lack of clear precedent for her claim. She obtained all of the damages she sought against the defendants.
 I conclude that Jane is entitled to recover costs on a partial indemnity basis, and order the defendants to pay her $5,000
for fees, inclusive of HST, and $211.41 for disbursements, for
a total of $5, 241.41.
Comfort Capital Inc. et al. v. Yeretsian et al.
[Indexed as: Comfort Capital Inc. v. Yeretsian]
2018 ONSC 5040
Superior Court of Justice, Dunphy J. August 24, 2018
Mortgages — Interest — Mortgagees not entitled to payment of three
months’ interest under s. 17 of Mortgages Act where mortgaged property
was sold by court-appointed receiver — Mortgages Act, R.S.O. 1990,
c. M.40, s. 17.
The applicants held first mortgage security over six properties, securing a number
of loans that had not been repaid when they became due. They applied successfully
for the appointment of a receiver pursuant to s. 243(1) of the Bankruptcy and
Insolvency Act, R.S.C. 1985, c. B-3 and s. 101 of the Courts of Justice Act, R.S.O.
1990, c. C.43. The court approved the sale of four of the properties. After the
properties were sold, the applicants brought an application for an order for the
payment of three months’ interest pursuant to s. 17 of the Mortgages Act or,
alternatively, under the terms of their mortgages.
Held, the application should be dismissed.
Section 17 of the Mortgages Act does not apply to a payment of proceeds of sale
to an entitled secured creditor by a court-appointed receiver. A receiver is not
a “person entitled to make such payment” under s. 17. A court-appointed receiver
is not the agent of the debtor or any subsequent mortgagee. The applicants were
not entitled to payment of three months’ interest under s. 17 of the Mortgages Act.
58 Cardill Inc. v. Rathcliffe Holdings Ltd.,  O.J. No. 4108, 2018 ONCA
672, 62 C.B.R. (6th) 173, 93 R.P.R. (5th) 1, 294 A.C. W.S. (3d) 852, affg  O.J.
No. 5900, 2017 ONSC 6828, 84 R.P.R. (5th) 44, 55 C.B.R. (6th) 230, 285 A.C.W.S.
(3d) 635 (S.C.J.); O’Shanter Development Co. v. Gentra Canada Investments Inc.
(1995), 25 O.R. (3d) 188,  O.J. No. 2546, 84 O.A.C. 334, 47 R.P.R. (2d) 24,
57 A.C. W.S. (3d) 355 (Div. Ct.), consd
Other cases referred to
Peat Marwick Ltd. v. Consumers’ Gas Co. (1980), 29 O.R. (2d) 336,  O.J.
No. 3669, 113 D.L.R. (3d) 754, 11 B.L.R. 114, 35 C.B.R. (N.S.) 1, 1 P.P.S.A.C. 149,
1980 CanLII 1850, 4 A.C. W.S. (2d) 34 (C.A.)
Statutes referred to
Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 243(1)