Executive Summary: Key Legal and Evidentiary Issues

• Enforceability of the mortgage charge and whether any genuine issue for trial existed regarding the defendant’s admitted payment default
• Application of Rule 20.04 summary judgment principles to a straightforward mortgage enforcement claim with no responding affidavit or evidence from the defendant
• Effect of alleged undue pressure by a third party (the defendant’s daughter) on the validity and enforceability of the mortgage in favour of an innocent lender
• Interpretation and application of standard charge terms, including acceleration of the debt, compound interest on arrears, and solicitor-client costs recovery
• Satisfaction of notice requirements for issuing a writ of possession where the mortgagor is the sole occupant of the property
• Appropriateness and quantum of solicitor-client costs in mortgage enforcement proceedings leading to judgment and a writ of possession

Background and facts of the dispute

Leslie Stone (the plaintiff) brought a motion for summary judgment to enforce a mortgage and obtain a writ of possession over a condominium unit located at 55 Cooper Street, Unit 1616, Toronto, Ontario. The defendant, Iran Zandi Shirvani, was self-represented and received translation assistance from her son during the virtual hearing. The mortgage (“Charge”) was entered into on June 25, 2024, for a six-month term in the principal amount of $64,900, with the charge maturing on January 1, 2025. Default occurred on or about January 1, 2025, and the mortgage was neither renewed nor extended. Following default, the plaintiff issued a demand letter on February 21, 2025. When the defendant failed to cure the default, the plaintiff issued and served a statement of claim on March 12, 2025, seeking, among other relief, payment of the outstanding amount and a writ of possession over the condo. The defendant filed a statement of defence in which she admitted that she obtained the mortgage and that the plaintiff is entitled to be repaid but asserted she had been pressured by her daughter to purchase the property. She explained that she was never truly able to afford the condo, had lost her savings, and had been trying to sell the unit with the lender’s cooperation from an early stage. She was willing to have the property sold and, at an earlier point, had asked to remain in the property while it was marketed, though at the hearing she did not repeat that specific request. Through her son, she objected to paying the contractual interest rate and related fees, but she did not dispute that she had signed the charge or that she had defaulted.

Key mortgage terms and contractual provisions

The charge was for six months and provided for interest at the rate of 9.990% per annum, calculated monthly, not in advance, with monthly payments of $540.29 due on the first day of each month. The agreement incorporated standard charge terms that governed the parties’ rights in the event of default. These terms included a clause allowing the chargee (the lender) to lease or sell the land, without entering into possession, if the default persisted for at least fifteen days and at least thirty-five days’ notice had been given. Another provision permitted the plaintiff, at its option, to declare the entire principal and accrued interest immediately due upon default, effectively accelerating the debt. The terms also contained a compound interest clause providing that unpaid interest would itself bear interest at the contractual rate if interest payments were not made when due. In addition, the defendant was made liable under the mortgage for “all costs, charges and expenses on a solicitor and client basis,” which formed the basis of the plaintiff’s claim for substantial legal costs associated with the enforcement proceeding. After the defendant remained in default, the plaintiff issued a Notice of Sale Under Mortgage and a Notice of Intention to Enforce Security under subsection 244(1) of the Bankruptcy and Insolvency Act, both sent to the defendant by registered mail on March 19, 2025. The plaintiff alleged that as of March 12, 2025, the sum of $79,542.09 was due and owing under the charge, and that interest at the 9.990% rate should run from that date to judgment or payment.

Procedural history and the defendant’s limited response

The matter was set down for summary judgment by an endorsement dated June 25, 2025, which included a timetable for the filing of motion materials and factums and for any cross-examinations. The plaintiff served its motion record, supported by an affidavit from Maxwell Nilsen, the Senior Default Recovery Officer for the plaintiff’s servicing agent, CMI Mortgage Investment Corp. The defendant, however, did not file any responding motion record, affidavits, or factum within the timetable. No cross-examinations were conducted. The court recognized that the defendant might have had difficulty uploading materials and acknowledged the challenges of self-representation, but emphasized that all parties are required to comply with the Rules of Civil Procedure. In the absence of sworn evidence from the defendant, the court was left with the plaintiff’s unchallenged documentary record and the defendant’s earlier statement of defence. At the hearing, the defendant referred to a “Statement of Fact and Law” prepared and signed not by her but by another daughter (not the one alleged to have defrauded her). This document described the defendant’s age, health, financial hardship, and the conduct of both the daughter and the lenders. It requested that the court allow the lender to sell the property while permitting the defendant to remain in the unit during the marketing period, and then to give her 30 days after sale to vacate, to avoid homelessness. It also asserted that multiple parties, including the lenders, shared responsibility for the defendant’s predicament due to insufficient assessment of her repayment ability. Counsel for the plaintiff confirmed receiving this document in October 2025, within the timetable. The court, however, noted that it was not prepared by a person authorized to represent the defendant and lacked legal authorities; strictly speaking, it was not a proper factum. Nonetheless, the judge reviewed it and found that it merely elaborated on the same themes in the statement of defence and did not request concrete legal relief against the amount claimed by the plaintiff.

