ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-3694
DATE: 20130213
BETWEEN:
DONNA DADD and
RANDOLPH CHONG
Applicants
– and –
HARCHARAN KAUR
Respondent
Ms. Emonds, Appearing for Mr. Klaiman, Counsel for the Applicants
Mr. D’Mello, Counsel for the Respondent
HEARD: February 7, 2013
varpio, j.
REASONS FOR ORDER
Introduction
[1] This motion and cross-motion was argued before me on February 7, 2013. The Applicants seek an Order permitting them to amend an Order signed by my sister Justice Snowie on August 31, 2012. The Respondents seek an Order paying them $84,448.24 that had been paid into Court by the Applicants. For the reasons that follow, I find that the Order signed by Justice Snowie contained a “slip” and that it should not have contained the word “other” in reference to disputed funds. Accordingly, I will allow the Applicants to vary the Order and I dismiss the Respondent’s cross-motion.
Procedural History
[2] The Applicants received a loan from the Respondent on June 24, 2011 secured by a mortgage against a property known municipally as 6239 Salt Marsh Court, Mississauga (the “Home”). By the summer of 2012, the mortgage had gone into default and the Respondent had taken steps to enforce the mortgage. By August 23, 2012, the Sheriff of the Regional Municipality of Peel had issued a direction to evict the Applicants from the Home.
[3] This proceeding was begun by way of Notice of Application dated August 23, 2012. Within said Application, the Applicants sought to, inter alia, pay monies into Court in exchange for an Order:
(a) Discharging the mortgage; and
(b) Preventing the Sheriff from evicting the Applicants from the Home.
[4] The motion was initially heard by Justice Hourigan on August 23, 2012. There was a dispute with respect to the amount of the potential claim and the matter was dismissed without prejudice to the Applicants’ ability to seek the same relief on further and better evidence.
[5] The Applicants were evicted from the Home on August 23, 2012. The Application was brought on short notice on August 31, 2012 and Mr. D’Mello, counsel for the Respondents, was unable to appear. My colleague, Madame Justice Snowie heard the Application.
[6] In the materials before Justice Snowie, the Applicants stated that they were in possession of a Discharge Statement from the Respondent’s lawyer in the amount of $78,209.60 (Affidavit of Donna Dadd, sworn August 22, 2013, paragraphs 9 and 10, Tab “D”). In paragraphs 10 and 11 of the aforementioned affidavit, the Applicant Dadd stated that:
The Discharge Statement now seeks payment in the sum of $78,209.60. There are a number of items contained in the Discharge Statement that are not accurate and which we believe we should not be charged for... We do not dispute that the Respondent is entitled to the principal balance of $42,000.00, the accrued interest which as at August 17, 2012, was $3,036.94. The NSF charges of $1,500.00, the statement fee of $500.00, the discharge fee of $525.00 and the registration of discharge in the sum of $71.30. That amount would total $47,633.24.
[7] A supplementary affidavit of Donna Dadd indicated that a further $5,938.64 was possibly owing in satisfaction of the mortgage. The disputed sums involved other monies allegedly owing to the Respondent as well as an alleged direct payment by the Applicant to the first mortgagee. The total sum to be paid into court was therefore $84,148.24. [Supplementary Affidavit of Donna Dadd, sworn August 28, 2012, paragraph 8.]
[8] In his submissions to the Court (Transcript of Proceedings before the Honourable Justice Snowie on August 31, 2012 (“Transcript”) , page 4, lines 1 – 12), Mr. Klaiman, for the Applicants, stated:
My client attended the first mortgagee, had paid the debt and so what we’re suggesting is that the money either be paid into court in full, whatever the mortgagee is claiming less the $5,000 payment we’ve made to the first mortgage or alternatively, that there are certain amounts that we don’t dispute and I can go through it with you, that we say he should get it right away but the rest of the money should go into court.
[9] Mr. Klaiman for the Applicants further explained the latter option (Transcript, page 5, lines 12-17):
...we say there’s a dispute about these sums of money which is about $36,000. Pay that money into court, grant the discharge and we can fight about whether you’re entitled to that money.
[10] It is at this point that the following exchange occurred:
THE COURT: Okay. So do you have a second copy of the $84,000, the payment into court of the 84?
MR. KLAIMAN: No. The point is, under the Mortgages Act, we can bring an application to pay that money into court but we need a court order saying that upon payment into court, the mortgage will be discharged.
THE COURT: No, no, but I realize that but you’ve given me a draft.
MR. KLAIMAN: Yes.
THE COURT: Okay. Do you have a second copy?
MR. KLAIMAN: Yes, I do.
THE COURT: Can I have it?
MR. KLAIMAN: I had provided the trial coordinator with...
