Superior Court of Justice - Ontario

Court File No.: 09-10652
Motion Heard: 2012/02/03

RE: The Toronto-Dominion Bank, Plaintiff

AND:
Yolanda De Rose and Domenic De Rose, Defendants

Before: Turnbull, J.

Counsel:
Amanda Jackson, Counsel, for the Plaintiff
Oscar Strawczynski Counsel, for the Yolanda De Rose

Heard: February 2, 2012

Reasons for Decision

[ 1 ] The plaintiff brought a motion for summary judgment in this matter, which was partially argued before me today.

[ 2 ] In the course of argument, counsel for the plaintiff argued that on the facts before the court, the court could grant judgment against the defendant on the basis that she had been unlawfully enriched due to the mistake or oversight of the plaintiff in depositing over $400,000.00 in the defendants’ joint bank account on the assumption that a mortgage securing the advance had been registered against Mrs. De Rose’s property on Cicero Court. In the alternative, it was suggested that the doctrines of equitable subrogation or estoppels may entitle the plaintiff to judgment. In any event, Ms. Jackson submitted that the fact that Mrs. De Rose alleges she did not know about or approve of the loan from the bank is irrelevant if she has received the benefit of the money.

[ 3 ] M.r Stawczynski argued that unjust enrichment, equitable subrogation and/or estoppels have not been pleaded and that he was caught by surprise by such submissions. Hence, he submitted that a judgment could or should not be granted on summary motion without the pleadings putting forth a claim for such relief.

[ 4 ] I received submissions all day from counsel. They went through the chronology of events and the documents supporting those events in considerable detail. The productions of the defendant appear to indicate that virtually all the money advanced into the joint bank account of the defendants went to properties or a company owned solely by Mr. De Rosa. I was informed that the defendant had given many undertakings on her cross examination which were not answered and one of those was to advise of any of the cheques issued from the joint account which were not paid out for her sole benefit.

[ 5 ] After hearing the submissions of counsel, I informed them that before disposing of this motion, the pleadings should be properly amended to reflect the basis of the plaintiff’s claim so as to permit the defendant to plead to it fully and prepare to meet such an argument on the continuation of this motion.

[ 6 ] Rule 20 gives the court wide discretion to take such steps as are appropriate to direct the trial process so as to effect the most expeditious and cost effective resolution of litigation for the parties. In this case, with respect to a possible unjust enrichment claim, the facts are not seriously in dispute. Clearly the bank advanced funds on the mistaken belief that its security was in place in the form of a first mortgage on the defendant’s property at 3 Romeo Crescent. The funds advanced were received into the joint bank account of the defendants. Both the defendant and her husband wrote cheques and on the account and Mrs. De Rose agreed in her cross examination that the cheques found at Tab E of the plaintiff’s motion record were written on the account into which the bank’s funds were deposited. On her cross examination, Mrs. De Rosa agreed that she got the benefit of them.

[ 7 ] Ms. Jackson pointed out that there are three categories of use of the cheques. First, many of them specify that they were for the new Eden Vale 7,500 square foot home being built by the defendant Mrs. De Rose. The property is registered in her name alone. Many of the cheques which do not specifically refer to that residence are in fact related to the completion of that home such as approximately $5,000.00 for a refrigerator and payment for the painting of murals on the walls of the house. Second, two cheques were made payable to Mrs. De Rose’s real estate investment company. They are found at Tab E, page 31 and page 39 in the amount of $20,000.00 and $50,000.00 respectively. Third, at page 40, there is a cheque in the amount of $10,700.00 paid to a mechanical contractor for work done on Mrs. De Rose’s investment property (owned solely by her) at 762 Dundas Street West, Toronto.

[ 8 ] At question 674 of her cross examination, Mrs. De Rose agreed that $430,000.00 of the funds advanced by the plaintiff went to her benefit.

[ 9 ] In the circumstances, it is ordered

a. The plaintiff shall serve and file an amended statement of claim on or before February 15 th , 2012.

b. The defendant Yolanda De Rose shall serve and file an amended statement of defence on or before February 28 th , 2012.

c. The defendant shall complete all her undertakings given on her cross examination on or before March 1st and shall make herself available for any further cross examination on the answers given to those undertakings on or before March 10 th , 2012.

d. The defendant shall serve and file any supplementary affidavit on or before March 1, 2012 and shall be cross examined on that affidavit, if counsel so chooses to do so, on or before March 10, 2012.

e. The Plaintiff shall serve and file any supplemental factum and Book of Authorities on or before April 1, 2012.

f. The Defendant shall serve any supplemental factum and Book of Authorities on or before April 8, 2012.

g. The motion is adjourned to Friday April 13, 2012 at 10:00am for continuation of submissions on the amended claim only.

Turnbull, J.

Date: February 3, 2012