COURT FILE NO.: CV-10-0458-SR DATE: 2012-11-01

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

BRUNA MONTEMURRO Plaintiff

• and -

ROSANNA JARDIM and SERGIO JARDIM Defendants

COUNSEL: Mark E. Alter, for the Plaintiff Robert Fernandes, for the Defendants

HEARD: May 16, 2012, at Brampton, Ontario

BEFORE: Price J.

Reasons For Order

NATURE OF MOTION

[1] Rosanna and Sergio Jardim separated on March 11, 2009, after an eighteen and a half year marriage.

[2] Until they separated, the Jardims lived together at 92 Sedgewick Circle, Brampton (“Sedgewick Circle”). In 2005, they transferred title to the property to Ms. Jardim’s mother, Ms. Montemurro, as security for a loan she made to them by mortgaging her own home. Ms. Montemurro was to hold the property in trust for the Jardims until they repaid their loan, whereupon she was to transfer the title to the property back to them. When they failed to repay their loan, Ms. Montemurro sold Sedgewick Circle and repaid her mortgage from the proceeds of sale. She now moves for summary judgment for the balance of the sale proceeds, amounting to $58,516.87, which are being held in trust by the lawyer who acted on the sale.

[3] Mr. Jardim opposes Ms. Montemurro’s motion, arguing that there are genuine issues for trial, including whether Ms. Montemurro breached her duties as a trustee to him. In particular, he alleges that Ms. Montemurro:

a) failed to notify him when the amounts she held in trust for Mr. and Ms. Jardim were no longer sufficient to maintain Sedgewick Circle;

b) delayed selling Sedgewick Circle for more than nine months, thereby causing unnecessary expenses to be incurred to maintain it;

c) sold Sedgewick Circle hastily and improvidently, resulting in a loss to him that should be set off against the expenses she says she incurred for his and Ms. Jardim’s benefit, including the expenses associated with the sale of the property.

[4] The court must decide whether it would be unfair to grant summary judgment to Ms. Montemurro for the balance of the proceeds of sale of Sedgewick Circle without first having a trial to determine whether she breached her trust duties to Mr. Jardim and thereby caused a loss to him that should disentitle her to a portion of the proceeds or be set off against any amount she is entitled to receive. In doing so, the court must decide whether Mr. Jardim, in failing to tender evidence that Sedgewick Circle was sold for less than it was worth, failed to discharge the onus on him on a motion of this kind, to establish that his allegation that the sale was improvident raises a genuine issue for trial.

BACKGROUND FACTS

[5] Mr. Jardim is 43 years old. Ms. Jardim is 47. They were married on September 1, 1990.

[6] In 2000, the Jardims bought Sedgewick Circle, which became their home. By 2005, they were having financial difficulties and their mortgages were in default. They approached Ms. Montemurro, who agreed to borrow $115,000.00 for them, an amount equal to the remaining equity in the Jardim’s home. The Jardims and Ms. Montemurro intended the loan to enable the Jardims to pay off their mortgages and some personal debts, and to pay some other expenses they wished to incur. Ms. Montemurro mortgaged her own home as security, and the Jardims transferred Sedgewick Circle to her as security for what was, in effect, a loan from her to them.

[7] The parties agreed that the $115,000.00 which Ms. Montemurro borrowed would be deposited into the Jardims’ bank account, and that they would transfer $70,000.00 of those funds to Ms. Montemurro, who in turn would deposit $40,000.00 into a savings account and $30,000.00 to a mortgage account which she opened at her bank.

[8] The Jardims and Ms. Montemurro agreed that the Jardims would continue to reside at Sedgewick Circle and would deposit monthly amounts from their pay cheques into the mortgage account for the monthly payments required on Ms. Montemurro’s mortgage, and would also pay all other expenses associated with Sedgewick Circle. Because Ms. Montemurro spent much of the year in Italy, she gave Ms. Jardim signing authority for the two accounts, in case any banking needed to be done while she was away.

[9] Ms. Montemurro and the Jardims signed a trust agreement by which they agreed that Ms. Montemurro was the bare trustee of Sedgewick Circle and that, until she transferred title back to the Jardims, they would pay all expenses on the house and would indemnify Ms. Montemurro for any expenses she incurred on their behalf. Ms. Montemurro would transfer the title to Sedgewick Circle back to the Jardims once they paid off the mortgage she had given on her home as security for the loan she had taken out on their behalf.

[10] Mr. and Ms. Jardim did not deposit their pay cheques to Ms. Montemurro’s mortgage account as they had agreed to do. They both suffered health problems and stopped working for a period of time. Mortgage payments continued to be made from the mortgage account, until the $70,000.00 that had been deposited to that account and the savings account was depleted. Mr. and Ms. Jardim then began making deposits to the mortgage account from their own resources.

[11] Mr. and Ms. Jardim separated on March 11, 2009, when police arrested Mr. Jardim on a criminal charge of threatening his wife. The charge was later dismissed on January 18, 2010, after a one-day trial. Following Mr. and Ms. Jardim’s separation, Mr. Jardim lived with his sister at 31 Cadillac Crescent in Brampton.

[12] Ms. Jardim began a family law proceeding against Mr. Jardim by an Application issued in the Ontario Court of Justice on July 14, 2009, in which she claimed a restraining order against Mr. Jardim, custody of the parties’ two children, and child support. Ms. Jardim’s Application was served on Mr. Jardim at his sister’s residence at the end of July. He delivered an Answer on September 30, 2009, in which he claimed custody of the children or access to them.

[13] Mr. and Ms. Jardim attended a Case Conference at court on October 7, 2009. After discussions between their respective lawyers, they signed a consent to a temporary order which included the following provision:

Despite the fact that this Honourable Court has no jurisdiction over property, the parties consent and agree that the matrimonial home municipally known as 92 Sedgewick Circle, Brampton, Ontario, L7A 2P6 shall be immediately listed for sale (within the next 7 days, with an agent selected by counsel at Re/Max Brampton) and sold to a neutral third party in the usual course.

[14] On October 9, 2009, Ms. Jardim’s lawyer proposed to Mr. Jardim’s lawyer that Sedgewick Circle be listed for sale with a realtor, Steve Moran, if Ms. Montemurro consented. Before this could be done, Ms. Montemurro’s lawyer advised them on November 12, 2009, that Ms. Montemurro could no longer carry the property and was listing it for sale herself.

