Court File and Parties

CITATION: The Bank of Nova Scotia v. Lai-Ping Lee, 2013 ONSC 6698

DIVISIONAL COURT FILE NO.: DC-13-00000419

DATE: 20131029

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: The Bank of Nova Scotia, Plaintiff/Respondent

AND:

Lai-Ping Lee also known as Lai Ping Lee, Defendant/Applicant

BEFORE: Mr. Justice H.J. Wilton-Siegel J.

COUNSEL: Lai Ping: Lee, Self-Represented

Barbara Damm, for the Plaintiff/Respondent

HEARD: October 25, 2013

Endorsement

[1] The applicant Lai Ping: Lee moves for a stay of enforcement pending her appeal of the order of Master Dash dated August 20, 2013 (the “Order”). The Order dismissed the applicant’s motion to set aside a default judgment dated April 29, 2013 granting possession of the applicant’s property to the respondent mortgagee. In its statement of claim, the respondent claims possession based on default in payment of the mortgage.

[2] As a preliminary matter, the applicant raised a number of issues pertaining to the Court’s jurisdiction in this matter. I am satisfied that the Court has jurisdiction to hear this motion. The Court endeavoured to address the applicant’s issues in the hearing and there is, therefore, no need to address these issues further in this endorsement.

[3] I have sympathy for the applicant’s personal circumstances. However, the Court must limit the inquiry on this motion to the three-part test for an injunction, being the test for a stay in the present circumstances.

[4] The applicant is able to establish the second requirement of the test – irreparable harm. She will lose possession of her home if the stay is denied.

[5] The principal issue on this motion is whether there is a serious issue to be tried which, in this case, I understand to require demonstration of a ground of appeal that meets the triable issue standard.

[6] In considering whether to exercise its discretion to set aside a default judgment, a court should address, among other things, any explanation for the default, the timeliness of the affected party’s response upon hearing of the default judgment, and the merits of the proposed defence.

[7] In this case, there is no explanation for the default judgment. The applicant received the statement of claim, and returned it to the respondent the day after it was served on her with handwriting on the face page. She then failed to file a statement of defence. She did, however, move promptly to serve a notice of appeal after receiving the default judgment. The real issue on this motion is the strength of her proposed defence.

[8] The applicant does not deny that she signed the mortgage or that she owes monies under it, although the actual amount may remain in dispute. She claims, however, that the mortgage was paid off in September 2012. The uncontradicted evidence is that she presented two cheques for this purpose that were dishonoured because the account upon which they were drawn had been closed. Unfortunately, the applicant’s submission that the cheques discharged her debt to the respondent because they were negotiable instruments is legally incorrect.

[9] The applicant further suggests that the mortgage was, or also included, a promissory note which has been assigned to an unidentified party. She requires advice as to the identity of the assignee before paying the mortgage. However, the evidence on the record evidences neither a promissory note nor an assignment. The respondent remains the mortgagee on title to the applicant’s property. Any securitization arrangements of the respondent’s mortgage portfolio, the existence of which has not been established, would in any event have no impact on the validity of the mortgage.

[10] The respondent has provided a copy of the mortgage, as filed on title to the property, bearing the applicant’s signature. The applicant also says that she is entitled to see the original copy of the mortgage with her “inked” signature. She submits that the only person who can take her to court is the person who signed the mortgage on behalf of the respondent, or failing that, loaned her the money. There is no authority for these positions in the law in the circumstances of this case where a party acknowledges that she signed a mortgage, copies of which are in the record.

[11] The applicant also says she is entitled to receive back the originals of the dishonoured cheques. There is also no right to have such cheques returned, if the respondent wishes to keep them as evidence.

[12] Based on the foregoing, I conclude that the applicant is unable to satisfy the first requirement for a stay – the demonstration of a triable issue on the appeal.

[13] I also think the balance of convenience favours the respondent in this case. In the applicant’s favour is the fact that the evidence of value respecting the property suggests that the respondent is secured over the foreseeable future. While it may be true that the applicant is eroding her own equity in the property by bringing this appeal, I do not think that I can conclude on this ground alone that the balance of convenience favours the respondent. However, given the absence of any merit to the applicant’s appeal and the fact that the applicant has put her property up for sale on her own, the Court must also conclude that the balance of convenience rests with denial of a stay of enforcement of the Order.

[14] Accordingly, the motion must be dismissed. An order shall issue in the form attached.

[15] The respondent seeks costs of $4,858.44 as outlined in its costs outline submitted to the Court and the applicant. The applicant shall have thirty days to provide any written submissions she may choose, not exceeding five pages, addressing solely the issue of costs.

Wilton-Siegel J.

Date: October 29, 2013