Citation and Court Information
CITATION: 2165330 Ontario Inc. v. Finch 2015 ONSC 5789
DIVISIONAL COURT FILE NO.: DC-15-780 (Oshawa)
DATE: 20150917
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
REILLY, NORDHEIMER & CORBETT JJ.
BETWEEN:
2165330 ONTARIO INC. Respondent (Plaintiff)
– and –
LISA MARIE FINCH and CHRISTOPHER MARK FINCH Appellants (Defendants)
COUNSEL:
G. Vella, for the respondent
B. Fromstein, for the appellants
HEARD at Oshawa: September 17, 2015
Reasons for Judgment
NORDHEIMER J. (orally):
[1] The appellants appeal from the summary judgment granted by Glass J. on January 20, 2015, that gave judgment to the respondent for monies due under a mortgage.
[2] There is no dispute that a mortgage was given by Lisa Finch to the respondent over a residential property that the appellants purchased in Pickering, Ontario. There is also no dispute that the mortgage went into default.
[3] The appellants’ central contention is that summary judgment should not have been granted on the respondent’s claim because it is part and parcel of a larger ongoing action commenced by the appellants in Toronto in 2011. That claim involves a number of defendants, one of which is the respondent here. The claim in the 2011 action revolves around the appellants’ dealings with a financial advisor that they hired to assist them to manage their money along with other matters. There are allegations that this financial advisor, along with others, misappropriated funds, and/or failed to properly account for funds, belonging to the appellants. Included in those funds are funds that the appellants say they were entitled to on the sale of a residential property in Markham, Ontario that was sold in order to purchase the Pickering property. The appellants say that, because of these improprieties, they wound up having to borrow more monies to complete the purchase of the Pickering property, including the monies that were secured by the mortgage in issue.
[4] The appellants assert that summary judgment ought not to have been granted because there are triable issues raised between them and the respondent as set out in the 2011 action. The appellants also say that the motion judge erred in not staying this action until the 2011 action was heard and determined. Finally, the appellants also seek leave to appeal the motion judge’s award of costs.
[5] Part of the problem with the appellants’ assertion, that there is a substantial link between the claim here and the 2011 action, revolves around their allegation, in the 2011 action, that the assailed financial adviser, along with others, controlled the respondent. The evidence on the motion for summary judgment failed to establish any substantiation for that allegation. No connection was shown between the respondent and the main defendants against whom the principal claims are made in the 2011 action.
[6] Another problem with the asserted link between the two actions involves the appellants’ claim that there has not been a proper accounting of the appellants’ funds received and disbursed in conjunction with the purchase and sale of these two properties. That allegation, however, does not directly implicate the respondent. Rather, it provides the apparent foundation for the appellants’ contention that they were improperly compelled to borrow monies from the respondent that were secured by the mortgage.
[7] The appellants’ allegation that they had to enter into this mortgage because of the misfeasance of others does not mean that the appellants are not liable to the respondent for the monies borrowed. At most, it provides the basis for a claim that the appellants may have against others for the monies that they borrowed from the respondent. I note that there is no issue over the amount that was due under the mortgage.
[8] In my view, the motion judge was correct in determining that there were no triable issues regarding the appellants’ liability to the respondent for the monies due under the mortgage. I also agree with the motion judge that there was no established link between the allegations in the 2011 action and this proceeding that ought to preclude summary judgment being granted. Indeed, the appellants failed to place any evidence before the motion judge that demonstrated any such link. I further agree with the motion judge’s conclusion, that necessarily follows from the first two, that there was no valid reason to stay this proceeding and make it await the outcome of the 2011 action.
[9] The appellants also seek leave to appeal from the motion judge’s award of $20,000 for the costs of the summary judgment motion and the action as a whole. While that sum may seem high at first blush, it must be remembered that, under the terms of the mortgage, the respondent is entitled to its costs of enforcement on a solicitor and client basis. The quantum at which costs are fixed generally involves the exercise of the discretion of the judge who fixes them. Absent the amount being patently unreasonable for the matter at issue, an appellate court must accord deference to the amount fixed by the judge below. I cannot find any patent unreasonableness in the amount which the motion judge fixed for costs in this case.
[10] The appeal is dismissed as is the motion for leave to appeal costs.
[11] The appellants will pay to the respondent the costs of the appeal and motion for leave to appeal fixed in the amount of $7,500 inclusive of disbursements and HST within thirty days.
NORDHEIMER J.
REILLY J.
CORBETT J.
Date of Reasons for Judgment: September 17, 2015
Date of Release:
CITATION: 2165330 Ontario Inc. v. Finch 2015 ONSC 5789
DIVISIONAL COURT FILE NO.: DC-15-780 (Oshawa)
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
REILLY, NORDHEMER & CORBETT JJ.
BETWEEN:
2165330 ONTARIO INC. Respondent
– and –
LISA MARIE FINCH and CHRISTOPHER MARK FINCH Appellants
REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: September 17, 2015
Date of Release: