Court of Appeal for Ontario

Date: April 4, 2018 Docket: C64252

Judges: Doherty, van Rensburg and Nordheimer JJ.A.

Between

Tatiana Andreevskaia Plaintiff (Respondent)

and

Vitali Satanovski and Lyudmyla Tereshchenko Defendants (Appellants)

Counsel

Robert C. Dunford & Sarah Wouters, for the appellants

R. Adam J. Pyne-Hilton, for the respondent

Heard and released orally: April 3, 2018

On Appeal

On appeal from the judgment of Justice Mary E. Vallee of the Superior Court of Justice, dated July 25, 2017 with reasons reported at 2017 ONSC 4478.

Reasons for Decision

[1] The defendants appeal from the summary judgment granted by the motion judge that awarded to the plaintiff the sum of $247,247.93 together with interest and costs under a mortgage. The judgment also required the appellants to deliver possession of the property against which the mortgage was secured.

[2] The evidence established that the respondent advanced monies to the appellants to assist them in running a charitable organization. Four different advances were made. The first two were repaid but the latter two were not. Eventually, the appellants gave a mortgage to the respondent to secure the amount that was outstanding. They also signed a promissory note for the outstanding amount.

[3] Affidavits were filed by the parties and cross-examinations were conducted. In the end result, the motion judge concluded that there was no genuine issue for trial. Specifically, she rejected the appellants' contention that the monies advanced were a gift and not a loan and that they were interest-free. The motion judge also rejected arguments advanced by the appellants that they did not understand the mortgage that they signed (even though they received independent legal advice before signing it), that they signed under duress, and that the mortgage was an unconscionable transaction.

[4] The appellants have failed to establish that the motion judge made any palpable and overriding error in the conclusions that she reached. We generally agree with the motion judge that the various defences advanced by the appellants were untenable and contrary to the evidentiary record.

[5] At the hearing of the appeal the appellants limited their argument to the amount of the judgment, arguing that the motion judge ought not to have determined the amount on the basis of conflicting evidence about payments that they made and in particular ought not to have accepted the accounting in Schedule A that was attached to the respondent's factum on the motion.

[6] Schedule A was evidence properly before the motion judge as an answer to a question taken under advisement that specifically requested the respondent to summarize the payments made and the amount due. There was no error in the motion judge using this evidence for that purpose. Nor was it necessary for the motion judge to require oral evidence on the amount due. All of the evidence necessary for the purpose of making that determination was before her.

[7] We would also note that in her reasons the motion judge invited submissions on "the total amount" so if counsel thought there was an issue in this respect, they had the opportunity to advise the motion judge of it. No such submissions were made.

[8] Consequently, there is no basis for us to interfere with the summary judgement that was awarded.

Conclusion

[9] The appeal is dismissed. The respondent is entitled to her costs of the appeal in the agreed amount of $8,857.81 inclusive of disbursements and HST. There will also be an order directing that the amount paid into court for security for costs be paid out to the respondent.

"Doherty J.A."

"K. van Rensburg J.A."

"I.V.B. Nordheimer J.A."