COURT FILE NO.: 15-54037 DATE: 20170501 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HAMILTON CAB COMPANY INC., Plaintiff AND: JASPAL GILL, 1826548 ONTARIO INC., 1830259 ONTARIO INC., 1734958 ONTARIO INC., PARVINDER GILL, and MICHELE THOMAS, Defendants
AND RE: JASPAL GILL, 1826548 ONTARIO INC., 1830259 ONTARIO INC., and 1734958 ONTARIO INC., Plaintiffs by Counterclaim AND: HAMILTON CAB COMPANY INC., JAGTAR CHAHAL and JOHN DEAN, Defendants by Counterclaim
BEFORE: The Honourable Mr. Justice Robert B. Reid
COUNSEL: M. Abradjian, Counsel, for the Plaintiff, and Defendants by Counterclaim Hamilton Cab Company Inc., and Jagtar Chahal O. Ogunniyi, Counsel, for the Defendants, Plaintiffs by Counterclaim M. Bordin, Counsel, for the Defendant to Counterclaim John Dean
HEARD: April 18, 19 and 20, 2017
ENDORSEMENT
[1] The plaintiff, Hamilton Cab Company Inc. (“Hamilton Cab”), and the defendant by counterclaim, John Dean, both seek summary judgment against the defendants and plaintiffs by counterclaim, Jaspal Gill and the related numbered companies (I will refer to the responding parties collectively as “the Gill defendants”). The moving parties did not seek relief against the defendants, Parvinder Gill and Michele Thomas.
[2] Because the facts are interrelated, my decision on both summary judgment motions is contained in this endorsement.
Background
[3] For about twenty years, Hamilton Cab and the Gill defendants engaged in a commercial relationship with one another. Hamilton Cab carried on business as a broker between taxi operators such as the Gill defendants and taxi plate owners. The Gill defendants operated up to 70 taxis in the City of Hamilton under Hamilton Cab’s banner. They used its dispatch services and leased taxi licenses through Hamilton Cab. In addition, since about 2010, Hamilton Cab equipped taxis operated by the Gill defendants with electronic funds transfer terminals for the processing of debit and credit transactions and charged a fee for that service.
[4] The claim by the plaintiff alleges that debt was incurred on a fluctuating basis to Hamilton Cab by the Gill defendants since 2011. Hamilton Cab alleged that the debt related in part to lease payments and other fees owed by the Gill defendants, and in part to insurance and other third-party payments made on behalf of the Gill defendants by Hamilton Cab.
[5] As partial security for the debt, Mr. Gill signed a personal promissory note on October 31, 2011 in the amount of $55,000, although he deposed that he was not sure that the full amount was owing at that time. In addition, Hamilton Cab alleges that on January 23, 2012, the Gill defendants signed a general security agreement (“GSA”) by way of additional required security for their indebtedness to Hamilton Cab. In May 2014, Hamilton Cab alleges that it requested and received a share pledge agreement (“SPA”) from the Gill defendants to secure the debt owed. The Gill defendants deny signing the GSA and SPA.
[6] In January 2013, the Gill defendants transferred a taxi plate, valued at $225,000, to Hamilton Cab as a credit against amounts owing by them to Hamilton Cab. There was no denial that a corresponding debt in favor of Hamilton Cab existed at that time.
The Motion by Hamilton Cab
[7] In November 2014, Hamilton Cab served Notices of Intention to Enforce Security on the Gill defendants and demanded payment in the amount of $470,487.62. The “security” being enforced was pursuant to the GSA and the SPA. The notices were enclosed with a covering letter from counsel for Hamilton Cab, sent by registered and regular mail to the mailing address that Mr. Gill admits using. Mr. Gill denies receiving the letter or the notices.
[8] Hamilton Cab relies on a forbearance agreement dated February 24, 2015 pursuant to which the Gill defendants were given time to repay their obligations to Hamilton Cab in the amount noted above, subject to terms and conditions. Those terms included the provision of additional security in the form of a mortgage over certain properties owned by the Gill defendants. In addition, the Gill defendants executed guarantees of the debt. A term of the forbearance agreement was that the Gill defendants agreed to consent to judgment with respect to any claim commenced by Hamilton Cab in relation to the outstanding amount.
[9] The forbearance agreement set out a payment schedule. The first payment of $50,000 was to be paid May 1, 2015, but no payment was made.
[10] The mortgage in the amount of $470,487.62 provided that, upon default of payment, Hamilton Cab could take possession of the mortgaged property. The Gill defendants deny signing the mortgages.
[11] The guarantees, which the Gill defendants also deny signing, related to all indebtedness of the Gill defendants to Hamilton Cab and were not restricted to the amount outstanding on February 24, 2015.
[12] According to the statement of claim, the debt owing by the Gill defendants in September 2015 was $643,246.37.
[13] Based on the default of payment by the Gill defendants under the forbearance agreement, Hamilton Cab seeks summary judgment in the amount set out in that agreement and also an order for possession of the mortgaged premises as a result of the same default. Further, based on the guarantees, Hamilton Cab seeks judgment for the full amount of the indebtedness claimed.
The Motion by John Dean
[14] The Gill defendants were required by Hamilton Cab to secure independent legal advice relating to the forbearance agreement, mortgage and guarantees. They were referred by Hamilton Cab to John Dean.
[15] The Gill defendants have denied the propriety of the independent legal advice and have therefore included John Dean in their counterclaim, alleging professional negligence.
[16] Mr. Dean seeks a dismissal of the counterclaim against him in the second of the summary judgment motions argued before me.
Legal Framework for Summary Judgment Motions
[17] There is no dispute that the powers of the court in summary judgment motions are as set out in Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. If the court is satisfied that there is no genuine issue requiring a trial, a summary judgment shall be granted.
[18] The expanded powers of the court to determine the issue of whether a genuine issue requiring a trial exists are found in Rule 20.04(2.1) which allows the court to weigh evidence, evaluate credibility and draw reasonable inferences unless it would be in the interest of justice for such powers to be exercised only at a trial.
[19] In Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, a decision of the Supreme Court of Canada, the court indicated that there will be no genuine issue requiring a trial if the judge is able to reach a fair and just determination on the merits in a summary judgment motion. This will be the case when the summary judgment process allows the judge to make the necessary findings of fact, apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result.
[20] The moving party bears the onus of establishing that there is no genuine issue requiring a trial and, for their part, the responding parties must put their best foot forward, by way of evidence, to demonstrate the existence of a genuine issue for trial. In so doing, it is insufficient for the responding parties to simply rely on allegations or denials in the pleadings. They must depose facts that establish a real defence to an issue.
Possession of the Mortgaged Properties
[21] The mortgage by the Gill defendants relates to the properties known municipally as 252 Gibson Avenue, 250 Gibson Avenue and 97 Earl Street, all in Hamilton, Ontario. The mortgage was given in favour of Hamilton Cab and secured the amount of $470,487.62. It was apparently authorized by Jaspal Gill and registered March 5, 2015. The standard charge terms incorporated in the mortgage allow for possession by the mortgagee on default by the mortgagor.
[22] Indebtedness in the amount secured by the mortgage was set out in the forbearance agreement dated February 24, 2015 between the Gill defendants and Hamilton Cab. That agreement specifically identified the collateral mortgage on the properties noted and included interest at the rate of 5% per annum. The agreement set out that the mortgage will stand as collateral security for the obligations to Hamilton Cab arising from the loan and guarantees referred to in the agreement. As well, the forbearance agreement included a consent by the Gill defendants to judgment with respect to any claim commenced by Hamilton Cab in relation to the indebtedness in the event the payments required in that agreement were missed.
[23] The forbearance agreement required a payment to Hamilton Cab of $50,000 on the first day of May 2015. That payment was not made.
[24] The forbearance agreement provided that in the event of default, Hamilton Cab could enforce the security and pursue all remedies that it might have in connection with the Gill defendants including issuing of a Notice of Sale Under Mortgage. That Notice was served on the Gill defendants on June 11, 2015.
[25] In response to Hamilton Cab’s motion for judgment, the Gill defendants answer that the debt of $470,487.62 was never agreed and claim that Hamilton Cab has failed to provide a proper accounting of the financial transactions between them to support that debt.
[26] The Gill defendants deny that the forbearance agreement is effective as between them and Hamilton Cab because, in effect, it was a sham designed to satisfy Hamilton Cab’s bankers that Hamilton Cab had a significant amount of accounts receivable supporting its line of credit. The Gill defendants claim that they signed the forbearance agreement without any expectation of its having legal effect, in order to be cooperative with Hamilton Cab. There was no actual consent to judgment, no authorizing of a mortgage and no consent to giving up possession of the mortgaged premises. The Gill defendants therefore rely on the defence of non est factum since they allege the signing was based on a misrepresentation pursuant to which they were mistaken as to the nature and character of the forbearance agreement, guarantees and mortgage, and that they were not careless in signing under those circumstances. Alternatively, but on the same facts, the Gill defendants allege that they were the victims of fraudulent misrepresentation by Hamilton Cab.
[27] The Gill defendants submit that the mortgage is not valid, even if properly executed, because no funds were advanced in exchange for the mortgage, and because Hamilton Cab was not compliant with the provisions of the Mortgage Brokerages, Lenders and Administrators Act, 2006.
[28] Finally, the Gill defendants submit that the mortgage should not be enforceable because at the time it was executed, Hamilton Cab was in breach of its fiduciary obligation to the Gill defendants.
Analysis
[29] It is admitted that Mr. Gill on his own behalf, and on behalf of the Gill defendants, signed the forbearance agreement.
[30] The story about signing acknowledgments of indebtedness without knowing that the indebtedness existed, and for the specific purpose of assisting Hamilton Cab to mislead its bankers, is not credible. Although Mr. Gill denied having previously signed the GSA dated January 31, 2012 and the SPA dated May 15, 2014, both documents were referred to in the forbearance agreement. There was no evidence of Mr. Gill questioning the presence or validity of those documents with Mr. Dean during the independent legal advice process.
[31] Mr. Gill is an accomplished business person who, as indicated, operated a fleet of up to about 70 cabs. He had been engaged in a business relationship with Hamilton Cab for about 20 years. He has a university education. He had experience dealing with mortgages on at least four prior occasions and in cross-examination demonstrated his accurate understanding of the nature and possible consequences of a mortgage. Mr. Gill had guaranteed indebtedness on at least two prior occasions. Suffice it to say, he was a relatively sophisticated person and knowledgeable about financial and commercial matters.
[32] I will have more to say about Mr. Dean’s involvement with the Gill defendants to provide independent legal advice. However, for the moment, it is sufficient for me to refer to the Authorization and Direction given to Mr. Dean by the Gill defendants dated February 24, 2015. Mr. Dean said it was read aloud by him to Mr. Gill, word for word. It provided, in part, as follows:
You have advised me that should I default in my payment obligations to Hamilton Cab Company Inc. (“Hamilton Cab”), Hamilton Cab may take possession of the three properties referred to in the collateral charge herein and Hamilton Cab may sell such properties in order to recover the debt owed by me and the above-referred to number [sic] companies.
The documents which I have signed today, namely the Forbearance Agreement, the Guarantees, the Collateral Mortgage, the Acknowledgment and Direction, and Standard Charge Terms (“the documents”) confirm that the amount now owing to Hamilton Cab is $470,487.62 and interest is payable on this amount at 5% per annum.
You have advised me that you have expressed no opinion on the present validity of the Promissory Note dated October 31, 2011, or the Share Pledge Agreement dated May 15, 2014, the General Security Agreement dated January 23, 2012 nor any other evidence of debt document.
I understand fully the effect of signing such documents and the legal consequences flowing from my signing such documents.
[33] Mr. Gill does not deny signing the Authorization and Direction. It would indeed be a very elaborate sham to have undertaken the independent legal advice process including the Authorization and Direction solely for the purpose of assisting Hamilton Cab with its bank financing. Moreover, it is not believable that Mr. Gill had no expectation that the forbearance agreement or any of the documents referred to in it would have no legal effect.
[34] I note that there is no supporting evidence of any kind either by documents or from other deponents to provide corroboration of Mr. Gill’s position. Mr. Jagtar Chahal, a defendant to the counterclaim and CEO of Hamilton Cab, denies the scheme identified by Mr. Gill.
[35] Despite his evidence to the contrary, it also appears that Mr. Gill signed the guarantees and the mortgage. They were referred to in both the forbearance agreement including municipal addresses of the properties to be mortgaged and in the authorization and direction. It is logical that in return for agreeing to forbear the enforcement of its security, Hamilton Cab would require some additional terms to enhance its position. The guarantees and mortgage fit that bill.
