Court File and Parties
DIVISIONAL COURT FILE NO.: 472/16 DATE: 2018 01 26
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
BORIS BROZ
Boris Broz, acting in person
Appellant (Moving Party)
– and –
SCOTIA MORTGAGE CORPORATION
Carrie Kennedy, for the Respondent
Respondent (Responding Party)
HEARD at Toronto: January 26, 2018
Oral Reasons for Judgment
MYERS J. (Orally)
1The Appellant moves to set aside the order of the Registrar dismissing this appeal for delay dated October 24, 2017.
2There is no issue that the Appellant moved quickly once the order came to his attention. Nor is his intention to appeal really an issue.
3The appeal is from the order of Master McAfee granting summary judgment enforcing the residential mortgage that matured and fell due in full on December 31, 2015. The mortgage bears a favourable interest rate and requires the bank to pay realty tax. In the past two years the Appellant has not paid any mortgage or taxes nor has he had to refinance his condominium at the higher prevailing interest rates.
4The Appellant says he does not have to repay his mortgage because the bank mishandled a payment in June 2015 and declared him to be in default when he was admittedly in arrears but not sufficiently in arrears to have attracted the enforcement efforts of the bank up to that time.
5In June 2015, the bank started enforcement efforts. It also refused to refinance the mortgage in the fall of 2015. Mr. Broz wants justice for the bank’s mishandling and improper claim of default but he has not issued a counterclaim.
6More important, despite the events in June through the fall of 2015, on December 31, 2015 the mortgage loan came due in full. Even if Mr. Broz proves everything he says about the bank’s mishandling of one payment in June 2015, the loan has since become due in full in accordance with its terms in any event. Not only has he not paid for two years, he advances no facts or legal issues that raise any meritorious reason for his failure to meet his legal obligation to repay the bank its money.
So how has this motion arisen?
7Mr. Broz appealed on the last day of the 30 day appeal period. He ordered transcripts late, after the 30 days that the rules provide for ordering transcripts. By ordering transcripts, he believed he increased his time to perfect the appeal but in fact that was incorrect.
8Transcripts only increase the time for the appeal if they are transcripts of “oral evidence” (see Rule 61.05(5) and Rule 61.09(1)(b)). There was no oral evidence taken before the Master. Mr. Broz seeks transcripts of the hearing to show the appeal court what was said or not said at the hearing before the Master. That is a permissible use of transcripts but it is decidedly not a transcript of “oral evidence”. Therefore, the appeal should have been perfected within 30 days of the notice of appeal being filed or by mid-October 2016. Instead, Mr. Broz got until 60 days from his receipt of the transcripts on February 11, 2017 or until April 11 or 12, 2017 to perfect. Yet, he still did not do it even then.
9His mother became ill, very ill and that explains at least a couple of weeks of inaction in late March and early April. What happened next though is key.
10The Registrar issued a notice of intent to dismiss for delay. First, it did so on May 1 in error. Then it issued another on May 12.
11Mr. Broz says he spoke to the Registrar’s staff in April and learned that if he filed the transcripts, the Registrar would hold off dismissing the appeal until the one year anniversary under Rule 61.09(1). In the interim, the bank could move to dismiss. But even then, Mr. Broz would have a week or two to perfect the appeal before the motion was heard.
12Mr. Broz filed the transcripts in June and met the Registrar’s first deadline for dismissal. But he did not perfect by the one year anniversary in October. From May through to the fall of 2017, a series of very tragic deaths occurred in Mr. Broz’s family and among his friends. It is perfectly understandable that he would incur some inaction during that period. But since Mr. Broz was not aiming throughout to perfect, but rather to wait until the last available moment to do so, he found himself without options when he was beset by emotional trauma near the end of the period.
13There is no evidence at all filed by Mr. Broz as to why he did not perfect his appeal from September 2016 until April 2017 when he was actually required to do so. His mother’s illness only catches the last couple of weeks of that 7 month period.
14The time periods are not extreme in this case. Mr. Broz says there is no prejudice to the bank because it is insured. In my view, insurance is irrelevant to the issue of prejudice on this motion. The insurer would step into the bank’s shoes so that it has an identity of interest with the bank. The bank is being prejudiced by delay in this case in my view. It is worsening its principal or capital exposure as time passes because it is paying real estate taxes and it has no use of its funds in a period of increasing interest rates.