[15] On November 19, 2009, Mr. Jardim was notified that Ms. Montemurro had listed Sedgewick Circle with a realtor, Shazad Kassam, whose wife, Teresa, was a close friend of Ms. Jardim’s. The home was sold six days later, on November 25, 2009.

[16] Ms. Montemurro has tendered an appraisal of Sedgewick Circle by Westview Appraisal which was prepared a day after the Agreement of Purchase and Sale was signed. Mr. Jardim argues that she obtained the appraisal to make it appear that she had sold the property for market value when, in fact, she had not.

[17] The realty taxes on Sedgewick Circle had not been paid for three years and arrears in the amount of $11,960.38 had accumulated. Ms. Montemurro paid those taxes and the mortgage payments that were due, although the parties’ agreement required the Jardims to make these payments. The taxes amounted to $14,204.71 on the closing date and the mortgage payments amounted to $18,335.00. Ms. Montemurro states that she also paid for the hot water tank rental, security system, and property insurance on Sedgewick Circle, the cost of her appraisal, and the cost of repairs needed to make the property fit for sale.

[18] Ms. Montemurro began the present action by Statement of Claim on February 3, 2010. Mr. Jardim filed his Statement of Defence on May 10, 2010. The court heard Ms. Montemurro’s motion for summary judgment two years after Mr. Jardim delivered his Statement of Defence.

ISSUES

[19] The issue for the court is whether Mr. Jardim’s claim that Ms. Montemurro breached her duty to him and sold Sedgewick Circle improvidently, for less than it was worth, raises a genuine issue for trial. In making this determination, the court must decide whether Mr. Jardim, in failing to prove that Sedgewick Circle was, in fact, worth more than the price at which Ms. Montemurro sold it, has discharged the evidentiary burden on a respondent to a motion for summary judgment, to show that his defence raises a genuine issue for trial.

PARTIES’ POSITIONS

[20] There is no dispute that when Mr. and Ms. Jardim signed the trust declaration and transferred Sedgewick Circle to Ms. Montemurro, they agreed to indemnify her for the expenses she incurred on their behalf. Ms. Montemurro asserts that the expenses she incurred, as well as loans she made to the Jardims, in the amount of $4,000.00, to enable them to up-grade their appliances, and $8,000.00, to enable them to up-grade their floors, exceeded the amount now being held in trust.

[21] Mr. Jardim asserts that the $4,000.00 and $8,000.00 which he and his wife received from Ms. Montemurro and her common law husband were gifts. He further states that Ms. Montemurro, as trustee for the Jardims’ funds, breached her duty when she gave Ms. Jardim access to those funds through a Power of Attorney she signed in relation to the accounts to which the funds were deposited. Mr. Jardim further asserts that Ms. Montemurro, as trustee for the Jardim’s interest in Sedgewick Circle, had a duty to keep him informed of developments affecting his interest in that property.

[22] Mr. Jardim submits that if the mortgage on Sedgewick Circle went into default after he separated from Ms. Montemurro’s daughter, Ms. Montemurro should have informed him of this immediately instead of waiting over nine months before listing the property for sale, and then selling it without input from him. While Ms. Montemurro asserts that she could not have informed Mr. Jardim of developments because she did not know where he was living, Mr. Jardim urges the court to infer that she did know his whereabouts, based on the following:

a) Ms. Montemurro lived only two houses from Sedgewick Circle;

b) Ms. Jardim knew that Mr. Jardim was living with his sister because she caused her application to be served on him there.

c) Ms. Jardim admits having discussed Mr. Jardim’s whereabouts with Ms. Montemurro.

[23] Mr. Jardim notes that Ms. Montemurro had given her daughter, but not him, signing authority for the two accounts at her bank. He submits that this deprived him of knowledge that Ms. Montemurro and her daughter had, as to what deposits had been made to the accounts, what withdrawals had been made from them, and what money remained for making the mortgage payments.

[24] Mr. Jardim also asserts that Sedgewick Circle was sold improvidently. He disputes the impartiality of Mr. Kassam, the realtor whom Ms. Montemurro hired, over his objection, to sell it. He states that the home could have been sold at a higher price had a more impartial sale been undertaken by a neutral agent, and had more thorough marketing been done, with solicitation of multiple offers. While he has no expert evidence to support his assertion that the home was sold for less than it was worth, he submits that the way in which the sale was conducted shifts the burden of proof to Ms. Montemurro to establish that the price was commensurate with market value. He should be given an opportunity, at least, to have the house independently appraised.

ANALYSIS AND EVIDENCE

a) General principles applicable to motions for summary judgment

Legislative Provisions

[25] Rule 20.01 of the Rules of Civil Procedure[^1] allows a plaintiff who has received a statement of defence to move with supporting affidavit material for summary judgment on all or part of the claim. Rule 20.04 (2.1) provides that, in determining, on such a motion, whether there is a genuine issue requiring a trial, the court may weigh the evidence, evaluate the credibility of deponents, and draw reasonable inferences from the evidence, unless it is in the interest of justice for such powers to be exercised only at trial.

Jurisprudence

[26] The Court of Appeal for Ontario has clarified the summary judgment rule following its recent amendment. In Combined Air Mechanical Services Inc. v. Flesch,[^2] in 2011, the Court stated:

…the amended rule permits the motion judge to decide the action where he or she is satisfied that by exercising the powers that are now available on a motion for summary judgment, there is no factual or legal issue raised by the parties that requires a trial for its fair and just resolution. [Emphasis added]

However, we emphasize that the purpose of the new rule is to eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court.[^3] [Footnote omitted.] [Emphasis added]

[27] The Court of Appeal went on to state that there are three types of cases that are amenable to summary judgment:

a) Where parties agree that it is appropriate to determine an action by way of a motion for summary judgment;

b) Where a claim or defence is shown to be without merit; and

c) Where a case can be disposed of on the merits because the “interests of justice” do not require a trial.[^4]

[28] The legal burden rests on the moving party, in this case Ms. Montemurro, to show that there is no genuine issue for trial, and this burden never shifts.[^5]

[29] The court in Combined Air set out what has become known as the “full appreciation test” for when it is appropriate for the court to dispose of a case by summary judgment:

[I]n deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?[^6] [Emphasis added]