[36] For his part, Mr. Dean deposed that he fully apprised Mr. Gill of the consequences of signing the documents and that he specifically negotiated with counsel for Hamilton Cab to minimize or clarify their effect. For example, he negotiated the removal of the property at 248 Gibson Avenue, Hamilton, as proposed mortgage security since that property was owned by Mr. Gill’s son. Similarly, he was able to secure amendments to the forbearance agreement as to the debt repayment terms by reducing the lump sum payments from $100,000 each to $50,000 each, and deleting a proposed payment of $50,000 on June 1, 2015.
[37] Based on the foregoing facts, I find that Mr. Gill did sign the mortgage and guarantee documents on behalf of the Gill defendants.
[38] The defence of non est factum is not made out in the circumstances. The best that could be said for Mr. Gill is that he was willfully blind as to the actual consequences of the documents he knowingly signed, and further wilfully blind as to their legal significance which he understood from his own prior experience. I am not satisfied that there is evidence of misrepresentation to the effect that Mr. Gill was mistaken as to the nature and character of the documents.
[39] Similarly, there is no evidence whatsoever that Hamilton Cab engaged in a fraudulent misrepresentation which led Mr. Gill to sign the documents on behalf of the Gill defendants. On the evidence submitted, I am not satisfied that, as between Mr. Gill and Hamilton Cab, there was any misrepresentation. If the facts relied on by the Gill defendants were true, they might have conceivably been the basis of a fraud as between Hamilton Cab and its bank to which the Gill defendants were a party, but certainly not as between Hamilton Cab and the Gill defendants.
[40] On behalf of the Gill defendants, it was also argued that the mortgage was not enforceable because no money was advanced. While I acknowledge that in a typical case, funds are advanced at the time a mortgage is signed, that procedure is not necessary. For example, a line of credit may be secured against property by a mortgage in advance of any funds being drawn. There is no doubt that a mortgagee is unable to claim repayment or interest on any sum that has not been advanced. However, in this case the mortgage specifically was designed to correspond to an existing debt set out in the forbearance agreement.
[41] The history of the financial relations between the parties leads me to conclude that there was in fact outstanding debt in the amount set out in the forbearance agreement which was secured by the mortgage. The amount was referred to in correspondence between counsel for Hamilton Cab and the Gill defendants dated November 28, 2014 in which the Notice of Intention to Enforce Security, namely the promissory note, general security agreement and share pledge agreement, was given. That letter led to negotiation of the forbearance agreement, mortgages and guarantees. The documentary evidence provided on the motion by Hamilton Cab made clear the generally increasing indebtedness of the Gill defendants to Hamilton Cab from about 2011 onward. Credit was given by Hamilton Cab for the sum of $225,000 which corresponded to the value of a taxi plate transferred to it by the Gill defendants in January 2013. Other than a general denial, there was no documentary or other evidence from the Gill defendants to the effect that no debt, or an amount less than $470,487.62, existed when the mortgage was signed.
[42] Counsel for the Gill defendants also relies on section 12 of the Mortgage Brokerages, Lenders and Administrators Act, 2006 in support of the position that Hamilton Cab is prohibited from commencing a court action to enforce the mortgage. Section 12(1) reads:
A person or entity is not entitled to commence an action or proceeding to be remunerated for dealing in mortgages in Ontario, trading in mortgages in Ontario or administering mortgages in Ontario unless, at the time the person or entity was dealing in, trading in or administering mortgages, he, she or it was licensed to do so or was not required to be licensed to do so.
[43] Contrary to the position taken on behalf of the Gill defendants, I find that the Act does not apply to the circumstances of this case. The claim is not for any fees related to mortgage brokerage but rather directly relates to the collection of debt through the security provided by a private mortgage between the parties. The Act is not designed to regulate such activities or private financing arrangements that involve mortgages. Rather, it is designed to regulate the business of dealing in mortgages as would be the case with a mortgage broker.
