Court of Appeal for Ontario

Citation: Scotia Mortgage Corporation v. Stoxes Estate, 2007 ONCA 469

Date: 20070627

Docket: C43575

Before: DOHERTY, GILLESE and MACFARLAND JJ.A.

BETWEEN:

SCOTIA MORTGAGE CORPORATION

Plaintiff (Respondent)

and

PETER BOCE, as litigation Guardian of the Estate of HELEN STOXES, deceased, PETER BOCE, also known as JONEL PETAR BOCE, and VERA BOCE

Defendants (Appellants)

AND BETWEEN:

PETER BOCE, as litigation guardian of the Estate of HELEN STOXES, deceased, PETER BOCE, also known as JONEL PETAR BOCE, and VERA BOCE

Plaintiff by Counterclaim (Appellants)

and

SCOTIA MORTGAGE CORPORATION

Defendants by Counterclaim (Respondents)

Counsel:

Lincoln Allen (Agent) for Tony Karalis appearing for Peter Boce

Onofrio Ferlisi for Scotia Mortgage Corporation

Heard and orally released: June 21, 2007

On appeal from the judgment of Justice Francine E. Van Melle of the Superior Court of Justice dated April 26, 2005.

ENDORSEMENT

The Adjournment Request

[1] At the outset of this appeal, Mr. Allen appeared as agent for the solicitor of record for the appellant, Mr. Karalis. Mr. Allen provided the court with a memorandum apparently from Mr. Karalis which read in part:

Could you please go to the Court of Appeal to inform the court that Mr. Karalis, counsel for Peter Boce [the appellant], is unable to attend Court today, June 21, 2007 because of a medical condition.

[2] The memorandum then goes on to suggest various dates beginning in August of 2007 for the hearing of the appeal. No further information is provided by Mr. Karalis.

[3] Counsel for the respondent has advised the court that he was totally unaware of any medical problem until he was provided a copy of this document immediately before court this morning. Mr. Boce is present here today and he claims that he heard nothing about this “medical condition” until he arrived at court today. He also indicated that he has been unable to contact either Mr. Karalis or his office this morning. The appellant requests an adjournment. The respondent opposes any further adjournments.

[4] There are several factors relevant to the question of whether we should grant this adjournment. First of all, this a very old appeal. The appellant has already been granted several indulgences to allow him to proceed with this matter. For example, an order dismissing the appeal for delay was made and later set aside on consent. The appeal was scheduled to be heard in March and was adjourned to allow the appellant to discharge his lawyer and retain Mr. Karalis. This date was set to accommodate Mr. Karalis.

[5] The request for an adjournment comes in a completely unsatisfactory form. It simply will not do for counsel to send an agent to court with a three-line letter indicating he will not be appearing. The court deserves a lot more than that and so does the client.

[6] There is significant prejudice to the respondent. There has been no payment on the mortgage since November 1996 and the appellants continue to occupy the property. The respondent has shown real restraint in exercising its rights under the mortgage.

[7] The panel had an opportunity to carefully review the facta that have been filed. Those facta provide full written argument on what is on any measure a straightforward appeal. The panel is satisfied that it can proceed on the basis of the written argument subject, of course, to the appellant being given an opportunity to add anything that he wishes to say.

[8] The administration of justice would be done a significant disservice were this matter to be further adjourned on the basis of the material that we have before us at this time. The matter will not be adjourned, but will proceed.

The Merits of the Appeal

[9] The outcome of the trial turned on whether the Bank had misrepresented whether the appellant and his mother’s mortgage was life insured. The trial judge accepted the evidence of the Bank and rejected the appellant’s evidence. In doing so, she relied on a document which was sent to the appellant and specifically referred to the absence of life insurance. The trial judge also relied on the appellant’s admissions that he knew it was necessary to make a written application for life insurance and that a medical examination was necessary. His mother did neither to his knowledge.

[10] We must defer to the trial judge’s finding of fact absent a clear and palpable error. There is none. The appeal is dismissed.

[11] Under the terms of the mortgage, the respondent is entitled to substantial indemnity costs. We fix those at $8,000, inclusive of disbursements and GST. This order covers all proceedings in this court.

“Doherty J.A.”

“E.E. Gillese J.A.”

“J. MacFarland J.A.”