Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff sought to stay enforcement of a matured mortgage and amend her statement of claim.
   
• Defendant already held lawful possession of the property under prior court orders upheld on appeal.
   
• Amendment was refused because the proposed pleading failed to mark additions and deletions as required.
   
• Section 22 of the Mortgages Act did not assist the plaintiff since the entire principal had become due.
   
• No irreparable harm was found because loss of the property was a contemplated consequence of default.
   
• Balance of convenience favoured the defendant given eighteen months of non-payment and existing possession.
   

Facts of the case

The plaintiff, R. Powell, owns a property at 1352 Highway 8, Hamilton, Ontario. She mortgaged the property to the defendant, Amur Capital Income Fund Inc. [the endorsement names a second defendant, Eva Lake, in the case caption, but discusses only "the defendant" throughout without distinguishing her role], under a mortgage registered December 17, 2021, securing a principal sum of $712,500.00 for an initial one-year term. The mortgage was renewed twice, with the final maturity date set at December 15, 2024. It matured on that date, was neither renewed nor paid out, and remained outstanding for more than 18 months by the time of this motion. The defendant demanded payment on January 15, 2025, and issued a notice of sale on January 30, 2025, but the plaintiff did not redeem the mortgage. Separately, the defendant had already obtained orders from Valente J. and Krawchenko J. placing it in possession of the property under sections 50 and 52 of the Mortgages Act. The plaintiff's attempts to set aside those orders and to appeal were both dismissed, most recently by van Rensburg J. sitting as a single judge of the Court of Appeal, who found "no possible merit" to the appeal and confirmed the defendant's lawful possession. At the time of this motion, the defendant was in the process of selling the property, though no agreement of purchase and sale had yet been signed. On this motion, the self-represented plaintiff sought leave to amend her statement of claim and an interlocutory injunction staying enforcement of the mortgage.

Policy and legislative provisions at issue

Two statutory provisions framed the dispute. Section 22 of the Mortgages Act, on which the plaintiff relied, governs a mortgagor's right to request a payout statement and to redeem before that right is irrevocably lost. Justice Bordin found this provision poorly suited to the facts, since the mortgage had matured and the full principal was due rather than merely being in arrears. Citing 1173928 Ontario Inc. v. 1463096 Ontario Inc., 2018 ONCA 669, the court noted that section 22 "is not to be used by a mortgagor who does not desire to bring the mortgage into good standing." The plaintiff also raised constitutional issues in her original statement of claim, including alleged breaches of sections 7 and 15(1) of the Charter and section 35 of the Constitution Act, 1982, tied to her status as a non-status Indigenous person. She later withdrew these allegations in her submissions, though they remained formally part of the unamended claim. The court observed that the Charter and the Constitution Act bind the Crown, not private parties such as the defendant, limiting the relevance of these provisions to the enforcement dispute before it.

Reasoning and analysis

Justice Bordin declined to grant leave to amend the statement of claim. The proposed amended pleading, found at Exhibit C to the plaintiff's affidavit, omitted the constitutional and Charter allegations from the original claim but did not follow the required format: withdrawn allegations were not struck through and new allegations were not underlined. This made it impossible for the court to determine precisely which claims from the original statement the plaintiff intended to pursue. Leave was refused until a properly formatted amended pleading is filed, though the dismissal was without prejudice to renewing the motion, subject to one caveat: the plaintiff could no longer seek a stay of mortgage enforcement, as that issue had already been resolved by the Court of Appeal and by the reasons in this endorsement. Turning to the stay itself, the court applied the three-part test for an interlocutory injunction: a serious question to be tried, irreparable harm, and the balance of convenience. On the first branch, the court found no serious issue to be tried regarding the defendant's right to enforce the mortgage or proceed with sale. The plaintiff had not paid into court or trust any amount she acknowledged owing, had not provided evidence that the mortgage was invalid or that she lacked the benefit of the advanced funds, and had not demonstrated an ability to repay. Her disputes over interest, fees, and charges were held to be resolvable through an accounting once the property was sold, per Double D Developments Ltd. v. Green. On irreparable harm, the court held that loss of the property was a consequence expressly contemplated by the mortgage terms the plaintiff had agreed to, and could not itself constitute irreparable harm, citing Pilaszek and Park v. Manulife Bank of Canada, 2025 ONCA 815. Damages were found to be an adequate remedy if the plaintiff succeeded on her underlying claims. On balance of convenience, the court weighed the defendant's 18 months of non-payment and existing lawful possession against the plaintiff's position and found the balance favoured the defendant.

Ruling and overall outcome

The court dismissed the plaintiff's motion for a stay of mortgage enforcement and declined to grant leave to amend the statement of claim in its current form, though the plaintiff was permitted to renew the amendment motion with a properly formatted pleading. The defendant, Amur Capital Income Fund Inc., was the successful party on the motion, preserving its ability to proceed with enforcement and sale of the property. No monetary award, cost amount, or damages figure was ordered in this endorsement; the court instead set out a process for costs, directing that if the parties could not agree, they were to exchange a bill of costs and brief written submissions, with costs deemed settled if none were filed by the end of business on September 4, 2026.