[30] The Court of Appeal indicated that the “full appreciation” test is likely to be met in cases that are largely driven by documents, in which testimonial evidence and contentious factual issues are limited,[^7] and is unlikely to be met in cases in which there are multiple factual issues involving conflicting evidence from a number of witnesses and a voluminous evidentiary record.[^8]

[31] The Court of Appeal confirmed that now, just as before the amendment, ‘[e]ach side must 'put its best foot forward' with respect to the existence or non-existence of material issues to be tried.’ On a motion for summary judgment, a party is not ‘entitled to sit back and rely on the possibility that more favourable facts may develop at trial….’[^9] As Osbourne J. stated in 1061590 Ontario Ltd. v. Ontario Jockey Club,[^10] in 1995, the responding party on such a motion may not rely on the allegations or denials in the pleadings. It must set out in affidavit material or other evidence specific facts showing that there is a genuine issue for trial.[^11]

[32] Ms. Montemurro asserts, based on the foregoing principles, that Mr. Jardim has failed to set out the necessary evidence to establish that she breached her trust duties or that Sedgewick Circle was sold for less than it was worth, since he has tendered no appraisal of the property’s value, whereas she has tendered an appraisal that supports her position that she sold the property at or near its market value. She therefore argues that he has failed to meet his onus of showing that there is a genuine issue for trial.

[33] Mr. Jardim asserts that he has been prevented from obtaining evidence to show the true value of Sedgewick Circle at the time it was sold, first by the conditions of bail imposed on him in connection with the criminal charge that was later dismissed, which prohibited him from entering upon the property, and later by Ms. Montemurro’s sale of the property to a person who is not a party to the present proceeding. In these circumstances, he argues, he should not be found to have failed to discharge the onus imposed on a respondent in a motion for summary judgment to tender evidence supporting a genuine issue for trial.

[34] The issue that arises in the present case is whether, when the court’s inability to get a full appreciation of the evidence required to make a dispositive finding as to whether Ms. Montemurro breached her trust duties by, among other things, selling Sedgewick Circle improvidently for less than it was worth, results from Mr. Jardim’s inability, up to the point when Ms. Montemurro brought her motion, to secure that evidence, the court should allow the motion based on the fact that Mr. Jardim has failed to provide that evidence, or should dismiss the motion because Ms. Montemurro has brought it before Mr. Jardim could reasonably have been expected to secure the evidence.

i. Is there a genuine issue for trial as to whether Ms. Montemurro breached her trust duties in relation to the funds paid to her?

[35] Mr. Jardin’s central objection to Ms. Montemurro’s actions was that she granted a Power of Attorney to her daughter over the bank accounts into which the proceeds of their loan had been deposited and which Ms. Montemurro was obliged as trustee to administer on behalf of both of the trust beneficiaries. Mr. Jardin’s complaint is that, following his and his wife’s separation, Ms. Jardin withdrew funds from these accounts for her own purposes, without consulting him, and thereby deprived him of any control over the funds or knowledge as to how the funds were being used. He argues that this was an impermissible delegation by Ms. Montemurro of her powers as trustee over the funds, for which she remains accountable.

[36] In McLellan Properties Limited v. Antoine Roberge and L.D. Roberge,[^12] in 1947, the Supreme Court described the limits of a trustee’s power to delegate decisions to another. The Court in that case allowed an appeal from a decision of the Ontario Court of Appeal and restored the decision of the trial judge who had decreed specific performance of an agreement which L.D. Roberge had negotiated on behalf of his son, Antoine Roberge, under a General Power of Attorney which Antoine had executed in his favour, which had the effect of delegating Antoine’s power as trustee to him. Antoine was the Estate Executor for his late mother, who had bequeathed property to him in trust for the benefit of her husband, Antoine’s father, during his lifetime and, upon his death, to distribute in accordance with the terms of her Will. Antoine, who lived in the State of Michigan, in the U.S.A., empowered his father, who was the immediate trust beneficiary and lived in Ontario, to sell a parcel of land in Ontario, pursuant to an option which was part of the mother’s estate. Antoine later, while visiting Ontario, ratified the sale agreement which his father had signed. The purchaser of the property later refused to close for the reason, among others, that the agreement was a nullity, having been entered into by the father of Antoine, who the purchaser alleged had no power to delegate the discretionary power given to him under the Will to sell the property.

[37] Estey J. delivered the reasons of Rinfret CJ and of Taschereau and Estey JJ., which describe the limits of a trustee’s power to delegate his decisions as trustee. He stated:

The appellate court... held that because what the attorney did was contrary to law, it was therefore a nullity and could not be ratified. In support of this view the appellant quotes Lewin on Trusts, 14th ed., p. 194:

If the trust be of a discretionary character, not only is the trustee answerable for all the mischievous consequences of the delegation, but the exercise of the discretion by the substitute will be actually void.

The cases cited by the learned author support the view that such an agreement negotiated only by an attorney for a trustee cannot be enforced, but they do not justify a conclusion that the word “void” should in relation thereto be used in the sense that the attorney’s act is so far a nullity that it cannot be ratified. Nor have we been referred to any authority which holds such an act to be a nullity in that sense.

The general rule that one who accepts the position of trustee undertakes to perform personally those duties requiring the exercise of his discretion is subject to certain exceptions. A trustee by the terms of his appointment may be permitted to delegate some or all of those duties. Again, if in the circumstances it would be regarded as prudent for a person in the ordinary course of business to delegate the performance of those duties, a trustee is permitted to do so: Speight v. Gaunt (1883) 9 A.C. 1.[^13]

[38] Kellock J. delivered concurring reasons for himself and Kerwin J. He stated:

While it is true that a trustee may not delegate his power to sell, I see no reason why a trustee may not authorize an agent to sign on his behalf documents such as the letters which are here in question in the course of carrying out a sale which he himself has already made. As stated in Williams On Executors, 12th ed. 598, while executors cannot contract to sell by attorney this extends merely to the discretionary act. Having once exercised such discretion they may complete the transaction by attorney. For * * * trustees and personal representatives have never been bound personally to transact such business connected with the proper duties of their office, as according to the usual course of conducting business of a like nature, persons acting with reasonable care and prudence on their own account would ordinarily conduct through agents. See also In re Hetling and Merton’s Contract (1893) 3 Ch. 269 at 280, per Lindley, L.J.[^14] [Emphasis added]

[39] The passages quoted above from McLellan Properties Limited support Mr. Jardim’s position that Ms. Montemurro, by granting a Power of Attorney to her daughter over the funds she was administering on behalf of both Mr. and Ms. Jardim, is indeed accountable for how those funds were used. The decisions over how the funds deposited to Ms. Montemurro’s accounts were to be spent were discretionary ones which Ms. Montemurro was not entitled to delegate to her daughter.