15Mr. Broz says that this does not matter because the bank is well secured by his property. He chooses not to adduce evidence of an appraisal or an indication of value that he says he has. When questioned as to why he did not refinance or sell his house if it has sufficient equity to allow him to do so, his answer was that he is “trying to right a wrong”. He is withholding the bank’s money due to its mishandling of a payment six months before the loan became due. I asked how that rights the wrong. He says he incurred damages to his mental health at least. Assuming that such damages could be compensable in a breach of contract case, he has still has not claimed any damages and the two year limitation period has long since expired.
16Mr. Broz is a very intelligent and articulate man. He knows full well that the issues from June 2015 and the fact that the bank has insurance have no bearing at all on his obligation to repay his mortgage loan when it came due. His history of inaction and stalling shows a clear effort to keep living at his condominium for free as the bank’s position worsens. He says he is looking for fairness and equity but he shows none to the bank. If he was truly concerned to perfect his appeal for example, he would have prepared his factum and compendium by today so that he would be ready to go if I extended the time right now.
17On the merits, there is no basis to find the Master approached the case in bad faith. Mr. Broz’s requests for cross-examination and production were made after he was already facing peremptory adjournments. This was far too late. Moreover, his requests sought irrelevant information concerning the issues that arose in June regarding the June payment and the insurance issues which have no bearing at all on the mortgage becoming due at the end of its term on December 31, 2015.
18With the exception of his questioning the lack of an adjournment, all of his other issues raised are factual with the facts themselves (relating to the June payment and insurance status of the loan) are, as I have said, irrelevant.
19The Appellant does not need to prove that he could win the appeal of course. He just needs to show that he has a decent, arguable case so that the interests of justice support his right to proceed despite his being late in perfecting.
20In my view, he is nowhere close to meeting that standard. The appeal has no merit at all. It is a mortgage and it is due.
21The Appellant says he has been denied procedural fairness. Yet, he has had more than two years of procedural back and forth typified principally by his own requests to adjourn. Those who seek equity must do equity. None has been shown by Mr. Broz. He says he cannot make an offer to settle because he does not know the details of the most recent costs incurred by the bank. Yet under the Mortgages Act, he can tendered the principal and interest and require a proper payout statement at any time. The costs could be resolved in accordance with the statute. It is too convenient to withhold $250,000 that is admittedly owing because there is another $15,000 to $30,000 in unparticularized recent costs. A bona fide creditor would have tendered the principal and interest due and resolved the costs if that is what is really in issue.
22Mr. Broz let more than a year go by without perfecting his appeal. He has an excuse for a period in mid-2017 but as I said, given that his aim was to hold out until the last minute until the Registrar threaten to dismiss his case at the end of the year, he found himself out of options when he was beset by problems at that time. In light of the lack of merit in the appeal and the inequitable approach of the Appellant, he cannot meet the interests of justice component to the test set out in Paulsson v. Cooper, 2010 ONCA 21, [2010] O.J. No. 123 (C.A.), para. 2.
23Extending the time in this case would be inequitable and unfair to the Respondent. Doing so would be contrary to the interests of justice. The interests of justice in a civil case include expeditious, affordable proceedings. Using systemic delay for economic advantage is decidedly contrary to interests of justice.
24Under the terms of the bank’s mortgage, the bank is entitled to its costs on substantial indemnity basis.
25The costs in this motion includes three attendances. Costs were reserved from the prior two attendances until today. I have reviewed a copy of the bank’s Costs Outline dated today and heard from Mr. Broz. In my view, the amounts claimed by the bank are reasonable and ought to be paid. Accordingly, I order Mr. Broz to pay costs in the amount of $10,019.08 which amount will be added to the mortgage in any event if they are not paid forthwith as they ought to be.
26I have endorsed the Motion Record of the Applicant as follows: “For oral reasons dictated, motion dismissed with costs of $10,019.08 payable by Mr. Broz to the Respondent.”
___________________________ MYERS J.
Date of Reasons for Judgment: January 26, 2018
Date of Release: January 31, 2018
CITATION: Broz v. Scotia Mortgage Corporation, 2018 ONSC 724
DIVISIONAL COURT FILE NO.: 472/16 DATE: 2018 01 26
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
BORIS BROZ
Appellant (Moving Party)
– and –
SCOTIA MORTGAGE CORPORATION
Respondent (Responding Party)
ORAL REASONS FOR JUDGMENT
MYERS J.
Date of Reasons for Judgment: January 26, 2018
Date of Release: January 31, 2018