COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Imperial Bank of Commerce v. Sutherland, 2022 ONCA 426

DATE: 20220530

DOCKET: C70069

BEFORE: Benotto, Zarnett and Copeland JJ.A.

BETWEEN

Canadian Imperial Bank of Commerce

Plaintiff (Respondent)

and

Stephen B. Sutherland also known as Stephen Beals Sutherland also known as Stephen Sutherland also known as Stephen B. Sutheland

Defendant (Appellant)

COUNSEL:

Stephen B. Sutherland, acting in person

Ron Aisenberg, for the respondent

HEARD: May 13, 2022 by videoconference

On appeal from the judgment of Justice Clayton Conlan of the Superior Court of Justice, dated October 20, 2021, with reasons reported at 2021 ONSC 6980.

REASONS FOR DECISION

[1] The appellant appeals from the motion judge’s decision to grant summary judgment in favour of the respondent.

[2] The respondent’s claim related to three unsecured debts in the name of the appellant – a personal line of credit and two credit cards. The claim alleged that the appellant failed to make payments in accordance with the credit agreements. As of the date of the summary judgment motion, the amount owing totalled approximately $172,000.

[3] Separate from the personal line of credit and the two credit cards, the respondent held a first mortgage on a cottage owned by the appellant to secure a different line of credit. The appellant had two other mortgages on that cottage, held by third-party mortgagees. Ultimately, the respondent assigned its mortgage on the cottage to the third-party mortgagees.

[4] In November 2020, the respondent commenced an action for non-payment of the line of credit and the two credit cards.

[5] In response, the appellant filed a defence and counterclaim pleading facts related to the mortgages on his cottage. The statement of defence and counterclaim pleaded that the third parties who held the second and third mortgages on the cottage improperly took possession of it and sold it. It further pleaded that the respondent had “aided an abetted” the third-party mortgagees by “hiding” the fact that it had assigned its mortgage to the third-party mortgagees.

[6] On May 20, 2021, Chozik J. granted a motion by the respondent to strike portions of the appellant’s statement of defence and to strike his counterclaim in its entirety. The portions of the defence that pertained to the third-party mortgagees were struck on the basis that the issues relating to the cottage mortgages were unconnected to the personal line of credit and two credit cards at issue in the respondent’s claim. The counterclaim was struck because it did not disclose a cause of action against the respondent. No appeal was taken from the order of Chozik J.

[7] The respondent subsequently brought a motion for summary judgment. The motion was not reached on the first date it was schedule to be heard. In his endorsement adjourning the hearing of the summary judgment motion, Chown J. advised the appellant that his motion materials appeared to raise two arguments that had not been pleaded. Chown J. further advised the appellant that he may need to amend his statement of defence if he wished to make those arguments, and that if he did not seek to amend his statement of defence, he may be hampered in his ability to respond to the motion for summary judgment. The appellant did not seek to amend his pleadings.

[8] In his reasons, the motion judge reviewed the chronology of the claim and counterclaim. He noted that the appellant did not contest the existence of the line of credit and two credit cards in his name, his liability for the amounts owed, or the calculation of the amount owing. Therefore, the motion judge found that there was no genuine issue requiring a trial. In coming to this conclusion, the motion judge adverted to the appellant’s submission that the respondent ought to have enforced its security interest in his cottage in order to collect the money owing on the line of credit and two credit cards, rather than assign the mortgage to the third-party mortgagees. However, the appellant accepted that the respondent was not legally required to proceed in that manner. In light of the fact that the appellant’s pleadings asserting these arguments had been struck, and the motion judge’s conclusion that there was no legal obligation on the respondent to proceed in the manner advocated by the appellant, these submissions did not change the conclusion of the motion judge that there was no genuine issue requiring a trial.

[9] We see no error in the reasons of the motion judge. He properly directed himself to the issue on a summary judgment motion of whether there is no genuine issue requiring a trial. In light of the fact that the appellant accepted the existence of the line of credit and the two credit cards and the calculation of the amount owing, and the reasonable finding of the motion judge that there was no live defence as a result of the decision of Chozik J. on the pleadings motion, we see no error in the motion judge’s decision to grant summary judgment in favour of the respondent.

[10] Before this court, the appellant renewed his argument that because he was a long-time customer of the respondent, it ought not to have assigned its mortgage on his cottage to the third-party mortgagees, but rather should have enforced its security interest in the cottage in a manner that allowed him to extinguish the debts at issue in this matter. However, he did not dispute the respondent’s legal entitlement to assign the mortgage. The issues related to the cottage were no longer live in the action with the respondent once the appellant’s counterclaim and much of his defence were struck. But in any event, the appellant’s desire that the respondent would have proceeded differently because he was a long-time customer does not create a triable legal or factual issue in this action.

[11] The appeal is dismissed with costs of $2,500, all inclusive, payable to the respondent.

“M.L. Benotto J.A.”

“B. Zarnett J.A.”

“J. Copeland J.A.”