Breach of a ‘peremptory’ order is not necessarily fatal. But motion judge will still dismiss proceedings on procedural grounds alone using onus of proof.
Mortgagors often scramble to obstruct the power of sale proceedings being carried out by the mortgagee-in-possession, even when there is nothing to legitimately complain about regarding the power of sale proceeding (Reichert v. Stanbarr Services Ltd., [2013] O.J. No. 4507).
Ontario motion judges are aware of this mortgagor-tendency and sometimes set down peremptory requirements in order to move obstruction proceedings along toward what is generally an inevitable conclusion against the mortgagor.
The motions judge in Duffin v. NBY Enterprises Inc. [2010] O.J. No. 4841 did precisely that in laying down strict deadlines on the mortgagor to move a blocking motion along.
The mortgagor failed (by 2 days) to pay the costs arising from that blocking motion, and the mortgagor’s action was accordingly dismissed.
The mortgagor brought a motion to another motion judge to extend time. The second motion judge, no doubt actuated by the same experience of power of sale proceedings, gave no relief to the mortgagor.
The Court of Appeal decided that the use of procedural tools such as peremptory orders has the effect of dismissing a matter without a merits hearing contrary to the spirit of Rule 1.04(1).
The second motion judge had jurisdiction under Rule 3.02(1) to extend the time ordered by a previous motion judge.
Motion judges have adjusted to the Court of Appeal instruction on dismissals without a merit-analysis. Goldstein J. considered the Court of Appeal ruling in a follow-up (failure to post costs) motion for dismissal.
Goldstein put the onus squarely upon the party seeking to question a receivership sale, to tender sufficient evidence as to why the earlier ‘peremptory’ order should be relaxed. Failing to so tender leads to dismissal of the application without a merit-inquiry.
Ramos & Ramos Investments Inc. v. Can-Med Pharma Inc., [2016] O.J. No. 4446