[40] Ms. Montemurro has failed to tender evidence as to whether Ms. Jardim used the funds in her accounts for her own benefit and in a manner to which Mr. Jardim would reasonably be expected to have objected. She and Ms. Jardim had access to the evidence necessary to demonstrate this; Mr. Jardim did not.

[41] The issue of whether Ms. Jardim used the trust funds in her mother’s accounts improperly can only be determined by the accounting which Mr. Jardim seeks in his Statement of Claim. Because Ms. Montemurro is accountable for the way in which the funds were used, and there is no dispute that she delegated power over the funds to Ms. Jardim alone, it was she who bears the onus to demonstrate that there is no genuine issue for trial in this regard. She has failed to discharge that onus.

[42] Additionally, Ms. Montemurro has not offered any explanation as to why she failed to notify Mr. Jardim of the deficit that had developed in the trust account used to maintain Sedgewick Circle. It is not disputed that she waited nine months from the time the funds in that account and the savings account were depleted before taking steps to sell the property. The only explanation she has offered is her hope that her daughter and son-in-law, who were the joint beneficiaries of the trust she undertook, would eventually reconcile.

[43] Ms. Montemurro, in responding to her daughter’s and Mr. Jardim’s need for funds when they experienced financial difficulty, loaned them money for which she took the title to their property as security. She was not entitled to assign the risks of her loan to Mr. Jardim without his consent. Her remedy when Mr. and Ms. Jardim defaulted on their obligations to make regular deposits to the mortgage account was the same as that which would have been available to an institutional mortgagee in the same circumstances, namely, to call her loan and sell the property.

[44] Ms. Montemurro has not established that that her right to be indemnified for the expenses she says she incurred, especially during the nine months from when the deficiency in the mortgage account occurred to when Sedgewick Circle was sold, should prevail over Mr. Jardim’s claim that she breached her duties as trustee to him. Her alleged breach of trust is a genuine issue requiring trial, as it affects both her right to indemnification for the expenses she incurred, arising from the declaration of trust she is alleged to have breached, and Mr. Jardim’s claim for damages for breach of trust, which he seeks to set off against any amounts he is found to owe her.

[45] There is also an issue for trial as to the characterization of the amounts of $4,000.00 and $8,000.00 that Ms. Montemurro and her common law husband made to Mr. and Ms. Jardim. Having regard to the matrimonial dispute that has developed between Mr. and Ms. Jardim, the court requires viva voce testimony and cross-examination of Ms. Montemurro and her husband, and of Mr. and Ms. Jardim, at trial in order to have a full appreciation of the facts.

b) Is there a genuine issue for trial as to whether Ms. Montemurro breached her trust duties to Mr. Jardim in relation to the sale of Sedgewick Circle?

i. What duty does a mortgagee owe the owner/mortgagor when selling a mortgaged property?

[46] There is a substantial body of jurisprudence to guide the court in determining whether an owner/mortgagor has satisfied the evidentiary burden it bears to demonstrate that an allegedly improvident sale of security by a mortgagee amounts to a defence or raises a genuine issue for trial. There are two facts which the mortgagor must prove in order to be successful at trial, first, that the mortgagee failed to take reasonable steps to sell the property, and second, that its failure to take those steps resulted in a loss to the mortgagor.

[47] In Siskind v. Bank of Nova Scotia[^15] in 1984, the Ontario High Court of Justice considered the claim of a second mortgagee, Mr. Siskind, against a first mortgagee, the Bank of Nova Scotia, which sold the property under power of sale. The Bank of Nova Scotia, after serving notice to Mr. Siskind, obtained two independent appraisals, one that valued the property at $117,500.00 and the other that valued it at $100,000.00. The Bank advertised the property for sale in a local newspaper and invited tenders, setting a reserve bid of $115,000.00. Two tenders were received, one for $58,000.00 and the other for $66,100.00. The bank then negotiated with one of the buyers, who submitted a further tender for $70,000.00, which was accepted at the reduced amount of $67,500.00 because the vendor was unable to give vacant possession on closing. Just before the purchase was to close, the bank received another tender for $116,000.00 but the Bank did not consider it. At the trial, the court found that this was not unreasonable, since the tender was received with a very low deposit and without a certified cheque. After the balance of the first mortgage and costs were paid, only $5,000.00 was left for Mr. Siskind. The following year, the purchaser of the property resold the property for $100,000.00.

[48] In determining whether Mr. Siskind would be successful on his claim, the court considered the role of a mortgagee with respect to subsequent encumbrancers as well as the mortgagor. The court said that a mortgagee was not a trustee for the mortgagor or a subsequent mortgagee. Hence, it was not required to wait until an advantageous time to sell. Nevertheless, in exercising its power of sale, the first mortgagee was required to act in good faith and owed a duty to obtain the true market value of the mortgaged property. The court held that although the Bank of Nova Scotia had properly proceeded by way of tender initially, it should not have negotiated an offer substantially below the appraised value and the reserved bid. Instead, it should have proceeded with further, broader advertising, or listed the property with an agent. In the circumstances, the court held that the Bank had fallen short of its duty and was liable because of what it called “willful neglect or default” within the meaning of the Mortgages Act to account to Mr. Siskind for the loss that he had suffered, which the court fixed at $15,000.00.

[49] In Bank of Nova Scotia v. Barnard,[^16] in 1984, the High Court of Justice again considered the duties of a mortgagee who sells property to recover a mortgage debt. In that case, the mortgagee had sued the owner/mortgagor for a shortfall after selling two of the owner’s properties by power of sale. The mortgagor counterclaimed for damages, arguing that the sale of the properties for less than their true value had been improvident. The court reviewed the law with respect to the obligations of a mortgagee who sells property when a mortgage is in default. It held that the mortgagee owed a duty to use reasonable care to secure the full market value and was in breach of its duty for not exposing the property for sale for a longer period. The court held that the mortgagee was liable to the mortgager for the difference between the sale price and the true market value of the properties.

