Court File and Parties

Court of Appeal for Ontario Date: 2020-03-09 Docket: C66719

Tulloch, Benotto and Jamal JJ.A.

Between

Hadi Moazzani Plaintiff (Respondent)

And

Saeid Roudechi-Ghias, Jeffrey Shek and Lloyd Rubinoff Defendants (Appellant)

Counsel: Evan L. Tingley, for the appellant Robert B. Cohen and Christopher Selby, for the respondent

Heard: March 5, 2020

On appeal from the judgment of Justice Alfred J. O’Marra of the Superior Court of Justice, dated February 19, 2019, with reasons reported at 2019 ONSC 652.

Reasons for Decision

[1] At the conclusion of the hearing, we dismissed this appeal with reasons to follow. These are our reasons.

[2] The appellant appeals the trial judge’s decision to discharge a mortgage registered in favour of the appellant on the respondent’s home. The appellant, who was in a common-law relationship with the respondent’s daughter from about 2007 to late 2010 or early 2011, claimed that in 2009 he loaned the respondent $220,000, secured by a mortgage on the respondent’s home. The respondent claimed that the loan was never advanced. The appellant claimed that the loan was advanced, repaid, and then re-loaned to the family of the appellant’s brother-in-law for the purchase of another property, but continued to be secured by the original mortgage on the respondent’s property.

[3] After hearing each side’s versions of events, the trial judge concluded: “I am unable to say I accept one version of events over the other, or to prefer one witness’ evidence over another. Simply put, I do not know who to believe.” He stated: “In deciding this case, all I can do is rely on the documentary evidence”. Based on that evidence, the trial judge made several findings of fact that led him to conclude that the appellant “received over $220,000 in February 2010, an amount sufficient to have discharged the mortgage. He received it as repayment.” Based on “the only credible evidence involving the funds, the transfer records and bank statement,” the trial judge held that when the appellant “received the funds into his account, the mortgage was effectively redeemed.” He therefore ordered the mortgage to be discharged, with each party bearing its own costs of the trial.

[4] The appellant asserts that the trial judge erred in finding that the mortgage was redeemed by failing to consider that: (1) the respondent never pleaded that he had redeemed the mortgage; (2) the respondent had no right to redeem the mortgage because more than two years remained in its term and the appellant had taken no enforcement steps; and (3) no witness testified that the respondent had redeemed the mortgage.

[5] We would not give effect to these arguments: (1) because the appellant had counterclaimed against the respondent to enforce the mortgage and take possession of the respondent’s home, the issue of whether the mortgage was enforceable or had been redeemed was properly before court; (2) because the appellant admitted, and the court found, that the original mortgage on the respondent’s home had been fully repaid, the natural consequence was that the appellant had effectively waived his right to insist on technical compliance on the mortgage term; and (3) because the trial judge doubted the credibility of each side’s witnesses, he was entitled to base his decision on the documentary evidence. It was within the trial judge’s privileged domain to make the credibility findings he did, and then to rely on the documentary evidence as the only credible evidence to decide the case. Those decisions are entitled to appellate deference.

[6] The appeal is dismissed. Costs are payable by the appellant to the respondent in the agreed amount of $20,000, inclusive of taxes and disbursements.

“M. Tulloch J.A.”

“M.L. Benotto J.A.”

“M. Jamal J.A.”