. In 2020, CIBC advanced a mortgage loan in the principal amount of $948,000, secured by a charge on the property for a three-year term. The same lawyer, Anam Mahmood Khan, acted under a joint retainer for both CIBC and the borrower, with the borrower signing a written consent acknowledging the conflict and permitting the joint representation. The evidentiary record before the court included the signed mortgage, a Mortgage Disclosure Statement first dated May 8, 2020 and revised on May 15, 2020 to reflect the variable interest rate of 2.450%, the borrower’s acknowledgment of receipt of Standard Charge Terms, and two Acknowledgments and Directions authorizing Mr. Khan to register the mortgage.

The mortgage renewal and financial context

The mortgage came up for renewal on May 8, 2023. By this time, broader changes in global and domestic financial conditions meant that interest rates were substantially higher than when the mortgage was first granted in 2020. CIBC provided standard renewal information offering the borrower several potential interest rate and term options. The borrower ultimately agreed to renew on a three-year “Variable Flex Closed” basis at a rate of 6.15% per annum. Because the product was a variable-rate mortgage, the interest rate later adjusted, and at the time of the court’s decision the applicable rate stood at 4.400% per annum. The renewed mortgage was scheduled to mature on May 8, 2026. In addition to CIBC’s charge, there were at least three other encumbrances on the title, including more than one charge in favour of the Canada Revenue Agency and two charges in favour of private lenders. Property taxes were also outstanding, further complicating the borrower’s financial position and the equity structure on the property.

Payment history, default, and enforcement steps

Initially, the borrower paid according to the mortgage charge and renewal terms. However, in or around June 2024, she began missing payments. Default formally occurred on September 8, 2024, although the court noted some irregular payments after that date. All payments from the borrower ceased by the end of December 2024. In response, CIBC pursued contractual enforcement remedies. It first sent a Demand Letter on September 11, 2024, and subsequently issued a Notice of Sale on January 14, 2025, signalling its intention to exercise its power of sale under the mortgage. After an appearance at Civil Practice Court on July 30, 2025, CIBC brought a formal motion for summary judgment, issuing its Notice of Motion on July 31, 2025. The borrower had earlier signalled her intention to contest by filing a Notice of Intent to Defend on March 28, 2025. Nonetheless, she did not file a sworn affidavit in response to the bank’s summary judgment materials.

Key mortgage terms and allocation of legal costs

The standard charge terms were central to the court’s analysis of the rights and obligations on default. Under the mortgage charge, if the borrower defaulted, the principal would become immediately due and payable, and CIBC would be entitled to seek possession of the property. The court emphasized that these are typical enforcement rights for a mortgagee when a mortgagor falls into arrears and the default is not cured. A further important contractual term dealt with legal costs. The charge required the borrower to pay, on a substantial indemnity basis, all lawyers’ fees incurred by CIBC “with respect to any action to collect or otherwise enforce the Charge.” This clause framed the bank’s entitlement to substantial indemnity costs of the enforcement proceeding, subject to the court’s assessment of reasonableness. The borrower attempted to argue that she never actually received the Standard Charge Terms she had acknowledged in writing, but the court found this allegation unlikely given her signed acknowledgment and her status as a real estate professional who would understand what she was signing in a standard residential mortgage transaction.

The summary judgment motion and evidentiary objections

CIBC moved for summary judgment under Rule 20 of the Ontario Rules of Civil Procedure. The legal test required the court to grant summary judgment where there is no genuine issue requiring a trial, either because the court can make the necessary findings of fact, apply the law, and reach a fair and just result on the existing record, or because enhanced fact-finding powers allow it to do so efficiently. The bank filed an affidavit and reply affidavit sworn by its employee, Cynthia Fontecilla, attaching the key documents: mortgage origination materials, renewal correspondence, charge terms, the discharge or payment history showing arrears, and a calculation of the amount owing. The borrower did not provide a competing affidavit and instead focused on attacking the sufficiency of Ms. Fontecilla’s evidence. She argued that the affiant’s precise role and authority within CIBC were unclear, that the affidavits did not prove personal knowledge of the file, and that the contents were therefore inadmissible hearsay that required testing at trial. The court rejected these arguments. It held that CIBC was entitled to select any appropriate affiant to speak on its behalf and that, in a case of this sort, the bank did not need to disclose the affiant’s exact position if the case did not turn on specialized knowledge tied to that role. The function of Ms. Fontecilla’s evidence was to introduce business records showing the making, renewal, and enforcement of the mortgage and the payments made or missed. The judge held that this was an appropriate use of sworn affidavit evidence, not inadmissible hearsay. Because the borrower offered no proof to counter the core factual assertions regarding the debt and default, her objections were described as “bald” and insufficient to create a triable issue. The court concluded that there was no genuine issue requiring a trial and that summary judgment was a fair, proportionate, and cost-effective procedure for resolving the dispute.

