Court of Appeal for Ontario

CITATION: Serniak v. Teitel, 2010 ONCA 436

DATE: 20100611

DOCKET: C51559

Before: Simmons, LaForme and Epstein JJ.A.

BETWEEN:

Mary Serniak

Plaintiff (Appellant)

And

Murray Teitel, Newman, Weinstock and Green and Spiegel

Defendant (Respondents)

Counsel:

Mary Serniak, in person Murray Teitel, for the respondents

Heard and endorsed: June 10, 2010 On appeal from the judgment of Justice Roberts of the Superior Court of Justice dated December 22, 2009.

APPEAL BOOK ENDORSEMENT

[1] We see no basis for interfering with para. 1(a) of the motion judge's order permanently staying all allegations in the assessment of costs proceeding that refer to the alleged refusal by the mortgagee's solicitor to allow the appellant to renew or refinance or redeem her mortgage(s).

[2] Although the parties to the assessment proceedings are the mortgagor and the mortgagee's solicitor, in our view, the only issues properly raised on the assessment hearing are the propriety of the costs charged by the solicitor to his client, the mortgagee. Because the mortgagee's costs are passed on to the mortgagor under the terms of the mortgage(s), in this type of assessment proceeding, the mortgagor effectively stands in the shoes of the mortgagee.

[3] Other issues, pertaining to the mortgagee's entitlement to costs as against the mortgagor, are properly litigated between the appellant and the mortgagee. Such issues include the allegations referred to in para. 1(a) of the motion judge's order and, for example, allegations of an improvident sale.

[4] As for para. 1(b) of the motion judge's order requiring that the appellant order the transcript of the assessment proceedings to date relating to “the remaining issues of the assessment” as a condition of proceeding with the assessment, we are advised that the only transcript necessary to deal with the issue properly before the assessment officer, namely, the propriety of the costs charged by the solicitor to his client, the mortgagee, is available. In these circumstances, we set aside para. 1 (b).

[5] In all the circumstances, the costs order below is set aside. All parties will bear their own costs of this appeal and the proceeding below.