THE COURT: With a draft of – two drafts.
MR. KLAIMAN: Two different types of orders.
THE COURT: Okay. So the one I want is the 84.
MR. KLAIMAN: I have that one.
THE COURT: Thank you. So I’ve granted your order according to a payment into court of eighty-four four.
[11] Mr. Klaiman provided the Court with an Order, which Justice Snowie signed, that ordered the following (the “Snowie Order”):
THIS COURT ORDERS that the Applicants shall pay to the Accountant of the Ontario Superior Court of Justice the sum of $84,448.24 to the credit of this action...
THIS COURT ORDERS that there be a Trial of Issues as between the Applicants and the Respondent to determine whether the Respondent is due any other monies under the terms of the mortgage granted by the Applicants to the Respondent.
[12] As an aside, I note that the quantum in the Snowie Order is $300 greater than the quantum listed in the materials, ($84,448.24 v. $84,148.24). While I could presume that said difference relates to continuing accrued interest, no submissions were heard regarding this difference, and, accordingly, I find that the $300 difference is immaterial to my analysis.
[13] In his affidavit in support of the motion before me, Mr. Klaiman suggests that the inclusion of the word “other” in paragraph 4 of the Snowie Order was as a result of an drafting error whereby he simply copied the wording from the draft Order (that was not signed by the Court) which would have paid the Applicants $48,097.28 directly and then deposited a further approximate $36,000 into court (the “Alternate Order”). Mr. Klaiman states at paragraph 11 of his affidavit dated January 24, 2013 that:
Paragraph 4 of the [Snowie] Order that was signed by Justice Snowie through inadvertence [sic]. It was copied from paragraph 5 of Exhibit “F” [the Alternate Order] and did not properly reflect the issues that the Court was being asked to determine which was what amounts the Respondent was due under the terms of the mortgage.
[14] Mr. D’Mello, for the Respondent, did not cross-examine Mr. Klaiman on his affidavit.
[15] At issue in this motion is whether the existence of the word “other” in paragraph 4 of the Snowie Order is tantamount to a finding by Her Honour that the full $84,448.24 can be remitted to the Respondent PRIOR TO the commencement of trial since paragraph 4, as it currently reads, apparently suggests that the upcoming trial in this matter will relate to monies beyond the $84,448.24 paid into Court.
[16] The Respondents, in defence of the Applicants’ motion and in advancement of their own cross-motion, suggest that they ought to be able to access the $84,448.24 prior to trial given:
(a) The wording of the Snowie Order;
(b) That the Court cannot find that the inclusion of the word “other” was a mere “slip”; and
(c) That the Applicant will be prejudiced by the amendment sought by the Applicant since he cannot sell the Home given the mortgage discharge.
[17] The Applicants state that the inclusion of the word “other” was a slip and that the Order ought to be varied accordingly.
Jurisdiction
[18] Prior to dealing with the substantive issues advanced in this motion and cross-motion, I would first like to address my jurisdiction to hear this matter.
[19] Upon review of the materials, it immediately occurred to me that Justice Snowie should hear this matter since she is best positioned to determining whether or not the Snowie Order contained a slip.
[20] Counsel, however, urged me to decide the matter since:
(a) The matter is set for trial in June; and
(b) It would be difficult to schedule a matter before Justice Snowie in the intervening period.
[21] Given counsel’s position, and given that there appears to be no law to suggest that I do not have jurisdiction to hear the matter, I am content to proceed.
The Law
[22] Rule 59.06(1) of the Rules of Civil Procedure states that:
59.06(1) An Order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.
[23] The law governing of this section makes clear that an Order is not to be amended as a matter of course. In fact, given the overriding need to rely upon Orders as a final disposition of matters heard before a Court, an Order can only be varied in narrow circumstances.
[24] I accept the proposition that an Order may only be varied when: (a) new facts arise that might probably have altered the judgment and could not with reasonable diligence have been discovered sooner; or (b) there has been an error in expressing the manifest intention of the court [Shaw Satellite G.P. v. Pieckenhagen, [2011] O.J. No. 4587 at para 22; Paper Machinery v. J.O. Ross Engineering Corp., [1932] S.C.R. 186 at 188]. This statement of the law flows from analysis of the current rule, its predecessor rule and the formerly governing common law rules. The case at bar falls into the “error in manifest intention” category.
[25] Counsel for the Respondent has placed cases before me that describe the nature of a “slip”. It is clear that a “slip” can include clerical errors, mathematical errors and the like [Inform Cycle Ltd. v. Rebound Inc., https://www.canlii.org/en/ab/abqb/doc/2008/2008abqb62/2008abqb62.html; Horne Coupar v. Velletta & Company, https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc483/2010bcsc483.html]. The question to be decided by me is, therefore, whether or not the inclusion of the term “other” in the Snowie Order constitutes a “slip” such that the manifest intention of the Court was not expressed by the Snowie Order.
