Court of Appeal for Ontario

Citation: Slade v. Tanfi Limited, 2016 ONCA 326 Date: 20160502 Docket: C60028

Before: Doherty, MacPherson and Miller JJ.A.

Between:

James Harold Frederick Slade and Nancy Jean Slade Applicants (Appellants)

and

Tanfi Limited Respondent (Respondent)

Counsel:

James Slade, in person Syed Abid Hussain, for the respondent

Heard: April 29, 2016

On appeal from the judgment of Justice Frederick L. Myers of the Superior Court of Justice, dated February 3, 2015.

Endorsement

[1] The appellants James and Nancy Slade appeal from the summary judgment of Myers J. of the Superior Court of Justice dated February 3, 2015 dismissing the appellants’ counterclaim against the respondent Tanfi Limited. As a result of the dismissal of the counterclaim, the motion judge granted judgment to the respondent on two mortgages for $979,713.02.

[2] The principal ground of appeal is that the motion judge’s summary judgment on the appellant’s counterclaim is inconsistent with a previous judgment by Stinson J. dismissing the respondent’s motion for summary judgment in the original action (before the appellants made their counterclaim). Stinson J. refused to grant summary judgment on the basis that there were “a number of interconnected issues that, in my view, required a detailed examination and analysis of the factual matrix that can only take place at a trial.”

[3] More than three years later, the respondent brought its motion for summary judgment on the counterclaim. By then, as the motion judge put it, “the action had fallen into a procedural quagmire.” As well, the intervening decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, had changed the law relating to summary judgments so that, as expressed by the motion judge, “the emphasis is now on providing the most efficient and affordable outcome available to the parties in the interests of justice.”

[4] Against this backdrop, the motion judge decided to conduct a mini-trial on a single issue – why the respondent did not make two $35,000 advances after the mortgage had gone into default (in fact, the appellants never made even a single payment on the mortgage). In the mini-trial, the parties offered competing explanations on this issue: the appellants said that these amounts were supposed to be advanced to cover the interest payments on the mortgage; the respondent’s position was that it refused to make the advances because the appellants had defaulted on their mortgage payments. The motion judge heard the evidence and resolved this issue in the respondent’s favour. In our view, he was entitled to do this on the record before him.

[5] In reaching this decision, we do not think that the motion judge violated the principle of res judicata. Although it is probably unusual to have two motions for summary judgment in the same case, there is no reason in logic or in policy to preclude such a possibility in an appropriate case. Here, the pleadings changed between the two motions and so did the law relating to summary judgment. This combination of changes meant that the motion judge’s approach was not inconsistent with Stinson J.’s previous order. In effect, the motion/mini-trial in 2015 gave effect to Stinson J.’s order of a trial in 2012.

[6] The appellants raise other issues, including alleged bias on the part of the motion judge, factual errors by the motion judge, and potential duplication because there is still a counterclaim against a new and different party, Frank Manzo. It is not necessary to address these issues; there is simply no merit in any of them.

[7] It is time for the respondent to receive the money the appellants owe it. The appeal is dismissed. The respondent is entitled to its costs of the appeal which, in accordance with the terms of the mortgage, we fix on a substantial indemnity basis at $25,000, inclusive of disbursements and HST.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“B.W. Miller J.A.”