COURT FILE NO.: 206/09
DATE: 20090629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
J.A. MACFARLANE ENGINEERING COMPANY LIMITED
Plaintiff
- and -
GAETANA CHETTI and JOSEPH CHETTI and KENNETH JAMES
Bruce R. Jaeger, for the Plaintiff
Anjali Mankotta, for the Defendant
HEARD at Toronto: June 23, 2009
JANET WILSON J.:
[1] The defendant Gaetana Chetti (“Gaetana”) brings this motion for leave to appeal the decision of Lederer J. dated January 27, 2009 awarding partial summary judgment in favour of the plaintiff in the amount of $985,634.54.
[2] Gaetana alleges that the motions court judge erred as he:
(i) concluded that the plaintiff could seek to enforce a claim for partial summary judgment based upon alternative relief claimed in the Statement of Claim, without electing to abandon the claim against Gaetana for the entire mortgage debt outstanding;
(ii) incorrectly applied rule 20.08 of the Rules of Civil Procedure in the facts of this case.
[3] The plaintiff is the mortgagee for a mortgage in the amount of $1,800,000.00.
[4] The plaintiff had negotiated the mortgage with the defendant Joseph Chetti believing Joseph had the approval and participation of his wife Gaetana. Gaetana is the owner of the property upon which the mortgage is registered. That property is the home where she and her husband Joseph Chetti reside.
[5] After default, the plaintiff mortgagee moved for summary judgment against the defendants.
[6] In her affidavit sworn in response to the plaintiff’s motion, Gaetana swore that “I have no knowledge of the goings on between my husband and the principal of J.A. MacFarlane, Mr. Joseph Gottdenker” and that she was unaware of the existence of the mortgage. This was surprising news to the plaintiff.
[7] The plaintiff amended the Statement of Claim when these allegations emerged. The plaintiff added the former solicitor of the defendants as a party and a claim for fraud and misrepresentation against Gaetana and her husband.
[8] The plaintiff also claims alternative relief in the amount of $985,634.54 against Gaetana based upon unjust enrichment and equitable subrogation.
[9] The partial summary judgment granted against Gaetana is founded upon the alternative claims. The motions judge granted the partial summary judgment based upon the amounts paid from the mortgage funds to discharge existing debts registered against the matrimonial home, registered in the name of Gaetana.
[10] The crux of the judge’s finding in the motion is outlined at para. 14 of his reasons:
To understand the import of this motion, it is necessary to recognize that the plaintiff advanced money secured by the mortgage. Some of these funds were utilized to pay off a pre-existing mortgage held by the Royal Bank of Canada ($885,127.90), some were paid to Canada Customs and Revenue Agency ($52,200.14), some to the City of Vaughan Tax Department ($43,039.00) and, still more, to Lumbermen’s Credit Services in respect of an outstanding Construction Lien ($267.50). Each of these amounts satisfied a claim, charge or lien against the land. There is no dispute regarding the fact that Gaetana Chetti, as the registered owner of the property, received the benefit of at least these amounts which total $985,634.54.
[11] The defendant purports to argue that granting partial summary judgment constitutes an election by the plaintiff, and that the plaintiff had elected to accept the sum of $985,634.54 as satisfaction of the entire mortgage debt against Gaetana.
[12] The motions judge disagreed with this argument and so do I.
[13] The motions judge concluded in his comprehensive reasons, that by granting partial summary judgment based upon the alternative relief claimed, the plaintiff was not electing this remedy, and therefore did not give up its claim against Gaetana for payment of the entire outstanding mortgage debt.
[14] I agree with the careful analysis of the motions judge. Granting partial summary judgment is not an election by the plaintiff. Such a result would be absurd. The motions judge correctly applied rule and concluded that there is no genuine issue for trial with respect to the amount of $985,634.54, and granted partial summary judgment accordingly. He stayed execution of the judgment, but required the plaintiff to pay interest on $985,634.54 at the rate stipulated by the Courts of Justice Act, R.S.O. 1990, c. C.43. Ordering the stay with terms was reasonable in the circumstances. I note that the interest rate to be paid is considerably less than the rate of interest stipulated in the mortgage, and is advantageous to Gaetana.
[15] There is no basis to doubt the correctness of the decision, there is no matter involving issues of public importance that should engage the attention of the Divisional Court, and there are no conflicting decisions on this issue. Neither Rule 62.02(4)(a) or (b) are engaged on the facts of this case.
Costs
[16] The defendant seeks leave to appeal the award of costs.
[17] Leave to appeal an award of costs is only granted in the rarest of circumstances: McNaughton Automotive Ltd. v. Co-Operators General Insurance Co., 2008 ONCA 597 at paras. 24-27. There are no extraordinary grounds which indicate leave should be granted in this case. In any event, it appears that the discretionary order of costs in the amount of $12,000.00 as ordered by the learned motions judge is entirely reasonable, and within reasonable expectations of the losing party (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291).
[18] If the parties are unable to agree on the costs of this motion, they may provide brief written submissions within fourteen (14) days of release of this decision. The plaintiff shall file consolidated materials with respect to costs including both parties’ submissions.
JANET WILSON J.
Date of Release: June 29, 2009.
COURT FILE NO.: 206/09
DATE: 20090629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
J.A. MACFARLANE ENGINEERING COMPANY LIMITED
Plaintiff
- and -
GAETANA CHETTI and JOSEPH CHETTI and KENNETH JAMES
REASONS FOR JUDGMENT
JANET WILSON J.
Date of Release: June 29, 2009.