COURT OF APPEAL FOR ONTARIO

2015 ONCA 359

DATE: 20150520

DOCKET: C58626

Weiler, Cronk and Pepall JJ.A.

BETWEEN

Canada Mortgage and Housing Corporation

Plaintiff (Respondent)

and

Cathleen Beryl Hollancid also known as Kathleen Holl

Defendant (Appellant)

Courtney A. Kazembe and Jayanta K. Singha, for the appellant

Gordon Douglas, for the respondent

Heard: May 11, 2015

On appeal from the judgment of Justice Wolfram U. Tausendfreund of the Superior Court of Justice, dated March 5, 2014, and his costs endorsement dated July 9, 2014.

ENDORSEMENT

[1] The appellant appeals from a judgment ordering her to pay the respondent $128,927.03 plus prejudgment interest and $50,000 in costs. The judgment arose as a result of fraudulent misrepresentations made by the appellant so as to obtain a mortgage loan.

[2] The appellant submits that the trial judge erred in his treatment and evaluation of the evidence and in rejecting the appellant’s version of events.

[3] We disagree.

[4] There were two incompatible descriptions of events before the trial judge. The appellant claimed that she was an innocent dupe, and that mortgage fraud was perpetuated by a third party working in concert with Bank of Nova Scotia employees. The respondent’s version of events was that the appellant was a knowing participant in the fraud, and that the Bank of Nova Scotia’s employees had no involvement in the scheme.

[5] The trial judge conducted a detailed review of the evidence before him. He observed that the two bank employees testified in a straightforward and reasonable manner and their evidence had documentary support. A third party bill collector, who was called as a witness by the respondent, maintained concise and unambiguous notes that were inconsistent with the appellant’s version of events.

[6] On the other hand, the appellant’s evidence and conduct revealed numerous shortcomings. For example, the appellant never went to the Bank to advise that she was not the owner or mortgagor of the Napanee property. On the contrary, she wrote asking that the insurance and mortgage payments be debited from her account. Apart from her own testimony, the appellant called no evidence to refute the evidence of the respondent. In particular, no independent evidence was adduced to support her assertion that she did not sign the mortgage documents.

[7] The trial judge examined the totality of the evidence and rejected the appellant’s testimony. He was satisfied that, in applying for the mortgage loan, the appellant had fraudulently misrepresented her employment, her income, the source of the funds for the down payment, and her intention to occupy the property. On the record before him, it was open to him to make the findings of fact and credibility that he did.

[8] We also reject the appellant’s contention that the timing of the mortgage approval process and closing failed to reflect commercial reality. In this regard, we note that, contrary to the appellant’s abbreviated chronology that suggests that the appellant signed the mortgage application on Thursday, July 27 with a closing on Tuesday, August 1, the appellant actually first met the Bank representative for the purpose of her mortgage application on July 21, 2006.

[9] The appellant also submits that the trial judge erred by providing insufficient assistance to the appellant who, at trial, was self-represented.

[10] We would not give effect to this ground of appeal. Up until a week before the trial, the appellant was represented by counsel. At trial, the appellant participated fully. She gave evidence, cross-examined each of the respondent’s witnesses, and filed written submissions at the conclusion of the trial. Moreover, the record before us does not reveal any failure to assist.

[11] Lastly, during oral argument, the appellant did not pursue her complaint regarding the trial judge’s costs award. In any event, the trial judge’s costs award is neither plainly wrong nor infected by an error in principle.

[12] For these reasons, the appeal is dismissed.

[13] Given the issues, the lack of complexity, and the amount in dispute, we consider that an award of $15,000 for costs of the appeal, as suggested by counsel, is both excessive and disproportionate. The appellant is to pay the respondent costs of $5,000, inclusive of disbursements and all applicable taxes.

“K.M. Weiler J.A.”

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”