[50] The Court noted that the Court of Appeal in Wood v. Bank of Nova Scotia et al.,[^17] in 1979, had left open whether the test to be applied to the conduct of a mortgagee was a stringent one based on reasonable care or a less stringent one, requiring only good faith. After reviewing a number of English cases, the court went on to say:

As indicated earlier I agree with the conclusion of Eberlej in Wood that “the mortgagee is responsible for taking reasonable care to see that a proper value for the property is obtained” or as stated by Salmon L.J. “the mortgagee is under a duty…to take reasonable precautions to obtain the true market value of the mortgaged property at the date on which he decides to sell it.”

[51] In the circumstances of the case, the court found that the Bank of Nova Scotia was in breach of its duty to take reasonable precautions to obtain the true market value at the relevant time. It noted that the bank was not required to obtain the true market value, but the bank had been negligent in listing the property below its true market value.

[52] In Oak Orchard Developments v. Iseman,[^18] in 1987, the Court of Appeal for Ontario considered a claim by a mortgagor following a sale of its property by a mortgagee under a power of sale. The sole issue was whether the mortgagee had sold the mortgaged property for an insufficient price.

[53] After reviewing the specific facts related to that case, the High Court of Justice reviewed a number of cases and Saunders J. said the following:

From all of these decisions, I extract the following propositions:

1. A mortgagee selling under a power of sale had a duty to take reasonable precautions to obtain the true market value of the mortgaged property at the date on which he decides to sell it. This does not mean that the mortgagee must, in fact, obtain the true value.

2. The duty of the mortgagee is only to take reasonable precautions. Perfection is not required. Some latitude is allowed to a mortgagee.

3. In deciding whether a mortgagee has fallen short of his duty, the facts must be looked at broadly and he will not be adjudged to be in default of his duties unless he is plainly on the wrong side of the line.

4. The mortgagee is entitled to exercise an accrued power of sale for his own purposes whenever he chooses to do so. It matters not that the moment may be unpropitious and that by waiting, a higher price could be obtained.

5. The mortgagee can accept the best price he can obtain in an adverse market provided that none of the adverse factors are due to fault on his part.

6. Even if the duty to take reasonable precautions is breached, the mortgagor must show that a higher price would have been obtained but for the breach in order to be compensated for damages.

[54] The court then applied this test to the facts the plaintiff mortgagor relied on. The court found that delay in selling the property had exposed the mortgagee to further losses. The court balanced the ultimate cost of delay against the possibility of a better offer that would off-set the cost of delay. The court held that the mortgagee did not have to wait past the time she sold in the hope that, at some point in the future, a better price might be forthcoming.

[55] In finding that the plaintiff was unsuccessful in its claim, the court acknowledged that, with the benefit of hindsight, there may have been other things that could have been done, but it was the conduct of the mortgagee at the time of the sale that had to be assessed.

ii. What evidence must a mortgagor tender to show that its claim that that the mortgagee sold the property improvidently raises a genuine issue for trial?

[56] In a motion for summary judgment, the evidence must show that there is a genuine issue for trial. While the nature of that evidence will depend on the circumstances of the case, the court generally requires evidence of both the mortgagee’s liability and the mortgagor’s damages.

[57] The court in Oak Orchard Developments v. Iseman, above, in 1987, found that the plaintiff mortgagor’s evidence did not support a finding that fuller or longer exposure would have resulted in a sale at a higher price within a reasonable time. Therefore, even if the plaintiff had established that there had been a breach of the duty required by a mortgagee on a power of sale, the plaintiff had failed to prove its damages. The Court of Appeal upheld this decision.[^19]

[58] In Shuster v. Goldberg,[^20] in 1998, the third mortgagee, Mr. Shuster, sued the second mortgagee, Henry Goldberg and his company Goldbar Financial Inc., on the basis that the property had been sold under power of sale for less than its appraised market value, with the result that there had been no funds available to pay the amount owed to the second mortgagee. The defendants, Mr. Goldberg and Goldbar Financial Inc., of which Mr. Goldberg was an officer and director, moved for summary judgment dismissing the plaintiff’s claim for damages. Epstein J., as she then was, granted summary judgment. In doing so, she relied on the principle set out in Wilf Rieck Inc. v. Gordon J. Holdings Ltd. (1994), 42 R.P.R. (2d) 311 where the court described the duty of a mortgagee as follows:

A mortgagee who sells a mortgaged premises under a power of sale has a duty to take reasonable care to ensure that a proper value is obtained for that property.

[59] The court found that, although the property was listed for sale before two appraisals were received, the listing price was consistent with the appraised values and the property sold for the highest of the two appraised values. Mr. Shuster was critical of the methods used to appraise the property and the prices that were, as a result, placed on the property. The court, however, also was critical of Mr. Shuster for not providing any evidence by way of competing appraisals to suggest that the value for sale purposes was higher than the amount for which it was sold.

[60] In Bank of Montreal v. Korico Enterprises Limited,[^21] in 2000, the Court of Appeal set aside a summary judgment granted to a bank against guarantors arising from a loan secured by a chattel mortgage. For the purposes of the motion, the bank had conceded the allegation of improvident sale, with the result that the motion against the company had been dismissed in view of Part V of the Personal Property Security Act,[^22] which required the bank, as against the principal debtor, to dispose of the secured assets in a commercially reasonable manner.

[61] The Court held that there was a genuine issue for trial in the action against the guarantors, because the bank could not rely on the clause in the guarantee agreements which the bank had drafted, which permitted the bank to deal with the securities as it saw fit, to relieve it of its common law duty to obtain a fair and reasonable price for the secured assets.

