Fisher v. Soroka, 2022 ONCA 442

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220606 DOCKET: C69781, C69782 & C69783

van Rensburg, Harvison Young and Copeland JJ.A.

DOCKET: C69781 BETWEEN Stirling Fisher and Michele Neumayer Plaintiffs (Respondents) and William Soroka Defendant (Appellant)

DOCKET: C69782 AND BETWEEN Olympia Trust Company as Trustee for Self-Directed Retirement Savings Plan No. 98268 and Olympia Trust Company as Trustee for Self-Directed Retirement Savings Plan No. 97662 Plaintiffs (Respondents) and William Soroka and William Joseph John Soroka Defendant (Appellant)

DOCKET: C69783 AND BETWEEN Olympia Trust Company as Trustee for the Self-Directed Retirement Savings Plan No. 97662 and Stirling Fisher Plaintiffs (Respondents) and William Soroka Defendant (Appellant)

Counsel: David M. Steele and Daniel W. Veinot, for the appellant Steven D. Gadbois, for the respondents

Heard: May 20, 2022

On appeal from the orders of Justice Michael R. Gibson of the Superior Court of Justice, dated July 15, 2021 (C69782 and C69783) and October 5, 2021 (C69781), with reasons reported at 2021 ONSC 4981.

Reasons for Decision

[1]

Overview

The appellant appeals from the decision of the motion judge dismissing his motions to set aside foreclosure judgments in three mortgage foreclosure actions, and to set aside the noting in default in each action that led to the judgments.

2The appellant was personally served with the claims as of September 11, 2014. He did not defend the claims or convert them to judicial sales. The three default judgements were obtained in December 2014. The judgments were registered on title of the respective properties on April 20, 2018. The appellant moved to set aside the default judgments by notices of motion dated October 23, 2019, approximately five years after the judgments were granted, and a year-and-a-half after they were registered on title.

3We do not accept any of the appellant’s submissions.

[4]

Analysis

The appellant’s first submission is that the motion judge applied the wrong legal analysis to the extent he used the test for setting aside a default judgment, rather than the analysis for granting relief against forfeiture. We disagree. The motion judge considered the legal analyses applicable to both setting aside a default judgment and granting relief against forfeiture. He cited leading authorities of this court regarding both issues. Both tests were relevant in the circumstances.

5In any event, a significant factor in both tests is whether the motion was brought promptly and the moving party’s explanation for the delay: Winters v. Hunking, 2017 ONCA 909, at paras. 12-14; Intact Insurance Co. v. Kisel, 2015 ONCA 205, 125 O.R. (3d) 365, at paras. 12-14; and Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, at paras. 47-50. We see no palpable and overriding error in the findings of the motion judge on the record before him that the motions to set aside were not made with reasonable promptness, and that the appellant’s explanation for the delay was neither plausible nor credible.

6The appellant’s second submission is that the motion judge erred in considering whether he had an arguable defence on the merits. The appellant submits that in the context of setting aside a default judgment in a foreclosure action, a “defence” does not mean defeating a claim because a defendant could convert a foreclosure action to a judicial sale of the mortgaged property.

7As the circumstances before the court involved motions both to set aside default judgments and to seek relief from foreclosure, we see no error in the motion judge’s consideration of whether the appellant had an arguable defence on the merits. But in any event, the appellant never sought to convert the claims to judicial sales until he brought the motions to set aside the judgments in October 2019, despite having notice of the claims since mid-September 2014.

8The motion judge properly considered the overall justice of the case in reaching the conclusion that the motions should be dismissed. The jurisprudence in relation to the legal analysis to be applied to motions seeking relief from foreclosure or setting aside a default judgment is clear that beyond considering the enumerated factors, a court must consider the overall justice of the case in all of the circumstances: Winters, at para. 10. The motion judge expressly recognized this obligation at paras. 6 and 9 of his reasons. He made a clear finding, grounded in the evidence, that the justice of the cases did not support granting the relief sought by the appellant. After making significant adverse credibility findings against the appellant, the motion judge stated his conclusion as follows:

[The appellant’s] submissions on this motion are not credible. I agree with the assertion of [the respondent’s] counsel that the gist of [the appellant’s] motion is that while the properties had little or no equity as of October 2014, and he would have received little to nothing if the properties were sold by judicial sale, he now wants the court to give him the properties back, with their present value and equity, at 2014 prices. This would amount to a substantial windfall for [the appellant]. Balancing the potential prejudice to the [appellant] should the motion be dismissed, with the potential prejudice to [the respondent] should the motion be allowed, [the appellant] has failed to satisfy me that the equities weigh in his favour. The overall integrity of the administration of justice would not be enhanced in granting the motion.

We see no basis to interfere with this conclusion by the motion judge.

[9]

Disposition

The appeal is dismissed with costs of $16,000, all inclusive, payable to the respondents.