[44] The claim for breach of fiduciary relationship is without merit. A fiduciary duty in the context of an arms-length, commercial relationship is imposed only under circumstances where one party is particularly vulnerable to the other because of the broad scope of authority exercised by the dominant party. In this case, the relationship between the parties appears to be one of mutual dependence: the Gill defendants need access to taxi plates, dispatch and other support services from Hamilton Cab in order to operate their fleet. Likewise, Hamilton Cab needs the vehicles and drivers provided by the Gill defendants to service its customers. Obviously, with 70 cabs in their fleet, the Gill defendants were positioned to exercise significant influence over Hamilton Cab as is demonstrated by the debt that Hamilton Cab allowed to accumulate.
[45] Quite apart from what I consider to be the inapplicability of the concept of fiduciary duty to these parties, there is no factual basis upon which to establish the breach of any such duty by Hamilton Cab. It is insufficient to simply plead the breach of an equitable concept and claim a remedy. In this summary judgment motion, the Gill defendants have not shown a basis for the breach claimed arising out of the forbearance agreement, the related mortgage or guarantees.
[46] It does not appear that other relevant evidence is available to be called at trial on behalf of the Gill defendants. It is their responsibility to have led evidence in response to the summary judgment motion in order to support the existence of a genuine issue requiring a trial. This they have not done.
[47] Based on the foregoing, the motion of Hamilton Cab for an order for possession of the mortgaged properties is hereby granted, and there will be a partial summary judgment in favour of Hamilton Cab against the Gill defendants in the amount of $470,487.62.
Additional Debt Claimed by Hamilton Cab
[48] Hamilton Cab alleges that, since the signing of the forbearance agreement, mortgages and guarantees in February 2015, additional debt was incurred by the Gill defendants as a result of their continuing business relationship with Hamilton Cab. The total indebtedness as alleged in the statement of claim as of September 2015 was $643,246.37. Therefore, in addition to the amount secured by the mortgage, there was additional debt in the amount of $172,758.75.
[49] On behalf of Hamilton Cab, it was deposed that the Gill defendants received regular statements of account from Hamilton Cab indicating the state of financial affairs between them. The Gill defendants deny receiving regular or sufficient accounting and therefore deny liability to pay the additional debt.
[50] For the same reasons set out above in which I found the terms of the forbearance agreement to be valid and enforceable through the mortgage security, I find that the guarantees signed by the Gill defendants, as referred to in the forbearance agreement, represent valid security for such additional debt as may have accumulated in favour of Hamilton Cab by the Gill defendants.
[51] During submissions, it appeared that there may be outstanding undertakings or at least refusals to answer questions asked during the cross-examination of Hamilton Cab representatives on affidavits filed. Those undertakings and refusals may relate to proof of the additional debt claimed. As well, there is an outstanding motion of the Gill defendants for an order as to third-party disclosure pursuant to Rule 30.10(1) relating to the electronic funds transfers. I note that, although that motion was originally returnable September 29, 2016, the Gill defendants have not yet taken steps to schedule a hearing date.
[52] Based on the evidence before me, it does not appear that establishing the total amount owed by the Gill defendants to Hamilton Cab is a genuine issue requiring a trial. However, it may be premature to grant judgment to Hamilton Cab in the amount claimed, since accounting records as to the indebtedness are entirely within the control of Hamilton Cab which bears the onus of proving the debt, and since the Gill defendants deny receiving full disclosure.
[53] Rule 20.04(3) deals with the situation where the only genuine issue is the amount to which the moving party is entitled. In that case, the court’s options are to order a trial of that issue or to grant judgment with a reference to determine the amount. In this case, I am satisfied that the interests of justice are served by granting judgment in favour of Hamilton Cab with the amount of indebtedness to be determined on a reference. I suggest that the parties prepare a draft order to that effect and if there is no agreement as to terms, an appointment can be made for the parties to return and make submissions before me as to the form of the order.
Solicitor’s Negligence
[54] John Dean is a solicitor with 43 years’ experience. Approximately 70% of his practice is in the area of real estate and typically he has provided independent legal advice to borrowers as regards private mortgages several times per year. The Gill defendants were referred to him by counsel for Hamilton Cab to provide independent legal advice regarding the forbearance agreement, mortgage and guarantees. There is no evidence of any conflict of interest as a result of that referral.
[55] According to Mr. Dean, legal advice was provided and, in his presence, Jaspal Gill signed the documents on his own behalf and on behalf of the related corporations.
