Court of Appeal for Ontario

CITATION: Di Biase v. The Toronto Dominion Bank, 2010 ONCA 482

DATE: 20100706

DOCKET: C51075

MacPherson, Cronk and Karakatsanis JJ.A.

BETWEEN

Giuseppina Di Biase and Michael Mikhail

Plaintiff (Appellant)

and

The Toronto Dominion Bank and Spiegel Nichols Fox LLP

Defendant (Respondent)

Michael Mikhail and Giuseppina Di Biase, acting in person

Ian Latimer, for the respondents

Heard: July 5, 2010

On appeal from the judgment of Justice John R. Sproat of the Superior Court of Justice, dated August 28, 2009.

APPEAL BOOK ENDORSEMENT

[1] The appellants, Giuseppina Di Biase and Michael Mikhail, appeal from the order of Sproat J. of the Superior Court of Justice dated August 28, 2009, striking their claims in two actions against the respondents Toronto Dominion Bank and Spiegel Nichols Fox LLP in their entirety. The actions related to the conduct of the respondents respecting the enforcement of two mortgages on properties in Brampton and Belleville on which the appellants defaulted.

[2] We agree with Sproat J.’s analysis and disposition.

[3] There was no basis for any claim against SNF. At all times, SNF was acting for TD and its actions would be the responsibility of TD. The appellant Mikhail has no legal standing to advance a claim in either action. The appellant Di Biase’s claims could and should have been made in the enforcement proceedings commenced by TD.

[4] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $1000 inclusive of disbursements and GST.