COURT OF APPEAL FOR ONTARIO

CITATION: Auciello v. CIBC Mortgages Inc., 2020 ONCA 553

DATE: 2020-09-04

DOCKET: M51270

Lauwers, Brown and Nordheimer JJ.A.

BETWEEN

Vito Auciello

Plaintiff

(Applicant/Moving Party)

and

CIBC Mortgages Inc., Home Trust Company and Sun Life Assurance Company of Canada

Defendants

(Respondents/Responding Parties)

Vito Auciello, acting in person

Onofrio Ferlisi, for the responding party CIBC Mortgages Inc.

Amanda Jackson, for the responding party Home Trust Company

Heard: in writing

By the Court:

[1] Vito Auciello seeks leave to appeal from the costs decision of Justice Carole J. Brown of the Superior Court of Justice, reported at 2019 ONSC 5637.

[2] This motion was scheduled to be heard in writing on August 24, 2020. On Friday, August 21, 2020 Mr. Auciello sent an email to the court requesting “at least over the weekend to review all documents and submit a reply Factum if needed.” He concluded his email this way: “Please buy me some time till Monday or look into an adjournment so that I can get some legal advice on all matters.”

[3] The court heard nothing from Mr. Auciello, and the panel instructed staff to reach out to him on Wednesday, August 26, 2020. He responded with a request for an adjournment. Then, on August 27, 2020 he filed a reply factum.

[4] The panel refused an adjournment and proceeded to consider Mr. Auciello’s motion.

The Governing Principles

[5] The governing principles applicable to a motion for leave to appeal costs were set out by this court in Colistro v. Tbaytel, 2019 ONCA 197, 145 O.R. (3d) 538, at para. 65:

The test for leave to appeal an order as to costs is stringent. Leave to appeal will not be granted save in obvious cases where the party seeking leave convinces the court there are strong grounds upon which the court could find that the judge erred in exercising his discretion: Carroll v. McEwan, 2018 ONCA 902, 34 M.V.R. (7th) 1, at paras. 58-59, application for leave to appeal to S.C.C. pending, 38514 (February 4, 2019) [discontinued (March 4, 2019)].

[6] This approach is consistent with this court’s earlier ruling in McNaughton Automotive Limited v. Co-operators General Insurance Company, 2008 ONCA 597, 95 O.R. (3d) 365, at paras. 23-27, applying the dictum of Arbour J. in Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27, where she held that “[a] court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong.”

The Factual and Procedural Context

[7] Mr. Auciello applied to 3877337 Canada Inc. for mortgage refinancing for two properties owned by and registered to Network Cash Mart Ltd. (“Network”). Before becoming a part of CIBC Mortgages Inc., 3877337 Canada Inc. was a subsidiary of CIBC carrying on business as Home Loans Canada (“Home Loans”), a mortgage broker that arranged mortgages between its clients and financial institutions other than CIBC. Home Loans recommended Home Trust Company (“Home Trust”) as a potentially suitable lender.

[8] Home Trust was prepared to offer a mortgage of $600,000 based on an appraisal value of $1.2 million. The property value of $1.2 million was based on Mr. Auciello’s initial assessment. Mr. Auciello completed a mortgage application and executed a Commitment Letter on Home Trust letterhead. Network was listed as the mortgagor, Mr. Auciello as guarantor. Home Trust reserved the right to terminate the Commitment or decline to advance all or part of the mortgage until the conditions of the Commitment were satisfied.

[9] Mr. Auciello was unable to satisfy the conditions in the Commitment Letter, particularly the requirement to obtain an appraisal of the properties reflecting a minimum value of $1.2 million. Two appraisers refused to do the appraisal because they advised that Mr. Auciello’s valuation of $1.2 million was unrealistic. Ultimately, the appraised value of the properties was $600,000 (as is) or $665,000 (as if complete). On this basis, Home Trust drafted a second Commitment Letter, offering a mortgage of $390,000, with various conditions, including a holdback of $50,000 until renovations were complete. Mr. Auciello did not accept the second Commitment Letter. The financing did not proceed and the terms of the first Commitment Letter – the valuation of the property at $1.2 million – were not fulfilled.

[10] Mr. Auciello sued the defendants for damages in the amount of $100,000 for breach of contract, bad faith, intentional and unlawful interference with economic relations, breach of duty of good faith, irreparable harm to business reputation, loss of business and loss of business opportunity; $50,000 for mental and emotional distress; and $25,000 for aggravated and punitive damages against each defendant.

[11] Home Loans and Home Trust brought a motion for summary judgment against Mr. Auciello. By judgment dated April 25, 2017 Brown J. allowed the motion for summary judgment and dismissed Mr. Auciello’s action: 2017 ONSC 2360.