[62] In Royal Bank of Canada v. 2021847 Ontario Limited,[^23] in 2008, the Court of Appeal dismissed an appeal from summary judgment for an amount owed for the purchase of hydrofoil vessels. The only defence presented was that the receiver had conducted an improvident sale of the vessels. The defence presented no substantial evidence in support of its defence. Rather, it simply criticized the receiver’s marketing efforts as being inadequate. The Court stated:

The court can grant summary judgment where the only issue is an issue of law. There were no facts in dispute. The only issue was whether there had been an improvident sale, which is an issue of law. This is what the motion judge decided.[^24]

[63] In 1066360 Ontario Limited v. Ravells,[^25] in 2010, Wilson J. of this Court granted summary judgment to a second mortgagee for the amount owing on its mortgage. The owner/mortgagor argued that the sale by the first mortgagee had been improvident but had not joined that mortgagee as a party. The facts of that case are readily distinguishable from those of the present case. The owner/mortgagor had not joined the mortgagee that had sold the property, there was no challenge to the neutrality of the realtor, there were several appraisals of the property, and there were several offers received. In these circumstances, Justice Wilson concluded that the owner/mortgagor had not discharged the evidentiary burden on it to prove facts that gave rise to a genuine issue for trial.

Because it was not clear from the materials filed on behalf of the Defendants, I specifically asked Ms. Schuller what she believes is the genuine issue that must be resolved by way of a trial. She advised me that the property was sold for a price that was far too low and constituted an improvident sale…. The Defendants’ arguments are problematic in several respects. The onus is on the responding party to demonstrate to the court that there is a genuine issue for trial: Pizza Pizza Limited v. Gillespie et al (1990), 1990 ONSC 4023, 75 O.R. (2D) 225. While the Defendants obviously firmly believe the property was sold for less than it ought to have been, there is no reliable evidence of that before me…In any event, if the Defendants take issue with the sale price, that does not involve the Plaintiff but rather the first mortgagee, Home Trust Company. For reasons that are not clear to me, the Defendants have taken no steps to add Home Trust Company as a party to these proceedings. The defendants’ belief, and it is nothing more than that on the evidence before me, that there was an improvident sale of the property does not constitute a genuine issue for trial in the action as it is presently constituted. [Emphasis added]

[64] In Samu v. Arts,[^26] in 2004, the Court of Appeal dismissed a mortgagor’s appeal from summary judgment in favour of the mortgagees. It stated:

The appellant did not offer any evidence from anybody about the value of the property throughout the six year period it was listed. Accordingly, as the motions judge noted, the appellant did not comply with the requirement to “show that a higher price would have been obtained but for the breach in order to be compensated in damages”, a reference to the decision of the trial judge in Oak Orchard Development Ltd. v. Iseman. [Emphasis added]

[65] In Maritime Life Assurance Co. v. Cox,[^27] 2005 ONSC 3987, Fragomeni J. dismissed the plaintiff mortgagee’s motion for summary judgment dismissing the defendant owner/mortgagor’s counter-claim that it had sold the property improvidently. He stated:

The owner/mortgagor had purchased the property in 1997 for $81,507. It was sold 6 years later for $162,000. There was no evidence before the court comparing the condition of the property in 1997 and 2003 but at the time of sale, the property was in poor condition and needed extensive renovations. The property was again sold in November 2004 for $270,000. It increased in value by over $100,000 in one year. There was no evidence before the Court as to what repairs were done to the property or what its condition was in November 2004. The court questioned whether the significant increase of about 40% in one year was attributable to market forces or renovations or both, and whether the property was listed at too low a price in 2003. An appraisal and market analysis stated that it was not, but the property was only exposed to the market for 5 days and two of the offers received were for above the listing price.

[66] In Dhaliwal v. Plantus,[^28] in 2007, Nolan J., after reviewing the case law regarding the obligations of mortgagees selling property, dismissed the defendant’s claim that the sale was improvident. She stated:

The conduct should be looked at broadly as a whole. The mortgagee must act in good faith and take reasonable steps to obtain the true market value for the property at the time it is being sold. A mortgagee will only be considered to have breached his duty to act reasonably if he is “clearly on the wrong side of the line.” A mortgagee is entitled to sell for his own purposes when he chooses to do so. Every day that goes by, the amount owing to the first mortgagee and any subsequent encumbrancer increases, as does the indebtedness of the mortgagor. The mortgagee acting under a power of sale is not required to continue to carry the increasing debt for an unlimited period of time. As long as the mortgagee does not do anything to devalue the property, or create adverse factors which would result in an adverse selling market for the property, he or she can accept the best offer he or she can get. Even if the mortgagee fails to take reasonable precautions, a mortgagor or subsequent encumbrancer challenging the sale as being improvident and seeking damages as a result, must show on cogent evidence that a higher price would have been obtained but for the breach. The cases to which I was referred also make it clear that the conduct must be assessed at the time the property was put up for sale and sold. Hindsight may suggest that other steps could have been taken but that is not the test. [Emphasis added]

[67] In finding that the mortgagee had not sold the sale improvidently, Justice Nolan considered the length of time the property was listed with the Multiple Listing Service, the number of persons who saw the property without making an offer and the exchange of offers leading to the sale. She noted that the defendants had failed to provide any expert evidence as to the value they say the property was worth or evidence that a better price would not only have been possible but likely if the property was continued to be offered for sale.

iii) Has Mr. Jardim discharged the onus on him to tender evidence that Ms. Montemurro disposed of Sedgewick Circle in an improvident sale?

[68] Mr. Jardim has tendered the following evidence to establish Ms. Montemurro’s liability for breaching her duties in connection with the sale of Sedgewick Circle:

a) The property was listed, over Mr. Jardim’s objection, with a realtor whose wife was a good friend of Ms. Jardim, a circumstance that undermined the appearance of impartiality in the realtor.

b) The property was sold only five days after it was listed for sale.

c) Ms. Montemurro has not tendered any evidence as to the number of offers that were received from the time the property was listed for sale and when it was sold.

d) The only appraisal of the property was obtained a day after the Agreement of Purchase and Sale was signed.

[69] The fundamental question on this aspect of the motion, however, is whether Mr. Jardim was under a duty to tender evidence that Ms. Montemurro’s failure to take reasonable care in selling Sedgewick Circle resulted in the property being sold for less than it was worth, with a resulting loss to Mr. Jardim and his wife.

[70] In Gerlach v. AGF Trust Company,[^29] the statement of claim alleged that the defendant, as a mortgagee in possession of properties owned by the plaintiff corporation, had sold them under power of sale and failed to obtain fair market value. Because the plaintiff put forward no evidence supporting its allegation, Justice Lederman granted summary judgment dismissing this aspect of the plaintiff’s claim.

[71] A motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.[^30] The record in the present case contains only one appraisal, being the one obtained by Ms. Montemurro to show that the property was sold for close to its market value.

