Executive Summary: Key Legal and Evidentiary Issues

• Both parties failed to meet the evidentiary threshold required for a summary judgment motion, leaving the court unable to make the necessary findings of fact.
• Several key documents tendered by the plaintiffs were not properly in evidence, as they were not appended to a sworn affidavit.
• Critical facts were absent from the plaintiffs' record, including details of post-maturity mortgage continuation, payment history, and proof of service of the notice of sale.
• Disputed factual issues — particularly whether the notice of sale was served on the defendant — independently precluded summary judgment.
• Defence counsel cited a non-existent case, Waldick v. Penney, 2019 ONCA 201, and a second case that did not support the propositions advanced.
• No costs were awarded to either party, given the procedural and evidentiary failures on both sides.

Facts of the case

In January 2022, the plaintiffs — Wellington Hathshire Mortgage Investment Corp. and Madeero Lending Management Inc. — advanced a mortgage to the defendant, Trevor Russell, secured across several properties. The specific charge at issue was $245,000 at 11% interest, registered against the defendant's property at 794027 3rd Line EHS, Mono, Ontario (the "Mono property"), and this was the only property subject to the motion. The mortgage matured on June 17, 2022, but continued thereafter under circumstances not explained in the record. The defendant made payments from January 2022 until November 2024, when payments stopped. There is no evidence of the amounts paid or the demands made after default. The defendant denied receiving a notice of sale, while the plaintiffs asserted — without supporting evidence — that one had been served.

Procedural background

The plaintiffs brought a motion for summary judgment seeking judgment in the amount of $245,000, plus interest, leave to issue a writ of possession, and costs. At the first motion date of April 28, 2026, the court noted deficiencies in the plaintiffs' materials and granted an adjournment, allowing the plaintiffs to file a fully updated motion record. The defendant also failed to serve any responding materials prior to the April 28 date. When the matter returned on May 28, 2026, the defendant served not only responding materials but also a notice of cross-motion seeking declaratory relief — filed without leave. The court refused to hear the cross-motion and dismissed it without prejudice, leaving the defendant free to bring it properly on another date.

Summary judgment law and the applicable test

The court applied the framework from Hyrniak v. Maulin, 2014 SCC 7, under which summary judgment is appropriate only where the court can make the necessary findings of fact, apply the law, and reach a fair and just result in a manner proportionate to the complexity and expense of a trial. Rule 20.04(2)(a) of the Rules of Civil Procedure directs the court to grant summary judgment where there is no genuine issue requiring a trial. Critically, both parties bear a positive duty to place their best evidence before the court on a summary judgment motion; neither is permitted to suggest that additional evidence will be led at trial.

Deficiencies in the plaintiffs' materials

The plaintiffs' record was deficient in two significant respects. First, several documents were not appended to a sworn affidavit and therefore could not be considered by the court. These included two signed mortgage commitment letters dated December 8, 2021, various documents dated December 14, 2024, and a trust ledger from November 2024. Second, the record was missing vital facts: how the Mono property charge related to the broader mortgage transaction; what occurred when the mortgage matured in June 2022 but continued without a clear renewal; what demands for payment were made after November 2024 and how they were communicated; and whether and how the notice of sale was sent by registered mail. The plaintiffs argued in oral submissions that some missing information was not "in dispute" and that the outstanding debt should be the full mortgage amount — a position the court rejected, observing that the judgment must reflect the actual outstanding debt after accounting for payments received.

Deficiencies in the defendant's materials

The defendant's record was also problematic. His factum — prepared, counsel acknowledged, largely by the defendant himself under a partial retainer — cited Waldick v. Penney, 2019 ONCA 201, for two propositions: that a mortgagee exercising a power of sale must act in good faith and obtain fair market value, and that the complete absence of appraisal evidence is a triable issue defeating summary judgment. The case does not exist. The citation 2019 ONCA 201 belongs to an entirely different decision that does not support those propositions. In oral argument, the defendant also referred the court to Hogan v. The Queen, 1995 CanLII 18906, a Federal Court case dealing with fair market value following a mortgage sale — a case in which the phrase "summary judgment" does not appear at all. The court cautioned both the defendant and his counsel to carefully review all citations before placing them before the court.

Ruling and overall outcome

The motion for summary judgment was dismissed. The court found that the first prong of the Hyrniak test could not be satisfied: the record did not permit the necessary findings of fact, both because critical evidence was absent and because at least one material fact — whether the notice of sale was served on the defendant — remained in genuine dispute. The plaintiffs' request to file further and better materials on a later date was rejected; having already been given a second opportunity to file a complete record, they were not entitled to cure deficiencies through yet another round of materials. The defendant's cross-motion was dismissed without prejudice. No costs were awarded to either party: the plaintiffs did not succeed, and the defendant had failed to respond to the motion in the first instance, filed deficient materials, and submitted misleading case citations. The total monetary award was $0.