[12] The motion judge determined that any wrongs done to the owner of the property, if such wrongs could be found, and any damages flowing from such wrongs, were owing to the property’s owner, Network, and not to Mr. Auciello, who had no personal cause of action. Further, in her view there was no evidence, in the form of additional appraisals or otherwise, to suggest the appraised value of $600,000 rather than $1.2 million was wrong. Neither defendant had an obligation to provide the loan amount Mr. Auciello sought since the appraised value was insufficient.

[13] The motion judge invited costs submissions in writing to be filed within 30 days. The responding parties, Home Loans and Home Trust, filed submissions in April and May 2017. Mr. Auciello filed a costs submission but did not serve it on the responding parties (just as he did not serve his reply factum on this motion for leave). He later responded to an e-mail exchange between counsel for Home Loans and Brown J.’s judicial assistant on August 18, 2017 stating that he “did in fact send a short cost submission close to the 12th hour subsequent Ms. Jackson’s 11th hour submission”.

[14] Mr. Auciello then pursued his appeal of Brown J.’s summary dismissal. This court dismissed his appeal on April 19, 2018 and awarded costs against him in the amount of $5,000 to each respondent: 2018 ONCA 377.

[15] Counsel for Home Trust inquired about Brown J.’s unreleased costs decision on June 21, 2019. By e-mail dated August 19, 2019 Brown J.’s judicial assistant stated: “Madam Justice Brown advises that the matter of costs has not been dealt with in this matter. She welcomes any submissions you have to make in that regard and you may fax same to [the court]. She will consider all submissions”. This e-mail was sent to the parties, including Mr. Auciello.

[16] Brown J. issued her costs decision on October 1, 2019 stating that her delay in attending to costs “was an oversight”: 2019 ONSC 5637. Noting that Mr. Auciello initially sought $175,000 in damages, she awarded partial indemnity costs in the respective amounts of $23,420.82 (Home Loans) and $24,743.22 (Home Trust) to the responding parties. She noted that Mr. Auciello’s conduct had lengthened the proceeding and that some of the issues were complex and overlapping. She also noted that Mr. Auciello did not provide costs submissions. (His original costs submission was a simple plea that the costs requests were too high: “Just too high a price to pay!!!!”).

[17] In his factum for leave to appeal costs, Mr. Auciello took the following positions:

• Brown J. erred in characterizing the two-and-a-half year delay between issuing her decision and the costs endorsement as an “oversight”.

• He had filed short, handwritten costs submissions in the eleventh hour before the 30-day time limit for costs submissions expired.

• Brown J. could not order costs years after she rendered her decision because the deadline for costs submissions had expired. Moreover, awarding costs after so much time had elapsed was unreasonable and placed him in a situation of financial instability.

• The costs award was not an “oversight” but rather a “sneak attack” initiated by opposing counsel’s staff.

• He was overwhelmed by health issues (he suffered a concussion on October 7, 2017 and was hospitalized in early 2018) and technological difficulties causing him to create multiple email accounts, thereby failing to receive some electronic communications from the court.

• He had appealed from Brown J.’s decision regarding the summary judgment motion. It was unethical and unreasonable for the defendants to seek costs after that appeal had been heard.

[18] Mr. Auciello’s reply factum largely repeats these positions and adds nothing new.

Analysis

[19] Mr. Auciello’s original submission that the responding parties’ requests were just too high is a submission losing parties often make, but the costs decision is conventional in its expression and the amounts awarded in light of the amount at issue are not obviously disproportionate. Mr. Auciello points to no error in principle or in fact that influenced the result.

[20] Mr. Auciello submits that the delay in and of itself causes him an injustice. However, initiating the machinery of the civil justice system as he did does not come cost free to those who do so, as he well knows.

[21] Nothing in this case has proceeded with alacrity. The request for the mortgage refinancing was made in January 2010. The lawsuit was started in January 2012. An Amended, Fresh as Amended Statement of Claim was served in May 2016, and the summary judgment motion was argued and decided in April 2017. The appeal was argued and decided in April 2018. When the motion judge’s oversight in not issuing the costs decision was brought to her attention in June 2019, she decided it in October 2019. Then came this motion for leave.

[22] While the delay in the motion judge’s costs decision is regrettable, that does not, of itself, raise strong grounds upon which this court could find that the motion judge erred in exercising her discretion.

[23] Mr. Auciello’s request for an adjournment is denied. Leave to appeal is denied. The moving party shall pay to each of the responding parties $1,500 in costs.

Released: “P.L.” SEP 4 2020

“P. Lauwers J.A.”

“David Brown J.A.”

“I.V.B. Nordheimer J.A.”