Court File and Parties

CITATION: Xceed Mortgage Corporation v. Evans, 2008 ONCA 175

DATE: 20080311

DOCKET: C47794

COURT OF APPEAL FOR ONTARIO

LANG, MACFARLAND and LAFORME JJ.A.

BETWEEN:

XCEED MORTGAGE CORPORATION and XCEED FUNDING CORPORATION

Plaintiffs (Respondents)

and

DIANNE EVANS

Defendant (Appellant)

Counsel: John Weingust, Q.C. for the appellant Ben Frydenberg for the respondents

Heard: February 29, 2008

On appeal from the judgment of Justice D.R. Gray of the Superior Court of Justice dated September 12, 2007.

ENDORSEMENT

[1] The appellant appeals from the decision of the motion judge, Gray J., which granted summary judgment against the appellant regarding a mortgage she executed, together with her co-mortgagor, in favour of the respondents.

[2] In response to the mortgagees’ motion for summary judgment, the appellant filed two affidavits alleging misrepresentation by an unnamed mortgage broker whom she claimed was the mortgagees’ agent. She also resisted the motion on the basis of non est factum and an absence of independent legal advice. Finally, she challenged the quantum of the judgment on the basis that the lenders’ fee was unconscionable and that the respondents’ sale of the property was improvident.

[3] On appeal, the appellant argues that the motion judge improperly determined issues of credibility that necessitated a trial and that he improperly shifted the burden to the appellant. We do not agree.

[4] The motion judge properly set out the test on a motion for summary judgment and explicitly recognized that the burden on such a motion rests on the moving party throughout.

[5] The appellant’s affidavits refer to the mortgage broker as the agent of the mortgagees. On this issue, the motion judge noted that while the appellant’s affidavits asserted the agency relationship, the appellant provide no evidence to substantiate that allegation. In the absence of any evidence of agency, or any evidence that the mortgagees were aware of any alleged misrepresentations, the motion judge correctly determined that the appellant’s argument did not disclose a genuine issue for trial.

[6] The appellant’s only reference to non est factum was a passing one when she said in her first affidavit that “in addition to my defence of non est factum”, she was relying on other defences. Similarly, the appellant’s affidavits about the absence of independent legal advice are merely bald statements unaccompanied by any material facts. The motion judge was entitled to conclude that mere reference to potential defences was insufficient to raise a genuine issue for trial. In addition, the appellant’s affidavits make no reference whatsoever to the allegedly unconscionable lending fee.

[7] Regarding improvident sale, the appellant relies on her evidence that, while the April 2006 mortgage secured the principal amount of $364,000, the mortgagees listed the property in January 2007 for $346,900 and sold it six days later for $337,000. There are three reasons why this allegation does not raise a genuine issue for trial.

[8] First, while the mortgage was in the amount of $364,000, the mortgage advance was only $350,000, the balance being the impugned lenders’ administration fee. Accordingly, the appropriate comparison is between the mortgage advance of $350,000 and the sale price of $337,000.

[9] Second, the mortgagees provided substantial evidence about comparative sales that established, on their face, that the sale price fell within the range for this property.

[10] Third, the appellant’s only evidence that the mortgagees’ sale price was unreasonable was based on comparative listings, not sales. There is an important difference between listings and sales. Further, the appellant has failed to establish that the expeditious nature of the sale compromised the sale price obtained. Notably, the respondents received three offers, all of which fell within the same range, and accepted the highest bid.

[11] Since we see no error in the decision of the motion judge, and we reject the argument that the motion judge impermissibly shifted the burden to the appellant, we would dismiss the appeal.

[12] Costs to the respondents fixed in the amount of $4,500.00, inclusive of disbursements and Goods and Services Tax.

“S. E. Lang J.A.”

“J. MacFarland J.A.”

“H.S. LaForme J.A.”