[72] Mr. Jardim argues that Ms. Montemurro was capable of ascertaining the value of the house at the time of sale but he was not. He had no access to the property until January 18, 2010, due to the conditions of his bail in connection with the criminal charge that was dismissed on that date. The property was sold before that date, on November 25, 2009. Still, there is no explanation for why Mr. Jardim did not apply to the court for an inspection of Sedgewick Circle, for purposes of a professional valuation of the property as of the date of sale, at any time from February 3, 2010, when the Statement of Claim was issued, or May 10, 2010, when Mr. Jardim filed his Statement of Defence, until May 16, 2012, when the motion for summary judgment was heard.

[73] The Rules of Civil Procedure[^31] provide, in part:

32.01(1) The court may make an order for the inspection of real or personal property where it appears to be necessary for the proper determination of an issue in a proceeding. R.R.O. 1990, Reg. 194, r. 32.01 (1).

(2) For the purpose of the inspection, the court may,

(a) authorize entry on or into and the taking of temporary possession of any property in the possession of a party or of a person not a party;

(b) permit the measuring, surveying or photographing of the property in question, or of any particular object or operation on the property; and

(c) permit the taking of samples, the making of observations or the conducting of tests or experiments. R.R.O. 1990, Reg. 194, r. 32.01 (2).

(3) The order shall specify the time, place and manner of the inspection and may impose such other terms, including the payment of compensation, as are just. R.R.O. 1990, Reg. 194, r. 32.01 (3).

(4) No order for inspection shall be made without notice to the person in possession of the property unless,

(a) service of notice, or the delay necessary to serve notice, might entail serious consequences to the moving party; or

(b) the court dispenses with service of notice for any other sufficient reason. R.R.O. 1990, Reg. 194, r. 32.01 (4).

[74] Mr. Jardim argued that he will apply to the court pending trial for leave to conduct an appraisal of Sedgewick Circle if the court concludes that his evidence as to the manner in which Ms. Montemurro sold the property gives rise to a genuine issue for trial and permits him to proceed. It is clear from the general principles discussed above in relation to motions for summary judgment that a respondent to such a motion is required to tender such evidence in the motion itself.

[75] In Shankowsky-Day et al v. Estate of Isaac et al,[^32] in 2010, Healy J. granted summary judgment dismissing a cross-claim by one defendant, the Isaac Estate, against two other defendants, William and Boris Osadchuk, in an action for damages for personal injury arising from two motor collisions involving three vehicles travelling one after another that had occurred in rapid succession on a highway. Healy J. rejected the cross-claiming estate’s position, as respondent to the motion, that there were determinations of fact that needed to be made by the trial judge which raised triable issues bearing on liability, namely, whether Mr. Osadchuk was talking on his cell phone at the time of the collision, and the cause of the collision, on which issue the estate had retained an engineer.

[76] With regard to the first of these issues, Justice Healy noted that the Estate had requested Mr. Osadchuk’s cell phone records at his examination for discovery in mid-July 2008, to see whether he had used his phone contemporaneously to the collision, which request was taken under advisement. The Estate had never moved for an order to compel Mr. Osadchuk to produce the records, even though it had agreed upon the hearing date for the summary judgment motion over six months before it was heard. Justice Healy stated:

Such a failure to follow up on speculation in order to attempt to adduce potentially relevant evidence does not meet the requirement of putting one’s best foot forward on a motion for summary judgment. This requirement has long been recognized by the courts; it is not sufficient for the responding party to say that more and better evidence will (or may) be available at trial: Pizza Pizza Ltd v. Gillespie 1990 ONSC 4023, (1990), 75 O.R. (2d) 225 (Gen Div.). As was pointed out in Dawson v. Rexcraft Storage & Warehouse Inc., the motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial. Accordingly I can proceed on the basis that there are no cell phone records that would have contradicted Mr. Osadchuk’s own evidence that he was not talking on his cell phone at the time of the accident. The respondent has not met the evidentiary burden of showing that there is a genuine issue for trial in that regard.[^33] [Emphasis added]

[77] Justice Healy applied the same reasoning to the Estate’s submission that the liability expert it had retained may shed light on the potential causes of the accident. She noted that the affidavit filed by the Estate’s solicitors indicated that the Estate had retained its expert following the conclusion of the plaintiff’s examination for discovery in early May 2008, and that it had not yet received any findings, opinions, or conclusions of the engineer as of the date of the hearing in December 2009. Justice Healy stated:

Again, to raise the spectre of potentially useful evidence is not enough to meet the evidentiary burden, particularly since the respondent has not put forth any explanation for the absence of information from its engineer some seventeen months after being retained. Given that lack of explanation it is open to me to infer that the respondent’s engineer has no information that would assist the respondent’s cross-claim and I accept that inference; if it had information that would raise a triable issue this would have been the time to reveal it. The respondent failed to meet its onus on a summary judgment motion of “lead[ing] trump or risk[ing] losing”: see Dawson v. Rexcraft Storage &. Warehouse Inc., supra, and Goldman v. Devine, 2007 ONCA 301, 2007 ONCA 301 (Ont. C.A.). [Emphasis added]

[78] Similarly, in Lafond v. Fabian,[^34] in 2004, Master Beaudoin granted summary judgment dismissing a self-represented plaintiff’s action against his doctors and a hospital for damages he said he had sustained as a result of their negligence based on his failure to obtain an expert report on the issues of standard of care and causation before the hearing of the motion for summary judgment. If the requirement to tender expert evidence is imposed even on a self-represented litigant, it clearly does not place an unfair burden on Mr. Jardim, who has been represented by counsel throughout the present action.

