Court of Appeal for Ontario

Date: 20210201 Docket: C67262

Judges: Strathy C.J.O., Zarnett and Sossin JJ.A.

Between:

Bank of Montreal Plaintiff (Respondent)

And

Peter Georgakopoulos and Anka Georgakopoulos Defendants (Appellants)

Counsel: Peter Georgakopoulos and Anka Georgakopoulos, acting in person Christopher J. Staples, for the respondent

Heard: January 25, 2021 by video conference

On appeal from the judgment of Justice Jane Ferguson of the Superior Court of Justice, dated June 11, 2019, and from the costs order, dated July 26, 2019.

Reasons for Decision

[1] The appellants appeal from the judgment that was granted against them on a motion for summary judgment that was brought by the respondent (the “Bank”).

[2] The judgment ordered the appellants to pay the Bank $342,316.74, representing advances the appellants had received from the Bank and interest thereon. It declared an equitable mortgage in favour of the Bank over property owned by the appellant, Peter Georgakopoulos (“Peter”), described as 300 Front Street West, Suite 4501, Toronto (the “Toronto Property”), to secure these amounts. It ordered Peter to pay a further sum of $28,072.89 to the Bank, representing a credit card debt, and interest thereon. And it dismissed the appellants’ counterclaim.

[3] On appeal, the appellants raise what are essentially four arguments. First, they argue that the motion judge lacked jurisdiction to deal with any aspect of the Bank’s claims. Second, they argue that the evidence proffered by the Bank was wrongly accepted by the motion judge and did not justify summary judgment. Third, they argue that the motion judge lacked the authority to declare an equitable charge against the Toronto Property, given the nature of Peter’s title to it. Fourth, they argue that their counterclaim was improperly dismissed.

[4] We do not accept the appellants’ arguments.

[5] As to jurisdiction, the Bank’s action was for (i) repayment of amounts it alleged had been drawn by the appellants under a line of credit facility, after the facility was supposed to have been cancelled and after the security the appellants had provided for loans under the Line of Credit Agreement had been discharged; (ii) an equitable mortgage to secure those amounts; and (iii) payment by Peter of a credit card debt. The Superior Court of Justice has subject matter jurisdiction over all those claims. As this court stated in 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., [1972] 2 O.R. 280 (C.A.), at 282, except where there is a specific provision to the contrary, the Superior Court’s jurisdiction is unrestricted in substantive law in civil matters. Nor is there merit to the appellants’ argument that there was an absence of personal jurisdiction over them, or that they have sovereign immunity.

[6] As to the evidence, we are not persuaded that the motion judge committed any reversible error in concluding that there was no genuine issue requiring a trial. A motion judge’s conclusion that there is no genuine issue requiring a trial is one of mixed fact and law which, in the absence of extricable legal error, will only be disturbed on appeal for palpable and overriding error: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 80-84.

[7] Although the appellants say the Bank’s evidence was inadmissible hearsay, the respondent’s primary evidence was that of a Bank employee who swore that this matter was within her responsibility, and that the facts she deposed to were within her personal knowledge or determined from the face of documents exhibited to her affidavit. [1] The motion judge was not legally required to disregard this evidence.

[8] As to the sufficiency of the evidence, it is important to consider both what the Bank’s evidence was, and what other evidence there was.

[9] The Bank’s evidence was that a Line of Credit Agreement had been entered into between the Bank and the appellants in 2008. It provided for a demand credit facility of up to $295,000, secured by a mortgage on the appellants’ property in Oakville. The appellants repaid the loan on August 6, 2015, out of the proceeds of sale of the Oakville property, and the mortgage on the Oakville property was discharged. The credit facility was supposed to be blocked by the Bank, so there could be no further advances, but by mistake it was not. The appellants then drew another $295,000, which they were not authorized to do, and which they did not repay.

[10] The Bank’s evidence was also that it never intended to lend funds to the appellants on an unsecured basis, and that the appellants had no reason to believe that the Bank would do so, given the terms of the Line of Credit Agreement and the fact that, earlier in 2015, the appellants had approached the Bank for mortgage financing for a new property. In July 2015, Peter purchased the Toronto Property, and, after August 6, 2015, when the unauthorized drawings from the Bank took place, paid off another lender’s mortgage on that Property. The motion judge found the Bank’s funds were used to pay the other mortgage.

[11] Finally, the Bank’s evidence was that Peter had not repaid his credit card debt in a sum exceeding $28,000.

[12] As for evidence to the contrary, the motion judge found there to be none. She stated that the appellants had “proffered no evidence contradicting the evidence of [the Bank] or the advances of money received by them”.

[13] It was accordingly open to the motion judge to conclude that there was no genuine issue requiring a trial and to grant summary judgment for repayment of the amounts advanced and the credit card debt. Her conclusion is not tainted by any palpable and overriding error.

[14] We also find no reversible error in the motion judge’s conclusion that there was no genuine issue requiring a trial as to whether to grant a declaration of an equitable mortgage. She adverted to the correct legal test for granting such relief as set out by this court in Elias Markets Ltd. (Re) (2006), 274 D.L.R. (4th) 166 (Ont. C.A.), at paras. 63-65. It was open to her on the Bank’s evidence to infer a common intention that advances would be secured against real property, and to consider the Toronto Property as coming within that common intention, given the prior dealings about mortgage financing for a new property and Peter’s use of the funds drawn from the Bank to pay down a mortgage on the newly acquired Toronto Property. As the motion judge noted, the appellants had provided no “coherent evidence” in response.

[15] Finally, we reject the appellants’ submission that there is no jurisdiction to declare an equitable charge over the Toronto Property, given that Peter is the owner of this property as verified by title records. The power to grant an equitable charge is well established: see Elias. The mortgagor or chargor under such a charge will necessarily be the title holder.

[16] The motion judge also did not err in finding that there was no genuine issue requiring a trial with respect to whether the counterclaim should be dismissed. The motion judge found that no evidence in support of it had been proffered.

[17] Shortly prior to the hearing of the appeal, the appellants submitted an affidavit and a document entitled Bills of Equity, which were accepted for filing on the basis that it would be up to the panel to decide whether to admit them. The Bills of Equity are irrelevant. The affidavit consists essentially of argument and does not meet the test for admission of fresh evidence.

[18] The appeal is accordingly dismissed. The Bank is entitled to its costs of the appeal fixed in the sum of $7,000, inclusive of disbursements and applicable taxes.

“G.R. Strathy C.J.O.” “B. Zarnett J.A.” “Sossin J.A.”

Footnote

[1] She also said that any information derived from others was believed and the source of it disclosed, although no such information was specifically identified in the affidavit.