[56] There is a factual dispute about whether Jagtar Chahal was present with Mr. Gill and Mr. Dean when the documents were signed. According to Mr. Gill, Mr. Chahal was present. Mr. Dean confirmed that on the occasion when the final documents were reviewed and signed by Mr. Gill, another individual accompanied him who Mr. Dean recalled as being a friend of Mr. Gill from Hamilton Cab. For his part, Mr. Chahal testified during his cross-examination on June 14, 2016 that he was present at the meeting at Mr. Gill’s request. In his subsequent cross-examination of November 23, 2016, he changed his story and recalled that he remained outside Mr. Dean’s office while the meeting occurred.
[57] There is agreement amongst Mr. Dean, Mr. Gill and Mr. Chahal that Mr. Chahal played no part in the meeting, assuming he was present. He did not speak. His presence was not a matter of objection by Mr. Gill. There is no allegation that his presence was intimidating or coercive.
[58] It is unnecessary for me to resolve the factual issue regarding Mr. Chahal’s presence during the meeting for the purposes of this motion. Regardless of whether it is proper practice for a solicitor to ensure that an opposing party is not present when independent legal advice is given, there is no indication that the presence of Mr. Chahal had any impact on the independent legal advice or on Mr. Gill’s decision to sign the documents. Put another way, even where there is a breach of a standard of care in a negligence action, there must also be proof of causation and damages for the action to be successful. In this case, the Gill defendants have not provided any evidence of either causation or damages flowing from the alleged breach.
[59] There is also a factual dispute about whether the legal advice was provided in three separate interviews conducted over the course of three weeks and culminating in the signing of documents or whether there was a single meeting. Mr. Dean relies on his memory and records to indicate that three meetings occurred following arrangements made by telephone. Mr. Gill deposes that only one meeting took place between them and that there were no prior telephone calls. Mr. Dean recalled detailed discussions and negotiations regarding the content of the various documents, followed by amendments. Mr. Gill stated that there was no discussion with Mr. Dean whatsoever, no questions asked by Mr. Dean, and that in a very brief 10- to 15-minute interview, he was told to “just sign the papers”.
[60] Mr. Gill denies reading any of the papers before signing but admits that he did not advise Mr. Dean that he had been asked to sign the documents in order to assist Hamilton Cab with its bank financing.
[61] As with my comments concerning the presence of Mr. Chahal during the final meeting, it is not necessary for me to resolve the factual discrepancy about the number of interviews. Regardless of whether the independent legal advice was given over the course of three meetings or one, there is no indication that the advice was inadequate or inappropriate. There is no allegation the documents were not adequately explained to Mr. Gill, and I have already referred to Mr. Gill’s level of sophistication in such matters.
[62] If it were necessary to make a finding as to credibility on the issue of the number of meetings, I would have no hesitation in accepting the position of Mr. Dean. He is an experienced solicitor for whom the giving of independent legal advice in matters involving mortgages was common. His recollection, as contained in his affidavit and cross-examination, was clear. I note that the affidavit of Mr. Dean was sworn December 3, 2015, within the same year that the independent legal advice was given, and therefore his memory could be expected to have been fairly fresh. In addition, the documents provided by him from his file indicated discussion of relevant matters with Mr. Gill. For example, he identified that 1830259 Ontario Inc., one of the Gill defendants, was not indebted to Hamilton Cab even though it was requested to provide a guarantee of indebtedness. He negotiated terms of the forbearance agreement in favour of the Gill defendants to which I have already referred. He appears to have reviewed all relevant documents including not just the draft forbearance agreement, mortgage and guarantees, but also a draft of the 2011 promissory note and the 2014 SPA. His handwritten notes are indicative of discussions with Mr. Gill and contain information that could only have been received from Mr. Gill. Examples are the size of Mr. Gill’s fleet of cabs and the transfer of the taxi plate, both of which were noted by Mr. Dean. Handwritten diary entries confirm the date and times of the meetings. He testified that the authorization and direction signed by Mr. Gill was read aloud to him in its entirety by Mr. Dean, confirming salient points of the advice given.
[63] For his part, and by comparison, Mr. Gill was vague about the signing of the documents. He indicated that the apparent signature on the mortgage and guarantees were either his or looked like his signature. He admitted his signature on the forbearance agreement and the certificate of independent legal advice and stated that the signature on the authorization and direction looked like his. It is noteworthy that he did not deny outright that the signatures were his, nor did he allege that he failed to understand the import of the various documents signed in Mr. Dean’s presence.
