COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Imperial Bank of Commerce v. Nazareth, 2012 ONCA 464

DATE: 20120628

DOCKET: C54104

Rouleau, Watt and Pepall JJ.A.

BETWEEN

Canadian Imperial Bank of Commerce

Plaintiff/Defendant by Counterclaim (Respondent)

and

Yorick Nazareth

Defendant/ Plaintiff by Counterclaim (Appellant)

Yorick Nazareth, in person

L. Sheather for the respondent

Heard: June 27, 2012

On appeal from the judgment of Justice J.A. Ramsay of the Superior Court of Justice dated July 5, 2011.

APPEAL BOOK ENDORSEMENT

[1] The appellant received a line of credit from the respondent. The line of credit was secured by a mortgage on his residence. The contract entitled the respondent to demand payment if a third party requested a lien against the property without the respondent’s consent. On February 11, 2010, CRA registered a lien against the property without the respondent’s knowledge. Upon discovering the lien, the respondent demanded payment. The loan was not paid and the respondent issued a claim and moved for summary judgment.

[2] Based on the loan contract and the lien by CRA, the motion judge allowed the motion for summary judgment ordered the appellant to pay $499,843.04, ordered the appellant to deliver possession of the property and dismissed the appellant’s counterclaim.

[3] The appellant takes issue with how the motion judge dealt with his allegations of identity fraud. In our view whether these allegations are true or not does not affect the fundamental conclusion reached by the motion judge that the appellant was in violation of the loan contract because of the CRA lien. We therefore give no effect to this ground of appeal. Nor do we see any error in the costs award. According to the loan contract, the respondent was entitled to costs on a substantial indemnity basis. The motion judge carefully considered the issue of costs and did not commit any error in his award.

[4] Finally, we agree with the motion judge that there is no evidence in support of the appellant’s counterclaim raising a genuine issue for trial.

[5] The appeal is therefore dismissed.

[6] The respondent is awarded costs fixed at $6,000 inclusive of disbursement and applicable taxes.