[79] Mr. Jardim has offered any explanation for his failure to tender an appraisal of Sedgewick Circle at the time it was sold. Evidence, for example, that Ms. Montemurro had impeded his ability to obtain such an appraisal would be an answer to the complaint that he has failed to produce one. In Melissa Topp v. Costco Wholesale Canada Ltd.,[^35] in 2012, Quigley J. refused a motion by a plaintiff for partial summary judgment striking out a paragraph of the defendant’s Statement of Defence in which the defendant had pleaded and relied on the doctrine of spoliation of evidence arising from the plaintiff’s alleged failure or refusal to produce a small piece of plastic that was central to the lawsuit. The motion was dismissed on the ground, among others, that the plaintiff had not complied with an order requiring it to answer questions asked at its examination for discovery about the efforts it had made to obtain the piece of plastic. Justice Quigley stated:

Finally,…it would be inequitable in my opinion to grant the moving party the partial summary judgment it seeks when it has failed to comply with an order of this court requiring it to answer questions that were refused on discovery. It cannot lie in the mouth of the plaintiff to say that the defendant has advanced no evidence to support a defence of spoliation when one evidentiary tidbit that might advance the defendant’s position in respect of spoliation would be evidence that might emerge from those answers.[^36]

[80] Mr. Jardim has offered no such explanation for his own failure to obtain an appraisal that supports his allegation that Ms. Montemurro sold Sedgewick Circle for less than it was worth. Were Mr. Jardim’s defence based entirely on his allegation that Ms. Montemurro improvidently sold Sedgewick Circle, I would find that he had failed to discharge the onus on him as a respondent in a motion for summary judgment to tender evidence of both Ms. Montemurro’s liability and his own damages.

CONCLUSION AND ORDER

[81] In the present case, Mr. Jardim does not rely solely on his allegation that Ms. Montemurro improvidently sold Sedgewick Circle in defence of her claim. He relies also on her delay in notifying him of the deficiency in the mortgage account, and on her improper delegation of her decision-making in relation to the trust funds in her accounts by giving Ms. Jardim exclusive Power of Attorney over them, in breach of her obligations to Mr. Jardim.

[82] An accounting of the expenses incurred during the nine month delay, and of Ms. Jardim’s withdrawals from the accounts, is necessary in order to determine whether Ms. Montemurro is entitled to the net proceeds of sale of Sedgewick Circle, even if she obtained a fair price for the property. The onus was on her to give this accounting. I find that she has not done so.

[83] A full appreciation of the evidence concerning the expenses she incurred and the reasons why the funds the Jardims provided were insufficient to pay them can only be obtained by the evidence to be given by Ms. Montemurro and Ms. Jardim at trial, where they will be subject to cross-examination by Mr. Jardim’s counsel.

[84] For the foregoing reasons, I find that there is a genuine issue for trial and the motion for summary judgment is therefore dismissed. If the parties are unable to agree on costs, they may submit written arguments, not to exceed four pages, plus a Costs Outline, by November 15, 2012.

Price J.

Released: November 1, 2012

[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [^2]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 [^3]: Combined Air, above, at paras 37 and 38 [^4]: Combined Air, above, at paras. 41 and 44 [^5]: Hi Tech Group Inc. v. Sears Canada Inc. 2001 ONCA 24049, (2001), 52 O.R. (3d) 97 (C.A.) [^6]: Combined Air, above, at para. 50. [^7]: Combined Air, at para. 52. [^8]: Combined Air, at para. 52. [^9]: Combined Air, above, at para. 56. Dawson v. Rexcraft Storage & Warehouse Inc., 1998 ONCA 4831, [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. 1994 ONCA 814, (1994), 18 O.R (3d) 481 (C.A.); Papaschase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14, [2008] 1 S.C.R. 372 (S.C.C.) at para. 11; Saltsov v. Rolnick 2010 ONSC 914, at paras. 43-44 (Ont. Div. Ct). [^10]: 1061590 Ontario Ltd. v. Ontario Jockey Club 1995 ONCA 1686, (1995), 21 O.R. (3d) 547 at para. 35 (C.A.) [^11]: see 1061590 Ontario Ltd. v. Ontario Jockey Club 1995 ONCA 1686, (1995), 21 O.R. (3d) 547 (C.A.). [^12]: McLellan Properties Limited v. Antoine Roberge and L.D. Roberge, 1947 SCC 10, [1947] SCR 561 [^13]: McLellan Properties Limited v. Antoine Roberge and L.D. Roberge, above, at pps. 566-567 [^14]: McLellan Properties Limited v. Antoine Roberge and L.D. Roberge, above, at p. 573 [^15]: Siskind v. Bank of Nova Scotia (1984), 1984 ONSC 2114, 46 O.R. (2d) 575 [^16]: Bank of Nova Scotia v. Barnard (1984), 1984 ONSC 2095, 46 O.R. (2d) 409 [^17]: Wood v. Bank of Nova Scotia et al. (1979), 1980 ONCA 1862, 29 O.R. (2d) 35 [^18]: Oak Orchard Developments v. Iseman, [1987] O.J. No. 361 (ONCA) [^19]: (1989) CarswellOnt 2217 [^20]: Shuster v. Goldberg, 1998 ONCA 4514, [1998] O.J. No. 1243, upheld on appeal at 113 O.A.C. 364. [^21]: Bank of Montreal v. Korico Enterprises Limited, 2000 ONCA 16833 [^22]: Personal Property Security Act, R.S.O. 1990, c. P. 10 [^23]: Royal Bank of Canada v. 2021847 Ontario Limited, 2008 ONCA 628 [^24]: Royal Bank of Canada v. 2021847 Ontario Limited, above, at para. 2 [^25]: 1066360 Ontario Limited v. Ravells, 2010 ONSC 3605, at paras. 9 to 12 [^26]: Samu v. Arts, 2004 CarswellOnt 4322 (ON CA) [^27]: Maritime Life Assurance Co. v. Cox, 2005 ONSC 3987 [^28]: Dhaliwal v. Plantus, 2007 ONSC 46164 [^29]: Gerlach v. AGF Trust Company, 2012 ONSC 636, at para. 31 [^30]: Dawson v. Reycraft Storage & Warehouse Inc. 1998 ONCA 4831, (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), per Borins J.A., at p. 267. Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. 1996 ONSC 7979, (1996), 28 O.R. (3d) 423 (Gen. Div.), affd [1997] O.J. No. 3754 (C.A.). [^31]: Rules of Civil Procedure, RRO 1990, Reg 194 [^32]: Shankowsky-Day et al v. Estate of Isaac et al, 2010 ONSC 121 [^33]: Shankowsky-Day et al v. Estate of Isaac et al, , above, at para. 20 [^34]: Lafond v. Fabian, 2004 ONSC 1234 [^35]: Melissa Topp v. Costco Wholesale Canada Ltd., 2012 ONSC 3354 [^36]: Melissa Topp v. Costco Wholesale Canada Ltd., above, at para. 24