Citation and Court Information
CITATION: Lu v. The Toronto-Dominion Bank, 2014 ONSC 7524
DIVISIONAL COURT FILE NO.: DC-13-135-00
DATE: 20141020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Hambly, D. Brown and Gilmore JJ.
BETWEEN:
Show Fong Lu Appellant (Defendant)
– and –
The Toronto-Dominion Bank Respondent (Plaintiff)
Show Fong Lu, Appellant in person
J. Kukla, for the Respondent, The Toronto-Dominion Bank
HEARD: October 20, 2014
REASONS FOR JUDGMENT
Hambly J. (delivered orally)
[1] Show Fong Lu (“Lu”) owned houses in Windsor and Wallaceburg. Both houses were subject to mortgages to the Toronto Dominion Bank. She defaulted on both mortgages. Justice Gray granted the bank a judgment for $78, 905.98 in relation to the Wallaceburg house in Action No. 7179 on August 1, 2012. The Bank sold it under power of sale. There was a shortfall and the Bank issued a writ of seizure and sale.
[2] The Bank also commenced Action No. 3049 against Lu in relation to the Windsor property. Lu brought a motion in this action in which she sought time to bring the payments up to date. Justice Murray dismissed this motion on July 25, 2013.
[3] Lu then commenced a Notice of Application No. 4540/13 in which she sought to set aside Justice Gray’s judgment dated August 1, 2012 on the grounds that the Bank did not sell the Wallaceburg property for market value and damages of $98,000. Justice Murray dismissed the application on November 6, 2013. It is this judgment of Justice Murray that she is appealing.
[4] Our jurisdiction is limited to claims of not more than $50,000 by s. 19(1.2) of the Courts of Justice Act. The Toronto Dominion Bank pointed this out in paragraphs 20 to 25 of its factum dated February 20, 2014. Lu has taken no action to have her appeal transferred to the Court of Appeal.
[5] We have jurisdiction to transfer the case to the Court of Appeal pursuant to s. 110(1) of the Courts of Justice Act. That section reads as follows:
s. 110.(1) Where a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer.
[6] Lu’s grounds of appeal include an allegation that there was a reasonable apprehension of bias of Justice Murray and that he was in a position of conflict of interest when he presided over Lu’s application on November 6, 2013. This was because Justice Murray had presided over the motion in Action No. 3049 which he dismissed. Lu did not ask that Justice Murray recuse himself nor did she raise these arguments at the hearing on November 6, 2013. She presents no evidence to support them.
[7] Lu also submits that the Toronto Dominion Bank did not take the necessary steps to ensure that it obtained market value in the sale of the Wallaceburg property. Justice Murray found that it did. This is a finding of fact. There was ample evidence before Justice Murray to support it.
[8] In Dunnington v. 656956 Ontario Ltd (1992), 1991 7107 (ON SC), 9 O.R. (3d) 124 the Divisional Court held that it had a discretion as to whether to transfer an appeal to the Court of Appeal. It declined to exercise its discretion in favor of the appellant because it was of the view that the appeal had no merit, the respondent would suffer prejudice by the delay and the appellant had taken no steps to have the appeal transferred to the Court of Appeal after the respondent had given him notice that she had brought his appeal in the wrong court.
[9] In our view the same factors apply in this case. We dismiss the appeal without prejudice to any steps the appellant may wish to take to have her appeal heard in the Court of Appeal.
[10] The Appellant shall pay to the Respondent costs in the amount of $3,000.
Hambly J.
D. Brown J.
Gilmore J.
Dated: October 20, 2014
CITATION: Lu v. The Toronto-Dominion Bank, 2014 ONSC 7524
DIVISIONAL COURT FILE NO.: DC-13-135-00
DATE: 20141020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Hambly, D. Brown and Gilmore JJ.
BETWEEN:
Show Fong Lu Appellant (Defendant)
– and –
The Toronto-Dominion Bank Respondent (Plaintiff)
REASONS FOR JUDGMENT
Dated: October 20, 2014