Background
In April 2023, SCIV Inc. registered a one-year, $130,000 mortgage at 11.5% annual interest against a Mississauga condominium unit owned by Patrycja Pilaszek. Ms. Pilaszek was represented by independent legal counsel at the time of the transaction and agreed to standard charge terms permitting SCIV to enter, lease, or sell the property after 15 days of default. She defaulted in March 2024, the charge matured the following month, and no renewal or extension was offered. SCIV served a notice of sale in April 2024 and issued a statement of claim in June 2024.
Following an exchange of pleadings and a court-supervised timetable spanning nearly two years, SCIV brought a motion for summary judgment scheduled for March 24, 2026. One week before the hearing, Ms. Pilaszek dismissed her counsel and gave notice she would represent herself. At the motion she sought an adjournment — which the motion judge denied given the 18-month history of the proceeding — and argued she had been defrauded by a third party, Mr. Monasteridis, who allegedly induced her to invest in a non-existent pre-construction property and directed the loan proceeds to himself. The motion judge found no evidence connecting SCIV to any fraud, granted summary judgment for SCIV, dismissed Ms. Pilaszek’s counterclaim, and awarded costs on a full indemnity basis in light of unfounded fraud allegations and threats of violence made by persons associated with Ms. Pilaszek.
Ms. Pilaszek filed a notice of appeal and moved before Thorburn J.A. (as motion judge in the Court of Appeal) for a stay of the judgment and writ of possession pending appeal under r. 63.02(1)(b) of the Rules of Civil Procedure.
The Court’s Holding
Applying the three-part RJR-Macdonald test, Thorburn J.A. denied the stay on all three grounds. On the first branch, the court found no serious issue to be tried. Ms. Pilaszek raised on appeal a new argument — that the amount advanced was approximately $111,000, not $130,000 — which had never been contested before the motion judge. The court also found no reviewable error in the motion judge’s weighing of the evidence on the fraud allegations or in her refusal of the adjournment request, noting that bald allegations unsupported by evidence do not create a genuine issue for trial under Hryniak v. Mauldin, 2014 SCC 7. The full-indemnity costs order was equally unassailable given the evidence of harassment and intimidation.
On the second branch, the court held that loss of possession upon mortgage default is a “bargained-for remedy” that Ms. Pilaszek had contractually accepted with the benefit of counsel. Treating that contracted-for consequence as irreparable harm, without additional evidence of permanent and non-compensable prejudice, would allow a moving party to satisfy the irreparable harm element in virtually every residential mortgage enforcement proceeding — a result inconsistent with the borrower’s own agreement.
On the third branch, the balance of convenience favoured SCIV. The lender had been deprived of the benefit of its security for nearly two years, its recovery depended on the proceeds of sale of the mortgaged asset, and the interests of justice did not support prolonging a two-year default on grounds disclosing no serious issue while SCIV bore the ongoing cost of delay.
Key Takeaways
- A mortgagor who contractually agreed — with independent legal counsel — to enforcement on default cannot invoke the resulting loss of possession as “irreparable harm” to obtain a stay; doing so would effectively neutralize the irreparable harm requirement in residential mortgage enforcement cases.
- New arguments not raised before the motion judge (here, a dispute over the quantum advanced) will not constitute a “serious issue” on appeal in the stay analysis.
- Unsupported fraud allegations against a lender, without evidence linking the lender to the alleged scheme, will not defeat a summary judgment motion; summary judgment is well-suited to enforcing liquidated creditor claims (citing 2275518 Ontario Inc. v. Toronto Dominion Bank, 2024 ONCA 343).
- A motion judge has broad discretion to deny an adjournment where the proceeding has been outstanding for 18 months, examinations are complete, and counsel was discharged one week before the scheduled hearing.
- Full indemnity costs may be awarded where a party advances baseless fraud allegations and is associated with threats and intimidation directed at the opposing party.
Why It Matters
This decision reinforces the difficulty mortgage borrowers face in staying enforcement proceedings pending appeal in Ontario. By holding that contractually accepted enforcement consequences cannot themselves constitute irreparable harm, the court aligns with recent authority (Park v. Manulife Bank of Canada, 2025 ONCA 815) and signals that the stay mechanism will not routinely be available to delay a lender’s recovery simply because the mortgaged property is the borrower’s residence.
The decision is also a practical reminder for self-represented litigants and their former counsel: arguments not advanced at the summary judgment stage are unlikely to be treated as raising a “serious issue” on appeal, and last-minute changes of representation will not automatically entitle a party to an adjournment of a long-scheduled motion.