Executive Summary: Key Legal and Evidentiary Issues

• Canadian Imperial Bank of Commerce sought summary judgment and an order for possession of a mortgaged property after the defendant defaulted on mortgage payments beginning December 31, 2024.
• Default was undisputed — the defendant did not contest the fact of default or the amounts owed under the mortgage.
• Outstanding realty taxes of $12,132.23 as of April 8, 2025 constituted an additional default event under the mortgage terms.
• Section 23 of the Mortgages Act was at issue, with the court considering whether the defendant could invoke it to cure the default and stay proceedings.
• The defendant's proposed reinstatement plan was found to be speculative, as it depended on a mortgage broker closing unrelated transactions for third-party clients.
• No cross-motion was brought by the defendant under section 23(1), and no money was paid into court as security for costs.

Facts of the case

The defendant, Erum Khan, owns a property located at 247 Rowe Terrace, Milton, Ontario. On August 30, 2021, the defendant obtained a mortgage from the Canadian Imperial Bank of Commerce (CIBC) for a principal sum of $1,100,000, at an interest rate of prime minus 0.89% per annum, registered as a charge against the property. Monthly payments were initially set at $3,828.07, later changed to semi-monthly payments of $1,913.43. According to the plaintiff, the defendant defaulted on mortgage payments as of December 31, 2024, and the default continued at the time of the motion. A demand for arrears was issued by letter dated April 7, 2025, to which no payment was received. The plaintiff also obtained a tax certificate revealing outstanding realty taxes of $12,132.23 as of April 8, 2025, which the plaintiff characterized as an additional default under the mortgage. A notice of sale under the mortgage was issued and served on May 9, 2025. The plaintiff's motion for summary judgment was originally returnable on December 18, 2025, but was adjourned twice — first by Justice Doi to April 16, 2026, to allow the defendant to retain new counsel, and then by Justice Chozik to May 27, 2026, after the defendant indicated that a second mortgage would pay out on May 15, 2026 and cure the default. That second mortgage did not materialize.

Mortgage terms and statutory provisions at issue

The mortgage was registered as a charge against the subject property, with an acceleration clause providing that default in payment rendered the entire principal and interest due. As of May 27, 2026, the plaintiff sought the following amounts: a principal balance of $1,077,108.58; interest to April 21, 2025 of $52,141.88; interest from April 22, 2025 to May 27, 2026 of $50,212.00; and property management charges of $45.20, for a total of $1,179,507.66. Section 23 of the Mortgages Act was also central to the defendant's position. That provision allows a mortgagor, upon paying $100 into court as security for costs, to apply for dismissal or a stay of proceedings upon payment of arrears and costs — provided that no sale, recovery of possession, or final foreclosure has yet taken place.

Court's reasoning and analysis

Associate Justice Glick applied the framework established in Hryniak v. Mauldin, 2014 SCC 7, which directs a court to first determine whether there is a genuine issue requiring a trial based on the evidentiary record, without resort to enhanced fact-finding powers. The court noted that where an Associate Justice hears a summary judgment motion, the enhanced powers under Rule 20.04(2.1) are not available. On the undisputed facts — default since December 31, 2024, no dispute as to the amounts owing, and the plaintiff's support for the property management charge — the court was satisfied that no genuine issue requiring a trial existed. The court agreed with the defendant's interpretation of section 23 of the Mortgages Act, following Gord Harris Construction Ltd. v. Stern, [1992] O.J. No. 1389, that the section permits a mortgagor to pay arrears rather than the full mortgage balance to cure a default. The court also accepted, following Stewart v. Wilbus Holdings Ltd., [2006] O.J. No. 2619, that payment of arrears is not a strict condition precedent to making an application under section 23. However, the court found that the defendant had not properly pursued this remedy — no cross-motion under section 23(1) had been brought, and no money had been paid into court as security for costs. The defendant's reinstatement proposal, advanced through the affidavit of mortgage broker Mansoor Ahmed Khan, was found to be entirely speculative: it depended on Mr. Khan closing mortgages for two unrelated clients, after which he proposed to lend the defendant funds in increments to cover arrears by November 1, 2026. The court further noted there was no plan to address the outstanding realty tax arrears. The history of prior adjournments — and the failure of the previously promised second mortgage to materialize — reinforced the court's conclusion that the current proposal lacked sufficient certainty.

Ruling and overall outcome

Associate Justice Glick granted CIBC's motion for summary judgment in the amount of $1,179,507.66 and made an order for possession of the subject property at 247 Rowe Terrace, Milton, Ontario. The court declined to stay enforcement of the summary judgment under Rule 20.08, citing the speculative nature of the defendant's proposal and the history of adjournments. The parties were encouraged to settle costs; if unable to do so, written submissions were to be made through the administration office, with the plaintiff to serve submissions within seven days of the decision and the defendant seven days thereafter, with no reply permitted.