Summary judgment framework and the “no genuine issue” analysis

The court applied Rule 20.04(2)(a) of the Rules of Civil Procedure, which requires the court to grant summary judgment if there is no genuine issue requiring a trial with respect to a claim or defence. The judge reviewed the governing principles, including the need for the moving party to show that there is no genuine issue for trial on the enforcement of the mortgage and the associated relief. Once that threshold is met, the onus shifts to the responding party to demonstrate that its claim or defence has a real chance of success, under authorities such as Sanzone v. Schechter and 1061590 Ontario Ltd. v. Ontario Jockey Club. The court also relied on Hryniak v. Mauldin in emphasizing that summary judgment is appropriate where the process permits necessary fact-finding, application of the law to those facts, and offers a proportionate, expeditious, and less expensive route to a just result. The judge noted that under Rule 20.04(2.1), the court is entitled to weigh evidence, evaluate credibility, and draw reasonable inferences on a summary judgment motion, assuming that the record essentially contains all the evidence that would have been presented at trial. Within this framework, the judge observed that the defendant had not filed any affidavit in response to the motion. Relying on authority that a failure to respond with evidence allows the court to infer an inability to substantiate a claim, the court treated the plaintiff’s affidavit and documentary record as effectively uncontradicted. The defendant’s core position was factual: she said she had been pressured by her daughter into entering the mortgage and had suffered financial and personal hardship as a result. But she did not deny signing the mortgage or owing the money that was advanced. She also accepted that the property could be sold and did not challenge the plaintiff’s entitlement to a writ of possession, focusing mainly on her objection to the level of interest and to the burden of costs and fees. On this record, the court concluded there was no genuine issue requiring a trial and that it was appropriate and proportionate to decide the matter by summary judgment.

Assessment of default, remedies, and writ of possession

On the merits, the court was satisfied on a balance of probabilities that the plaintiff had proved its claim based on the statement of claim, the Nilsen affidavit, and the supporting documents. The defendant was in default under the mortgage, default had continued despite demand, and the standard charge terms had been triggered, including the acceleration of the entire principal and accrued interest. The defendant’s explanation that she had been pressured by her daughter, while sympathetic, did not legally undermine the plaintiff’s rights as an innocent lender. The court accepted that the defendant agreed to both the sale of the condo and to a writ of possession, with her concerns focused on the financial burden rather than the remedies themselves. The plaintiff sought a writ of possession in addition to monetary judgment. Under Rule 60.10, the court may grant leave to issue a writ of possession only if all persons actually in possession of the land have received sufficient notice of the proceeding to allow them to seek relief. The plaintiff’s factum argued that the issuance and service of the statement of claim—which specifically sought possession of the property and acknowledged that the defendant lived there while attempting to sell it—meant that all necessary parties had received notice and had an opportunity to respond, including to the request for a writ that could be enforced by the sheriff to schedule an eviction. At the hearing, the defendant confirmed she was living alone in the condo; there were no other persons in possession whose interests needed to be considered. As the defendant offered no legal basis to refuse the relief sought, the court granted an order entitling the plaintiff to a writ of possession, while also recognizing the harshness of the result for the defendant.

Interest, costs, and final outcome

Turning to the financial relief, the plaintiff originally alleged that $79,542.09 was due and owing as at March 12, 2025, with interest at 9.990% per annum thereafter. However, in the final order, the court directed that the defendant pay to the plaintiff the amount of $75,542.09 owing on the charge, reflecting some adjustment from the claim figure. The court also considered the plaintiff’s request for costs of $16,631.35, relying on the clause in the mortgage that made the defendant liable for legal costs on a solicitor-client basis in the event of default. After reviewing the nature of the work performed and the hourly rates charged, the judge found that the costs were reasonable and within what could reasonably have been contemplated by the defendant when she entered into the charge. Accordingly, the defendant was ordered to pay the plaintiff’s costs of the motion and the action, ultimately fixed at $16,631.55. A writ of possession was granted in the plaintiff’s favour, but the court incorporated the plaintiff’s without-prejudice offer to stay the enforcement of the writ for 30 days, thereby providing the defendant with a short window to make alternative housing arrangements before eviction. In practical terms, the judgment confirms that the plaintiff, Leslie Stone, was fully successful on the summary judgment motion, securing both monetary and possessory relief. The total monetary amount ordered in the plaintiff’s favour consists of $75,542.09 on the mortgage plus $16,631.55 in costs, for an overall sum of $92,173.64, alongside the writ of possession and a brief stay of its enforcement.