Arguments about unconscionability and lack of independent legal advice

Substantively, the borrower contended that the original mortgage contract was unconscionable, largely on the basis that she did not have truly independent legal advice when she entered into the joint retainer with the lawyer acting for both her and CIBC. She alleged that this absence of independent advice meant the bank should not be allowed to enforce the mortgage strictly according to its terms. The court was not persuaded. It emphasized that the borrower had signed a clear Consent to Act re Conflict, acknowledging the joint retainer with the same solicitor. It also gave weight to the borrower’s professional background: as a licensed real estate professional, she would be familiar with standard residential mortgage documentation and the typical process of obtaining and registering a charge. The borrower herself relied on that expertise in urging a six-month stay so she could sell the property on her own, presenting herself as better equipped than a forced sale by the bank to secure a desirable price. The judge found it inconsistent for the borrower to invoke her real estate expertise to support a stay while simultaneously claiming she was taken advantage of during a routine mortgage transaction using standard forms. On the evidence, the court concluded that the process leading to the original 2020 mortgage was common and familiar and that any lack of separate counsel did not rise to the level of unconscionability that would justify setting aside or refusing to enforce the contract.

Requests for a six-month stay and the “balance of convenience”

The borrower also urged the court to stay the enforcement process for six months. During that time, she proposed to pay CIBC $3,700 per month, which was less than required under the current mortgage terms, while she attempted to sell the home herself. She argued that the “balance of convenience” supported this compromise, particularly because her elderly mother lived in the home and other creditors, including the Canada Revenue Agency and private lenders, might be prejudiced by a forced sale at a lower price. The court held that there was no proper legal basis for the requested stay on these facts. It noted that neither the mother nor the other creditors were parties to the proceeding or appeared before the court. While the judge expressed sympathy regarding the possible displacement of an elderly parent from her residence, she held that this type of personal hardship is not the kind of prejudice the court may weigh when deciding whether to grant relief on a mortgage enforcement motion. The court relied on existing case law to confirm that loss of a home, although severe, is a common consequence of default and does not itself override a mortgagee’s contractual rights.

Appeal to judicial leniency and impact of financial hardship

Lastly, the borrower asked the court for leniency on the basis of her financial struggles and changing circumstances. She argued that she was not someone walking away from obligations but a borrower who had run into temporary difficulties—including obligations on two other properties that had since been sold—and was now in a better position to resume payment if the bank accepted reduced terms. The court accepted that the borrower had faced real financial strain and had other obligations, but stressed that these factors did not legally permit the court to rewrite the mortgage contract. The borrower’s proposal effectively asked the court to order CIBC to accept lesser payments and defer or dilute its enforcement rights. The judge held that, absent extraordinary circumstances, which were not present here, a mortgagee is entitled to enforce its bargain, including seeking sale of the property to satisfy the debt. The law does not allow a court to impose a more lenient arrangement on the mortgagee simply because a borrower’s financial picture is difficult or has improved only after default.

Findings on liability, default, and amount owing

Having rejected the borrower’s evidentiary and equitable arguments, the court accepted CIBC’s evidence as proving the claim. It found that the parties had entered into the initial $948,000 mortgage in 2020 and that the borrower signed all the relevant acknowledgments, including receipt of the Mortgage Disclosure Statement and the Standard Charge Terms, and consented to the joint retainer. The court found it unlikely that she would have signed such acknowledgments without actually receiving the documents, particularly in light of her professional expertise. It confirmed that CIBC notified the borrower in April 2023 of the upcoming May 8, 2023 renewal and that she voluntarily renewed at a variable rate of 6.15% without any evidence of duress or improper pressure from the bank. The court accepted the evidence that default occurred on September 8, 2024, after several missed payments, and that this default had not been cured. According to the bank’s calculation, the amount outstanding under the charge as of July 8, 2025 was $925,629.92, with interest accruing thereafter at the variable rate of 4.400% per annum. The court further confirmed that the charge terms entitled CIBC, upon default, to demand full payment of the principal, obtain judgment, and seek possession of the property. On this record, CIBC was found to have proved its case for judgment on the debt and possession of the mortgaged property.

Costs and final outcome

On costs, CIBC sought $12,136.59, relying on the contractual provision in the mortgage that obliges the borrower, upon default, to pay the bank’s legal costs on a substantial indemnity basis in connection with any enforcement action. The court reviewed the work performed and the hourly rates charged and concluded that the amount claimed was reasonable in light of the contractual standard and the nature of the proceeding. It therefore ordered the borrower to pay costs fixed at $12,136.59. In the final order, the court granted CIBC’s motion for summary judgment against the borrower, confirmed CIBC’s entitlement to possession of the property and judgment on the mortgage debt, and awarded substantial indemnity costs in the amount claimed. In practical terms, the successful party was the plaintiff, Canadian Imperial Bank of Commerce, which obtained judgment for the mortgage balance of $925,629.92 as of July 8, 2025, plus ongoing interest at 4.400% per annum, together with fixed costs of $12,136.59, for a total quantified amount of $937,766.51 exclusive of accruing interest.