CITATION: Toronto-Dominion Bank v. Hazzouri, 2023 ONSC 438
DIVISIONAL COURT FILE NO.: 500/21
DATE: 20230118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Heeney, Backhouse, Gibson JJ.
BETWEEN:
SAMIR HAZZOURI
Appellant
– and –
TORONTO-DOMINION BANK
Respondent
Unrepresented
Christina Internicola
HEARD by videoconference in Brampton on March 9, 2022
BY THE COURT
[1] The Appellant filed a Notice of Appeal in which he sought to have the summary judgment order of Justice Chozik dated June 16, 2021 for $43,626.34, interest at the rate of 24.9% and $5000 in costs set aside and the case set down for trial.
[2] The Appellant did not perfect the appeal and did not attend the hearing of this appeal. The grounds set out in the Notice of Appeal were that he did not receive the motion material until 14 days before the motion which was not enough time to prepare a legal defence and forced him to represent himself.
[3] The Respondent submits that the Appellant was served on April 3, 2021 at an address provided by the Appellant in his statement of defence which service is confirmed by an affidavit of service in the record.
[4] The Motion Judge found that the Appellant admitted on the motion to owing the money which he submitted that he could not afford to pay and used to pay his mortgages. The Motion Judge was satisfied that he owed the money on the documentary evidence before her and found that what he used the money for was irrelevant. She held that inability to pay is not a defence to the action and granted summary judgment.
[5] The Respondent’s factum averts to the Appellant’s argument before the Motion Judge that the interest rate was higher than he consented to. The Motion Judge found that he owed interest at 24.9% as set out in the documentary evidence.
[6] There is nothing before us to establish that the Appellant requested an adjournment of the motion or that he attempted but was unable to retain counsel after he received the documents. Even assuming that the Appellant did not receive the motion material until 14 days prior to the motion, it would not be unreasonable to expect the Appellant to be prepared to proceed in that timeframe in the absence of specific circumstances brought to the Motion Judge’s attention.
[7] There is no basis to set the order aside. The Appeal is dismissed with costs fixed in the all inclusive amount of $3000 .
Heeney J.
Backhouse J.
Gibson J.
Released: January 18, 2023
DIVISIONAL COURT FILE NO.: 500/21
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Heeney, Backhouse, Gibson JJ.
BETWEEN:
Samir Hazzouri v.Toronto-Dominion Bank
REASONS FOR JUDGMENT
Released: January 18, 2023