Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20230303 DOCKET: C70963

Roberts, Nordheimer and Favreau JJ.A.

BETWEEN

2343680 Ontario Inc., Maria Andrade & Luciano Didimizio Plaintiffs

and

Twisha Talpade and Vineet Talpade Defendants

and

Twisha Talpade and Vineet Talpade Plaintiffs by Counterclaim (Appellants)

and

2343680 Ontario Inc., Maria Andrade, Luciano Didimizio, Jay Parmar and Canada Lend Defendants by Counterclaim (Respondents)

Twisha Talpade and Vineet Talpade, acting in person Melvin I. Rotman and Yovin Jaimangal, for the respondents 2343680 Ontario Inc., Maria Andrade and Luciano Didimizio Amandeep Sidhu, for the respondents Jay Parmar and Canada Lend

Heard: March 1, 2023

On appeal from the order of Justice Vanessa V. Christie of the Superior Court of Justice, dated July 15, 2022, with reasons at 2022 ONSC 4165.

Reasons for Decision

[1] At the beginning of the hearing, the appellants asked for permission to make their submissions in writing rather than orally. The court granted this request and received the appellants’ 13-page written submissions. After reviewing these submissions, the panel advised the parties that the appeal was dismissed with reasons to follow. These are our reasons.

[2] The appellants are the owners of a property on Ambleside Crescent in Markham. The Home Trust Company held a first mortgage of $660,000 on the property. The respondents 2343680 Ontario Inc., Maria Andrade and Luciano Didimizio (the “Mortgagees”) held a second mortgage of $550,000, a third mortgage of $185,000 and a fourth mortgage of $50,000 on the property. In 2017, the appellants defaulted on the three mortgages held by the Mortgagees. In 2018, the appellants defaulted on the Home Trust mortgage. The Mortgagees paid off the Home Trust mortgage and brought an action against the appellants to enforce all mortgages. The appellants counterclaimed, adding as defendants Jay Parmar and Canada Lend, who had helped broker the mortgages with the Mortgagees. In their counterclaim, the appellants sought damages for, amongst other matters, what they claimed were improper efforts by the Mortgagees to take possession of the property.

[3] It is not necessary to review all the procedural steps in the litigation. Ultimately, the parties, while represented by counsel, consented to an order dismissing the appellants’ counterclaim, directing that the determination of the amounts the appellants owed under the mortgages be decided as a reference in writing, and allowing the Mortgagees to obtain a writ of possession for the property two weeks following the issuance of the reference decision. After receiving written submissions and convening two attendances to obtain clarifications, the motion judge found that the appellants owed $1,876,979.06 on the second mortgage and $447,128.97 on the third mortgage. She also found that the fourth mortgage of $50,000 had already been paid off. In a subsequent endorsement, the motion judge determined that the per diem interest amounts on the second and third mortgages are $667.99 and $183.62 respectively.

[4] The appellants submit that their appeal should be allowed because the motion judge was biased and prejudiced, the hearing was procedurally unfair, and the motion judge erred in her calculation of the outstanding amounts owed under the mortgages and in failing to award them damages. The appellants also seek to renew claims and allegations in their dismissed counterclaim and appeal a costs order made in favour of the respondents Jay Parmar and Canada Lend. We do not accept any of these grounds of appeal.

[5] There is nothing in the record to suggest that the motion judge was biased or prejudiced. In the normal course, the issue of bias should be raised before the judge against whom the claim is made and not for the first time on appeal: Palkowski v. Ivancic, 2009 ONCA 705, 100 O.R. (3d) 89, at para. 74. The appellants did not do so. In any event, while the appellants disagree with the motion judge’s decision, that is not a basis for finding that she was biased or prejudiced. Notably, the motion judge made significant reductions to the amounts sought by the Mortgagees and she did not award costs to the Mortgagees because of the deficiencies in their materials and calculations. This makes clear that the motion judge carefully considered the issues before her and showed no bias or prejudice.

[6] There is also nothing in the record to support a finding that the way in which the motion judge decided the issues before her was procedurally unfair. At the time the motion judge made the consent order and decided the reference, the appellants were represented by legal counsel. On their behalf, counsel agreed to the process followed by the motion judge to decide the amounts owing under the mortgages. The appellants had an opportunity to make submissions and to contest the positions put forward by the Mortgagees. In fact, while the parties agreed that the reference would proceed in writing, the motion judge nevertheless held two brief hearings with counsel for the parties for the purpose of clarifying some issues before making her decision. The appellants consented to the process followed by the motion judge and it was clearly fair. While the appellants now baldly complain about their lawyer, no issues about their representation or their consent were raised before the motion judge.

[7] We see no errors in the motion judge’s determination of the amounts owing under the mortgages. These are findings of fact. This court will only interfere with the motion judge’s factual findings if she made a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 7, 10, and 18. The appellants have not identified any errors made by the motion judge. They essentially complain that the amounts they owe under the mortgages are too high. However, these amounts were based on the terms of the mortgages, the motion judge’s determination that the Mortgagees had paid out the Home Trust mortgage and her careful review of all the parties’ evidence.

[8] The appellants also appear to argue that the motion judge erred in not awarding them compensation for the Mortgagees’ conduct in seeking to take possession of their property. There is no merit to this claim. The motion judge made a finding that the appellants failed to provide evidence to support their claim for compensation. In any event, the appellants agreed to the dismissal of their counterclaim and, in the circumstances, there was no basis for the motion judge to award damages to the appellants.

[9] Finally, we see no basis to interfere with the costs the motion judge awarded to Jay Parmar and Canada Lend.

[10] The appeal is dismissed. The Mortgagees are entitled to costs of $6,500, inclusive of disbursements and HST. Jay Parmar and Canada Lend are also entitled to costs of $6,500 inclusive of disbursements and HST.

“L.B. Roberts J.A.”

“I.V.B. Nordheimer J.A.”

“L. Favreau J.A.”