Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20211025 DOCKET: C68783
Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J. (ad hoc).
BETWEEN
Jo-Ann Bodnar Plaintiff (Appellant)
and
The Estate of Peter Boban, deceased Defendant (Respondent)
Counsel: Michael Cupello, for the appellant Natalie J. Gerry, for the respondent
Heard: October 18, 2021 by videoconference
On appeal from the judgment of Justice T.J. Nieckarz of the Superior Court of Justice, dated March 25, 2020.
Reasons for Decision
[1] The appellant, Jo-Ann Bodnar, appeals an order for summary judgment dated March 25, 2020 in favour of the respondent, the Estate of Peter Boban, in the amount of $274,762 in respect of an outstanding mortgage. The motion judge held that there was no genuine issue requiring a trial regarding the amount owing under the mortgage and granted judgment accordingly. The dispute between the parties pertained to the interest rate due under the mortgage.
[2] On February 15, 1991, Peter Boban loaned the appellant the sum of $86,933 subject to 14% interest secured by a mortgage against a home owned by the appellant. The mortgage contemplated monthly payments fixed at $1,100 and was payable on the second anniversary date. It was not repaid on that date and remained outstanding. Peter Boban passed away in 1997. The respondent Estate asserted that the terms of the original mortgage were extended unamended every three years commencing February 15, 1993.
[3] The appellant claims that Peter Boban had agreed with her husband, Ian Bodnar, on her behalf on or about February 1993 that the mortgage would be renewed every three years at an interest rate of prime plus 4%. She also alleges the respondent agreed with Ian Bodnar to an increase in monthly payments to $1,600 in consideration of continuation of the alleged interest rate of prime plus 4%.
[4] In July 2017, the appellant sold the home secured by the mortgage. She commenced this action in January 2018 seeking a declaration, among other things, that the mortgage had been paid in full and that she was entitled to the proceeds of sale of the house as well as an amount by way of overpayment. The respondent alleges that the mortgage remains outstanding and counterclaims for the amount it calculates to be outstanding plus continuing interest at 14%.
[5] In granting summary judgment in favour of the respondent, the motion judge rejected two arguments raised by the appellant. Most significantly, the motion judge held that there was no triable issue regarding the existence of an oral agreement that interest was to accrue at prime plus 4%. The motion judge also held that there was no triable issue regarding alleged acts of part performance that would preclude operation of the Statute of Frauds if any evidence existed of the alleged oral agreement. In reaching that conclusion, the motion judge also rejected the appellant’s assertion that promissory estoppel operated, finding that part performance was the more appropriate issue but, in any event, that there was no proof of either a representation or detrimental reliance.
[6] Before this court, the appellant does not argue that the motion judge erred in finding that there was no triable issue regarding the existence of the alleged oral interest rate agreement. Instead, the principal claim of the appellant is that the respondent had agreed to limit its remedies on default to foreclosure. She bases this position on legal consequences alleged to flow from a mortgage action commenced by Peter Boban in 1996 and certain consents signed by the parties in 1997 and 1998. The appellant submits that the respondent could not resile from that agreement after 2015 and assert a claim for the outstanding balance including interest accrued at 14%.
[7] However, the evidence upon which the appellant relies for this position establishes no more than that the appellant agreed that the respondent could foreclose if she defaulted in making payments. There is no evidence supporting the view that the respondent agreed that it would foreclose, much less that it would limit its remedies to foreclosure. No purpose would therefore be served by ordering a trial of this issue.
[8] In her factum, the appellant also raises two related grounds of appeal.
[9] First, she submits that the motion judge erred in law in failing to consider the application of the doctrines of issue estoppel, cause of action estoppel and abuse of process. She bases these claims on the 1996 mortgage action and the subsequent consents.
[10] Second, she alleges that the motion judge failed to apply the doctrine of laches in respect of the defendant’s failure to proceed with foreclosure proceedings, which the appellant alleges resulted in actual prejudice to her.
[11] In addition, the appellant submits that the motion judge made a palpable and overriding error in inferring that the payments of $1,100, contemplated by a consent dated November 4, 1998, and of $1,600, which she began making in November 2000, were sufficient to eventually pay off the mortgage. She alleges this error was material to the motion judge’s determination that there was no triable issue regarding the existence of the alleged oral agreement to pay interest at prime plus 4%.
[12] None of the foregoing arguments were set out in the appellant’s pleadings in this action nor were they argued before the motion judge. In particular, while the motion judge referred to, and rejected, the appellant’s argument that there is presently no mortgage to enforce, that is a substantively different argument from the appellant’s position on this appeal that the respondent had agreed to limit its remedies on the outstanding mortgage to foreclosure.
[13] These new arguments can only be raised with leave of the court: Kaiman v. Graham, 2009 ONCA 77 at para. 18. The decision of whether to grant leave to allow a new argument is a discretionary decision to be guided by the balancing of the interests of justice as they affect all parties. The general rule is that appellate courts will not entertain entirely new issues on appeal. The rationale for the rule is that it is unfair to spring a new argument upon a party at the hearing of an appeal in circumstances in which evidence might have been led at trial if it had been known that the matter would be an issue on appeal: Kaiman v. Graham at para. 18 citing Ontario Energy Savings L.P. v. 767269 Ontario Ltd., 2008 ONCA 350, at para. 3.
[14] The first two of these arguments, together with the appellant’s principal argument on this appeal, are based on circumstances that differ profoundly from the alleged oral agreement regarding the applicable interest rate asserted in the appellant’s pleadings. It would be contrary to the interests of justice in this case to entertain the appellants’ new arguments. No explanation was provided for the appellant’s failure to raise these arguments before the motion judge. The court will not grant leave in the absence of a reasonable explanation for the reason where, as in this case, the respondent may be prejudiced by an inability to adduce evidence that would address these new arguments. The appellant is unable to persuade the court that “all the facts necessary to address the point are before the court as fully as if the issue had been raised at trial”: see Ross v. Ross (1999), 1999 NSCA 162, 181 N.S.R. (2d) 22 (C.A.), at para. 34, per Cromwell J.A.; Ontario Energy Savings at para. 3.
[15] In any event, the first two of these arguments, together with the appellant’s principal argument on this appeal, also fail for lack of supporting evidence as discussed above.
[16] With respect to the third argument, we do not read the motion judge to be drawing an inference of fact regarding the financial significance of the mortgage payments. Nor is there any material significance to the alleged inference for the motion judge’s determination that the alleged oral agreement respecting interest did not occur.
[17] Accordingly the appeal is dismissed with costs payable to the respondent in the agreed amount of $10,000 inclusive of disbursements and all applicable taxes.
“G.R. Strathy C.J.O.” “B. Zarnett J.A.” “Wilton-Siegel J.”