Michalik v. Resurrection Credit Union Limited, 2012 ONCA 898

ENDORSEMENT

1The appellant appeals the March 21, 2011 order of Spence J. striking her claim under r. 21.01(b) or 21.03(d) as disclosing no reasonable cause of action or being frivolous, without leave to amend.

2The appellant, who has a 90 per cent beneficial interest in the subject property, 12 Spencer Avenue, Toronto, sought to sue the respondent mortgagee for improvident sale of the subject property and for damage to her personal effects at the property.

3In our view, the motion judge correctly dismissed the appellant’s claim and we accordingly dismiss this appeal.

4The appellant filed no responding material and the record is totally inadequate. However, putting the best light possible to the appellant’s case, the appellant’s son, Leslaw Chlipala, holds legal title to the property in trust for the appellant to the extent of her beneficial interest. The respondent is not in possession of the property and we have been shown nothing that warrants the departure from the general rule that the trustee must sue. Standing to assert the cause of action accordingly lies with the son as trustee and the son has in fact sued the respondent mortgagee for improvident sale. Should the son, qua trustee, breach his duties to the appellant, her remedy is to claim against him personally.

5We also agree with the motion judge that, as pled, the appellant’s claim for damage to or loss of her personal property not removed from the subject property at the time of sale is statute barred. The trustee had received an eviction notice. Moreover, the appellant was well aware of the pending sale from prior court proceedings. In the circumstances, we see no basis for interfering with the motion judge’s exercise of discretion not to grant leave to amend.

6The appeal is dismissed, with costs fixed at $5,000, inclusive of disbursements and applicable taxes.