Canada Mortgage and Housing Corporation v. Hart, 2022 ONCA 51

Case Summary

The appellants, Melissa Hart and Patricia Hart, appealed the dismissal of their motion to set aside a default judgment obtained by Canada Mortgage and Housing Corporation (CMHC). The motion, brought under Rule 59.06(2), alleged fraud or newly discovered facts. The Court of Appeal upheld the motion judge's decision, finding that the appellants failed to act with diligence in seeking to set aside the judgment and did not provide cogent evidence to support their allegations of fraud or new facts. Previous actions by the appellant Melissa Hart based on similar facts had been dismissed as frivolous and vexatious under Rule 2.1.01.

Canada Mortgage and Housing Corporation v. Hart, 2022 ONCA 51

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220124 DOCKET: C69014

Strathy C.J.O., Harvison Young and Zarnett JJ.A.

BETWEEN

Canada Mortgage and Housing Corporation Plaintiff (Respondent)

and

Melissa Hart and Patricia Hart Defendants (Appellants)

Counsel: Melissa Hart, acting in person No one appearing for the appellant, Patricia Hart Ian Houle, for the respondent

Heard: January 18, 2022 by video conference

On appeal from the order of Justice Antonio Skarica of the Superior Court of Justice, dated November 25, 2020.

Reasons for Decision

[1] The appellant, Melissa Hart, has not demonstrated error in the motion judge’s dismissal of her motion pursuant to r. 59.06(2), seeking to set aside the respondent’s judgment against her on the ground of fraud or of facts arising or discovered after the judgment was granted.

[2] She admits that the statement of claim was served on her in September 2010. She failed to defend and default judgment was obtained in 2010. The respondent took enforcement action and various amounts were recovered from the appellant between 2012 and 2018. The appellant was aware of the judgment, but took no steps to set it aside for many years. She commenced two separate actions against the respondent in 2017 and 2018, claiming damages as a result of the enforcement of the mortgage and the judgment. Both actions, which were based on substantially the same facts as she now relies upon, were dismissed under r. 2.1.01 as frivolous and vexatious.

[3] We agree with the motion judge that the appellant failed to move with any diligence to set aside the default judgment and on that basis alone, we would dismiss the appeal. We agree however, that the appellant failed to identify any factual basis on which the judgment could be set aside on the basis of fraud or subsequently discovered facts. It is not enough to allege fraud, as the appellant repeatedly does. There must be cogent evidence to support fraud and she has adduced no such evidence.

[4] The appeal is dismissed with costs to the respondent fixed at $5,000, inclusive of disbursements and all applicable taxes.

“G.R. Strathy C.J.O.”

“A. Harvison Young J.A.”

“B. Zarnett J.A.”