SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO: CV-11-421658
DATE: 20120210
RE: Maryke McEwen
Plaintiff
- and -
Gregory Joseph Marino and Joseph Marino and CIBC Trust Corporation, as Trustee for SDRRSP/RRIF No. 5901 4860-18 For Maryke McEwen as to a 100% Interest
Defendants
BEFORE: The Honourable Mr. Justice Brian P. O’Marra
COUNSEL:
Glenn E. Cohen,
for the Plaintiff
Gregory M. Sidlofsky,
for the Defendants
HEARD: January 27, 2012
E N D O R S E M E N T
[ 1 ] The defendants concede that a judgment should issue in favour of the plaintiff incorporating the relief as set out in paragraph #23 of the Factum of the Plaintiff. The remaining issues are as follows:
Should the enforcement of this judgment in favour of the plaintiff be temporarily stayed pending determination of the action against C.L. in Court File No. CV-11-441876.
Costs.
Facts
[ 2 ] The plaintiff sought summary judgment on a mortgage debt that went into default in 2001. This action was commenced in 2011, shortly before the 10 year limitation period expired. The plaintiff was contacted by the Marinos’ former lawyer, C.L., with whom the Marinos had been engaged in protracted legal proceedings. C.L. convinced the plaintiff to sue his former clients, initially proposing to the plaintiff that he take an assignment of the debt.
[ 3 ] The Marinos suspected C.L.’s involvement but did not learn the extent of it until examining C.L. as a witness on this motion. Following the examination, the Marinos commenced an action against C.L. seeking contribution and indemnity based on breach of fiduciary duty. The defendants assert that claim against C.L. is essentially a third party claim and would have been brought as such had the motion for summary judgment not been pending and near a hearing.
[ 4 ] The Marinos claim that C.L. breached his duty to them by counselling the plaintiff to sue them so C.L. could gain an advantage against them in his ongoing litigation with the Marinos.
[ 5 ] The plaintiff acknowledged in examinations that had it not been for C.L. contacting her she would not have commenced the claim. The Marinos assert that with the long delay in starting the action, it would not prejudice them to stay execution of the judgment while the action against C.L. proceeds.
[ 6 ] The plaintiff’s position is that Rule 20.08 is not applicable and a temporary stay should not be granted. They claim that the claim against C.L. would not properly be a third party proceeding since the claim arose in 2010 or 2011 and is based on an alleged solicitor-client relationship entirely unrelated to McEwen. The factual basis of McEwen’s claim, now uncontested, is a mortgage contract and default by the Marinos going back almost 10 years.
Analysis
[ 7 ] Rule 20.08 provides as follows:
Where is appears the enforcement of a summary judgment ought to be stayed pending the determination of some other issue in the action or a counterclaim, cross-claim or third party claim, the court may so order on such terms as are just.
[ 8 ] Section 106 of the Courts of Justice Act provides as follows:
A court, on its own initiative or on a motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.
The power to stay under s. 106 is broad and highly discretionary. The test really turns upon what the court in its discretion considers the interest of justice to demand. Buttarazzi v. Buttarazzi 2009 Carswell Ont. 8798 (S.C.J.) para. 50-53 .
[ 9 ] The test for a temporary stay requires the court to determine whether the equities favour a temporary stay. Catalyst Fund Ltd. Partnership II v. IMAX Corporation, (2008) Carswell Ont. 5700 (S.C.J.) para. 21 , 23.
[ 10 ] This is not a situation where the defendant seeks to stay execution pending a completely unrelated litigation in hope of some recovery. There is no dispute that the mortgage debt is owed but the timing and circumstance of the claim are inextricably linked with the conduct of a former lawyer for the Marinos who became very actively involved in launching and maintaining the action. The defendants have not “sat on their rights” regarding the conduct of their former lawyer and learned relatively recently of his involvement in this action.
[ 11 ] Based on the particular chronology of this matter, it is appropriate that the court exercise its discretionary authority to grant a temporary stay of execution of the judgment on terms. If the Marinos do not pursue their claim against C.L. related to their mortgage debt action in a diligent manner, the plaintiff will be entitled to bring the matter back before me or another Justice of this court on short notice to consider ending the temporary stay.
Result
- Judgment for the plaintiff as follows:
$62,000
Principal
57,660
6 years interest arrears
8,585
Pre-judgment interest
$128,243
Plus post-judgment interest at 15.5% per annum.
Temporary stay of execution on the above judgment.
Solicitor for defendants shall keep solicitor for plaintiff informed and current on status of Marinos action against C.L. – such notice to be in writing.
Plaintiff may bring this matter on 7 days notice before me or another Justice to revisit any aspect of this temporary stay.
A costs outline was received from the plaintiff. Both parties may make further brief (3 pages) submissions as to costs by February 20, 2012.
B. O’MARRA, J.
DATE: February 10, 2012