New Issue in Mortgage Enforcement - Changes in the Venue Rules: There’s No Place Like Home
Effective March 31, 2015, the rules of civil procedure have been amended with the specific intention of addressing the question of where to commence a mortgage enforcement proceedings.
Previously, The rules permitted a plaintiff to choose the jurisdiction in which the proceeding was to be commenced. For those of you who had represented debtors, you will have learned that the larger volume law firms had begun to choose preferred jurisdictions in which to focus all of their mortgage enforcement, regardless of where the property in question was situated. It is no secret, that a borrower was most likely to find themselves being sued in either Milton or Hamilton depending on the preference of the creditor. This would apply equally to property situated in Ottawa, Thunder Bay, Sudbury, Toronto or elsewhere.
As of March 31, that practice is over. The rules civil procedure have been amended to add the following subrule:
13.1.01 (3) In the case of an originating process, whether it is brought under Rule 64 (Mortgage Actions) or otherwise, that contains a claim relating to a mortgage, including a claim for payment of a mortgage debt or for possession of a mortgaged property, the proceeding shall be commenced in the county that the regional senior judge of a region in which the property is located, in whole or in part, designates within that region for such claims. O. Reg. 259/14, s. 4.
As a result, any new proceeding that includes ‘a claim relating to a mortgage’, must be brought in a ‘designated centre’. At the same time, the various Regional Senior Justices for each of the 8 judicial regions in Ontario issued amendments to the local practice directions so as to provide for the designated centres. Each of the practice direction employs the same language in effecting the designation:
Pursuant to rule 13.1.01(3) of the Rules of Civil Procedure, which comes into effect on March 31, 2015, ________ or ________ have been designated as the place for commencement of mortgage proceedings for property located anywhere in the __________ Region.
A summary of the designated centres is provided in the following chart:
Central East Region
Barrie or Oshawa
Central South Region
Hamilton, St. Catharines or Kitchener
Central West Region
Brampton, Milton, Orangeville or Owen Sound
North Bay, Parry Sound, Sudbury, Haileybury, Sault St. Marie, Cochrane or Gore Bay
Fort Frances, Thunder Bay or Kenora
London, Windsor, St. Thomas, Chatham, Sarnia, Woodstock, Stratford or Goderich
Several questions arise: (1) if the property is located in, for example, Barrie, can a plaintiff sue in Oshawa, or must it be brought in Barrie (since both Oshawa and Barrie are designated centres)?; (2) what are the boundaries of the regions?; and (3) what is captured by the phrase ‘a claim relating to a mortgage’?
Where to Sue
Based on the wording of the practice direction language, it appears to be permissive. That is, a plaintiff may bring an action in any one of the designated centres in the region in respect of a property located anywhere within that jurisdiction. This leads to the somewhat odd result that a mortgagor and property located in Barrie could be forced to travel to Oshawa to defend an enforcement action. This consequence suggests that the impetus behind the rule change was to manage the workflow at the overburdened court offices, rather than enhancing borrower’s access to justice. By the same measure, the decision to designate only Ottawa for the East region leads to the consequence that a mortgagor resident in Belleville would need to travel to Ottawa to defend an action likely brought by Toronto counsel.
The Boundaries of the Regions
The various regions are defined in regulation to the Courts of Justice Act, at R.R.O. 1990, Reg. 186, which defined the boundaries to the regions as follows:
The territorial districts of Kenora, Rainy River and Thunder Bay.
The territorial districts of Algoma, Cochrane, Manitoulin, Nipissing, Parry Sound, Sudbury and Timiskaming.
1. The counties of Frontenac, Hastings, Lanark, Lennox and Addington, Prince Edward and Renfrew.
2. The united counties of,
i. Leeds and Grenville,
ii. Prescott and Russell, and
iii. Stormont, Dundas and Glengarry.
3. The Regional Municipality of Ottawa-Carleton.
Central East Region
1. The District Municipality of Muskoka.
2. The counties of Haliburton, Northumberland, Peterborough, Simcoe and Victoria.
3. The regional municipalities of Durham and York.
The Municipality of Metropolitan Toronto.
Central West Region
1. The counties of Bruce, Dufferin, Grey and Wellington.
2. The regional municipalities of Halton and Peel.
Central South Region
1. The County of Brant.
2. The regional municipalities of Haldimand-Norfolk, Hamilton-Wentworth, Niagara and Waterloo.
The counties of Elgin, Essex, Huron, Kent, Lambton, Middlesex, Oxford and Perth.
What is ‘a claim relating to a mortgage’?
Unfortunately, the new language of Rule 13.1.01(3) is somewhat less than clear in delineating what actions are in fact captured by the venue rule. The relevant phrase references any originating process that ‘contains a claim relating to a mortgage, including a claim for payment of mortgage debt or for possession of a mortgaged property’.
Clearly, a claim seeking payment or possession is captured. Similarly, a foreclosure action under Rule 64 would be explicitly captured. However, there are numerous matters that could involve a ‘claim relating to a mortgage’ that may not be immediately obvious. A non-exhaustive list is as follows:
(a) a receivership application involving a claim by a mortgagee;
(b) applications under sections 12, 50 or 52 of the Mortgages Act;
(c) an unsecured deficiency claim brought after the sale of the subject property;
(d) a claim on a guarantee, secured by a collateral mortgage;
(e) a construction lien seeking priority over a mortgage.
At this early stage in the promulgation of the new subrule, it remains to be seen how the Courts choose to interpret this venue provision. What should be very clear, however, is that enforcement proceedings cannot be centralized in a single jurisdiction any longer.