Court of Appeal for Ontario

Date: 20210929 Docket: C68417

Judges: Paciocco, Nordheimer and Coroza JJ.A.

Between:

Dominic Perodeau and Scarlett Perodeau Appellants

and

TD Canada Trust and TD Insurance Respondents

Counsel:

Dominic Perodeau, acting in person Jeffrey Kukla, for the respondent TD Canada Trust Arie Odinocki, for the respondent TD Insurance

Heard: On September 3, 2021 by videoconference

On appeal from: The order of Justice Sylvia Corthorn of the Superior Court of Justice, dated March 11, 2020.

Reasons for Decision

[1] The appellants, Dominic Perodeau and Scarlett Perodeau appeal a summary judgment order dismissing an action they commenced on January 22, 2018, against the respondents, Toronto-Dominion Bank (“TD Bank”) and Primmum Insurance Company (“Primmum”). [1] The appellants also seek leave to appeal the substantial indemnity costs orders made against them. For the reasons that follow, both the summary judgment appeal and the costs appeal are dismissed.

[2] The essential facts are these. TD Bank held the charge (“mortgage”) on the appellants’ property, 386 Queensborough Road, RR #3 in Tweed, Ontario (“the property”). The mortgage required the appellants to insure the property. The mortgage also authorized TD Bank to secure insurance and add the costs to the mortgage payments if the appellants failed to secure insurance.

[3] The appellants acquired homeowner’s insurance from Primmum on the property, effective November 25, 2004. The Primmum policy was still in effect up to and including March 2, 2014 but the appellants defaulted on the premium payments. On February 14, 2014, Primmum sent a registered letter notifying the appellants that the policy was being terminated effective March 3, 2014 for non-payment of premiums. The appellants made no further payments on the policy and did not secure replacement insurance, which they considered to be prohibitively expensive. The appellants then managed to secure a mortgage renewal from the respondent, TD Bank, despite not having insurance in place on the property.

[4] By January 2016, the appellants defaulted on the mortgage. TD Bank demanded payment of the arrears and commenced an action for payment on the mortgage on May 18, 2016. In May 2016, the property was severely damaged by a fire. On November 14, 2017, TD Bank was granted summary judgment enforcing the mortgage debt.

[5] Two months later, on January 22, 2018, the appellants commenced the action that is the subject of this appeal in which they sought damages, a stay of TD Bank’s writ of possession on the property, and an order that they be permitted to make mortgage payments. In that action, the appellants claimed that TD Bank breached its fiduciary duty to them to caution them that they had not insured the property before renewing their mortgage. The appellants also claimed that Primmum breached a fiduciary duty it owed to the bank to ensure that the property was insured before the mortgage was renewed. In granting summary judgment in favour of the respondents, the motion judge held that no fiduciary duties were owed, that the action against TD Bank was res judicata, and that the action was statute barred against both respondents, pursuant to the Limitations Act, 2002, S.O. 2002, c. 24.

[6] The appellants, who are self-represented, raise numerous grounds of appeal against the summary judgment. However, they do not challenge the merits of the motion judge’s conclusions that no fiduciary duties exist or that their action was statute barred.

[7] First, the appellants claim that the motion judge erred by not ensuring that they were represented, given that Dominic Perodeau was a “Self Litigant”, and Scarlett Perodeau is a party under disability entitled to a litigation guardian pursuant to rule 7.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. We disagree. Litigants are presumed to be capable of conducting litigation and the appellants have not rebutted that presumption. With respect to Dominic Perodeau, a litigant is not entitled to representation simply because they are unrepresented as there is no broad general right to legal counsel in Canada (Christie v. British Columbia (Attorney General), 2007 SCC 21, [2007] 1 S.C.R. 873 at paras. 23, 26).

[8] With respect to Scarlett Perodeau, although unsworn evidence was presented to show that she suffered from mental illness, no evidence was presented to establish that she was “mentally incapable” and therefore a party under disability within the meaning of rules 1.03(1), and 7.01 of the Rules of Civil Procedure. It was the appellants’ onus to establish that Scarlett Perodeau was “mentally incapable” and to establish the extent of her incapacity if it existed (Costantino v. Costantino, 2016 ONSC 7279, [2016] O.J. No. 5963 at para. 38; Sosnowski v. Johnson, [2006] O.J. No. 3731 (Ont. C.A.), at para. 2). They failed to do so. Accordingly, the motion judge was under no obligation to see that either of the appellants were represented before her. This ground of appeal must therefore fail.

[9] Second, the appellants claim that the motion judge erred in granting summary judgment when there were shortcomings in the procedure, including the failure of the respondents to serve affidavits or produce documents, the failure of the respondents to produce witnesses for cross-examination, and the failure by the motion judge to initiate an objection to improper submissions made by counsel for TD Bank. These grounds of appeal cannot succeed. At the hearing, the appellants did not object to the motion judge proceeding to summary judgment. Nor have the appellants established that the respondents failed to serve affidavits or produce material documents or information. Indeed, the evidence before us is to the contrary. Moreover, they made no request to cross-examine the witnesses they claim the respondents failed to produce, and they have not shown that counsel for TD Bank made inappropriate submissions. We appreciate the challenges that self-represented litigants may have in navigating the legal process. However, the appellants could have avoided the conditions they now complain of by taking simple, common sense steps. We see no shortcomings in the procedures employed during the motion, or in the motion judge’s decision to proceed to summary judgment.

[10] Third, the appellants submit that the motion judge erred by failing to address their claim of “On Going Tortious Harm”, and the “Civil Interpretation of Res Judicata”. The motion judge was under no obligation to address a tortious harm claim. No such action was pled, and we see no air of reality to such claim.

[11] Nor do we agree that the motion judge erred in her treatment of the law of res judicata. Manifestly, the action against the respondents that the motion judge dismissed was an unmeritorious attempt by the appellants to delay the mortgage enforcement by relitigating the mortgage enforcement decision of November 14, 2017 that they lost. We see no error in the motion judge’s res judicata analysis. Her reasons are legally accurate, clear, and supported. Even if the motion judge had erred in her treatment of the law of res judicata, that error would be moot since the appellants have not appealed her conclusion that the action is statute barred and that no fiduciary relationship existed. Each of those conclusions, on their own, defeat the appellants’ action, even if the action had not been res judicata.

[12] Since none of the grounds of appeal relating to either respondent have been made out, the appeal is dismissed.

[13] With respect to the application for leave to appeal costs, the appellants have sought to present fresh evidence of an offer they made to settle. That fresh evidence is not admissible because it can have no bearing on the correctness of the costs award. The respondents achieved greater success through the judgment than they would have achieved had they accepted the settlement offer.

[14] We therefore grant leave to the appellants to appeal the costs order, but that appeal is also dismissed.

[15] Costs on the appeal are granted respectively to TD Bank in the amount of $13,138.15, and Primmum in the amount of $10,607.58. Both costs awards are inclusive of disbursements and applicable taxes.

“David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “S. Coroza J.A.”

[1] Primmum is mistakenly designated in the style of cause in this appeal as TD Insurance.