Court of Appeal for Ontario

Date: 2018-04-19 Docket: C63861

Judges: Pepall, Roberts and Miller JJ.A.

Between

Vito Auciello Plaintiff (Appellant)

and

CIBC Mortgages Inc., Home Trust Company and Sun Life Assurance Company of Canada Defendants (Respondents)

Counsel

Vito Auciello, acting in person

Onofrio Ferlisi, for the respondent CIBC Mortgages Inc. previously carrying on business as 3877337 Canada Inc.

Amanda Jackson, for the respondent Home Trust Company

Heard: April 12, 2018

On Appeal

On appeal from the judgment of Justice Carole J. Brown of the Superior Court of Justice, dated April 25, 2017, with reasons reported at 2017 ONSC 2360.

Reasons for Decision

[1] The appellant appeals from the order of C. Brown J., granting summary judgment to the respondents and dismissing the appellant's action against them.

[2] The respondent, CIBC Mortgages Inc. previously carrying on business as 3877337 Canada Inc. ("387"), is a mortgage broker that arranges mortgages for clients with financial institutions. The appellant contacted 387. He advised 387's representative that he wished to refinance adjoining commercial properties, which he believed to be worth $1.2 million, with a new first mortgage of $600,000. 387's representative suggested Home Trust Company ("Home Trust") as a potentially suitable lender but indicated that a property appraisal would be required. Subsequently, the appellant advised 387's representative that the properties were owned by Network Cash Mart Ltd. ("Network").

[3] Ultimately, the appellant executed a Home Trust mortgage commitment letter in Network's name as mortgagor and his name as guarantor. The commitment was subject to certain conditions, including an appraisal reflecting a minimum property value of $1.2 million.

[4] The first appraiser advised that a $1.2 million was unrealistic but did not compile an appraisal report. The motion judge found that this was a courtesy to the prospective mortgagor so that it would not be charged for an appraisal report that did not meet the commitment requirement. A second appraiser also declined to complete an appraisal because the valuation was unrealistic.

[5] To assist the appellant, Home Trust asked the first appraiser to complete an appraisal report. The appraisal confirmed an as-is value of $600,000 and a value if complete of $665,000. Based on this appraisal, Home Trust provided a new commitment for mortgage financing of $390,000, subject to certain conditions. The appellant did not accept the new commitment. The first commitment's $1.2 million appraisal condition remained unfulfilled, and the financing did not proceed.

[6] The appellant then commenced proceedings against 387 and Home Trust for breach of contract and various other causes of action. Among other things, he alleged that they mishandled the appraisal process, caused undue delay, and failed to act in good faith.

[7] The respondents successfully moved for summary judgment, and the appellant's claim was dismissed. The motion judge concluded that the appellant had no cause of action as the property was owned by a corporation and not by the appellant, and in any event, no damages were caused by the respondents.

[8] On appeal, the appellant submits that as a self-represented party, the motion judge ought to have assisted him and granted an adjournment due to his and his mother's health, a procedural issue, and so that he could bring the action in the name of the corporation. He also asserts that the motion judge made certain factual errors and erred in her finding relating to the value of the property and his failure to prove any damages.

[9] We do not agree with the appellant's submissions.

[10] An adjournment would have made no difference to the outcome, and in any event, none was requested of the motion judge. Furthermore, the appellant could not succeed in the action regardless of whether it was in his name or that of the corporation. There was no reliable evidence that the property had a value of $1.2 million or that the appraised value of $600,000 was wrong. In this regard, it was open to the motion judge to discount the MLS posting prepared and posted by the appellant as being self-serving. Fundamentally, the property did not have an appraised value of $1.2 million, and as such, no mortgage financing was available.

[11] As the motion judge concluded, there was no obligation on the part of either respondent to secure the amount of the loan sought by the appellant. The evidence reveals no act or omission by the respondents that caused any loss or damages. The motion judge properly concluded that there was no genuine issue requiring a trial.

[12] The appellant also seeks to admit fresh evidence consisting of an affidavit sworn by him. The contents of the affidavit meet none of the requirements for the admission of fresh evidence described in Palmer v. The Queen, [1980] 1 S.C.R. 759; and Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208.

[13] For these reasons, the motion to admit fresh evidence and the appeal are dismissed. The appellant shall pay $5,000 in costs on a partial indemnity scale, inclusive of disbursements and applicable tax, to each of the respondents.

"S.E. Pepall J.A."

"L.B. Roberts J.A."

"B.W. Miller J.A."