[64] On behalf of the Gill defendants, counsel submitted that the diary entries and handwritten notes of Mr. Dean had been fabricated after the fact since they were not initially provided in response to counsel’s request for Mr. Dean’s file. However, in my view, the request did not make it clear that the entire file inclusive of file notes and diary entries was being sought. Mr. Dean deposed to his understanding that it was the signed documents or drafts that were being requested and that his responses were consistent with that understanding. I agree that it is not within normal contemplation of counsel to disclose personal and private file material made by the solicitor. In this case, I do not find that the failure to provide the entire file in response to counsel’s initial request leads to an inference that the handwritten notes and records were falsely created at a subsequent time.
[65] Based on the foregoing, as between the evidence of Mr. Dean and Mr. Gill concerning the number of meetings between them, I accept the evidence of Mr. Dean.
[66] Competing expert reports were filed as to whether Mr. Dean’s actions met the standard of care required of a reasonably prudent solicitor. As with my comments above concerning the factual disputes noted, it is unnecessary for me to prefer one expert over the other to determine whether there is a genuine issue requiring a trial.
[67] Even if I accept that there was a breach of a solicitor’s standard of care, for there to be a genuine issue requiring a trial, there must also be a causal connection between the breach and the damages suffered. It appears that the Gill defendants believe that they are entitled to damages simply because of a breach of duty. Damages are claimed to be the amount of debt referred to in the forbearance agreement, secured by the mortgage, and additional debt which is secured by the guarantees.
[68] There is no allegation that the Gill defendants would not have signed the forbearance agreement, mortgage and guarantees if the independent legal advice procedure had been different. There is no suggestion that Mr. Gill failed to understand the nature, consequences, and risks associated with signing the documents. In effect, he knew what he was doing. As a result, there is no causal connection alleged between the failure to give independent legal advice, according to the standard suggested by the defendants’ expert, and the obligation of the Gill defendants to repay a debt owed to Hamilton Cab and secured by a mortgage and guarantees.
[69] Parenthetically, I observe that it is not required in matters of commercial transactions between arms-length parties that a lawyer providing independent legal advice advise on the merits of the proposed transaction. I see this as a different situation from that of, for example, a matrimonial breakdown where duties imposed on counsel for the parties may be different from those in a commercial transaction.
Summary
[70] In my view, this case is ideally suited to the summary judgment procedure found in Rule 20.04. Virtually all the evidence that could be expected at trial has been provided to the court through affidavits and transcripts. I am confident that I have been able to reach a fair and just determination on the merits on the motions. Bringing these matters to a conclusion without the need for a trial is clearly more expeditious and less expensive than would be the case if the matter proceeded to trial. For clarity, I observe that the summary judgment motions do not affect any claim by Hamilton Cab against Parvinder Gill and Michele Thomas. As well, the summary judgment motions do not relate to any counterclaim by the Gill defendants against Hamilton Cab and Jagtar Chahal except by way of any necessary implication that may arise from my decision.
[71] Therefore, and for the reasons set out above:
a. Hamilton Cab will have a summary judgment in its favour for possession of the mortgaged properties and for $470,487.62, plus prejudgment interest at 5% from November 28, 2014 to date against the Gill defendants.
b. Hamilton Cab will have a judgment against the Gill defendants for additional debt in an amount to be determined on a reference pursuant to the guarantees dated February 24, 2015.
c. The counterclaim by the Gill defendants against John Dean is dismissed.
Costs
[72] I have encouraged the parties to resolve the issue of costs consensually. In the event that they are not able to do so, I am prepared to receive written submissions according to the following timetable:
a. Hamilton Cab and John Dean are to serve the Gill defendants with written costs submissions and a bill of costs on or before May 15, 2017.
b. The Gill defendants are to serve Hamilton Cab and John Dean with written costs submissions and a bill of costs on or before May 29, 2017.
c. Hamilton Cab and John Dean are to serve the Gill defendants with any responding submissions on or before June 5, 2017.
[73] All submissions are to be filed with the court by no later than June 5, 2017. If submissions are not received by that date or any agreed extension, the matter of costs will be deemed settled.
