Court of Appeal for Ontario

Date: 2025-05-01
Docket: C69803

Before: Peter Lauwers, Benjamin Zarnett, Robyn Pomerance

Between

Sheila McKenzie-Barnswell
Plaintiff (Respondent)

and

Xpert Credit Control Solutions Inc., Right Choice Builders Inc. and Sam Joshi also known as Sanjive Joshi
Defendants (Appellants)

Counsel:
Jeff Rosekat and Vanessa Ford, for the appellants
Olando Vinton, for the respondent[^1]

Heard: September 19, 2024

Supplementary reasons to the judgment in McKenzie-Barnswell v. Xpert Credit Control Solutions Inc., 2025 ONCA 253, released on April 4, 2025.

Addendum

[1] Further to the decision released on April 4, 2025, the following clarifications form part of the formal reasons of the court.

[2] The first issue concerns the rate of post-judgment interest attaching to monies owed by the respondent to the appellant Xpert Credit. Given the appellant Sam Joshi’s wrongful conduct as the directing mind of Xpert Credit as found by the trial judge and affirmed on appeal, and her finding that the mortgage was unconscionable, Xpert Credit is not entitled to post-judgment interest at the rate stipulated in the mortgage. Rather, post-judgment interest shall be calculated at the rate stipulated in the Courts of Justice Act, R.S.O. 1990, c. C.43, commencing on April 4, 2025, the date of the appeal judgment.

[3] Second, there is no basis for interfering with the costs award made by the trial judge. She awarded costs to the respondent on a substantial indemnity basis, in the amount of $286,250 plus disbursements of $12,708.34: a total of $298,958.34. On appeal, this court set aside the remedy ordered by the trial judge, finding that the mortgage should be severed to distinguish amounts legitimately owed by the respondent to the appellant Xpert Credit. However, this court affirmed the critical findings made by the trial judge, namely, that the appellant Mr. Joshi fraudulently induced the respondent to enter into a construction contract and further, induced her to enter into unconscionable mortgage agreements. On this basis, the costs award in the court below will stand undisturbed.

[4] Third, the costs award made against the appellants shall be set off against monies owed by the respondent to the appellant Xpert Credit. It was determined on appeal that the respondent owes that appellant $319,000, reflecting her legitimate indebtedness under the mortgage contract. The appellants jointly and severally owe the respondent costs in the amount of $298,958.34. Setting off the costs award, the respondent owes the appellant Xpert Credit $20,041.66.

[5] Fourth, the mortgage, having been the product of an unconscionable transaction, shall not be re-registered on title.

[6] Finally, monies paid by the appellants into court as security for the costs of the appeal are to be paid out, together with any accrued interest, to their lawyers, Dickinson Wright LLP, in trust.

“P. Lauwers J.A.”
“B. Zarnett J.A.”
“R. Pomerance J.A.”

[^1]: Mr. Vinton represented the respondent at the hearing on September 19, 2024. He did not make submissions in relation to this addendum. The respondent made her own submissions.