[26] I am also content that, even if counsel for the Applicant satisfies me with respect to the preceding issue, I must also consider whether or not the Respondent will be prejudiced by any subsequent Order varying the Snowie Order [Hussein v. Sharif, https://www.canlii.org/en/on/onsc/doc/1994/1994canlii7439/1994canlii7439.html]. I am also satisfied that any ruling I make must ensure that, whether or not the Snowie Order is amended, the integrity of the litigation process is not offended [Hunter v. Hunter, https://www.canlii.org/en/on/onsc/doc/2005/2005canlii47756/2005canlii47756.html, [2005] O.J. No. 5571, as quoted in Shaw Satellite, supra.]
Analysis
The “Slip”
[27] I am satisfied that Mr. Klaiman’s inclusion of the word “other” in the Snowie Order was as a result of his “cutting and pasting” from the Alternate Order. I believe that, when he placed the Snowie Order before Justice Snowie, he believed that said Order would not allow the Respondent to withdraw the full sum of money placed in Court prior to trial.
[28] I am also satisfied that Justice Snowie was of a similar view at the time she signed the Snowie Order. As mentioned in the recitation of facts above, Justice Snowie was aware of the fact that, in their materials, the Applicants only believed that the Respondents were due $47,633.24 as evidenced by the affidavit of Donna Dadd. Further, as if to dispel any notion to the contrary, Mr. Klaiman indicated that:
…we’re suggesting is that the money either be paid into court in full, whatever the mortgagee is claiming… or alternatively, that there are certain amounts that we don’t dispute and I can go through it with you, that we say he should get it right away but the rest of the money should go into court.
[29] Given the materials before the Court on August 31, 2012, the submissions of counsel at the time, and the absence of any evidence to the contrary, there can be no dispute that Justice Snowie was aware that the payment into court was not an admission that the Applicants owed the Respondent the sum of $84,448.24. It was, instead, the manifest intention of Snowie Order that $84,448.24 be paid into court as security for the Respondent in the event that he won at trial. To permit the Respondent to withdraw the full amount deposited based upon the erroneous inclusion of the word “other” within the Snowie Order would permit the Respondent to take advantage of what is effectively a clerical error made by Applicant counsel. Such an outcome would offend my duty to protect the integrity of the litigation process since the Respondent would come into possession of funds to which he is not yet entitled since ultimate possession of same has not been decided by this Court. Such a result would amount to a judicially-sanctioned windfall (although a reversible one, depending upon the outcome of the litigation) and this is surely a result that the Court cannot countenance.
[30] I reject Respondent counsel’s submission that I can infer from Mr. Klaiman’s presentation of two orders to Justice Snowie, coupled with her signature upon the Snowie Order, that Justice Snowie believed that the Applicants were admitting that they owed the Respondents $84,448. If that were the case, Justice Snowie would not have needed to make an order for the trial of an issue since, pursuant to the Discharge Statement and other materials before the Court, all issues before the Court would have been decided.
[31] As for Respondent counsel’s position that a form of estoppel applies to this case given Applicant counsel’s conduct through the fall, I disagree that such estoppel, if it exists, is dispositive. Respondent counsel rightfully argued before me that I must turn my mind towards Justice Snowie’s intention at the time the Snowie Order was signed. Accordingly, any conduct undertaken after Justice Snowie signed the Order (especially conduct that remains unknown to Justice Snowie) has no relevance to the test to be determined by me.
Prejudice
[32] With respect to the Respondent’s position that the Respondent will be prejudiced if he cannot access the full sum paid into court by the Applicant, I must also disagree. The Respondent delivered a Discharge Statement and made verbal representations to Applicant counsel whereby the deposit of $84,448.24 was sufficient to satisfy the mortgage claim. When the Respondent indicates that he has been prejudiced by his current inability to sell the Home, he fails to consider that the Court has in its possession the entire amount ostensibly sought by the Respondent. Thus, it would appear that the Respondent has security for any sum for which he may be legally entitled flowing from the discharge of the mortgage.
Disposition
[33] Therefore, I am content that the Applicant may amend the Snowie Order to state as follows:
THIS COURT ORDERS that there be a trial of issues as between the Applicants and Respondents to determine what monies the Respondent is due under the terms of the mortgage granted by the Applicants to the Respondents.
[34] Further, in argument, counsel for the Applicant re-affirmed that the Applicants take no issue with the fact that the Respondents are due $47,633.24 from the $84,448.28 paid into Court. Accordingly, I am satisfied that the Respondents ought to be able to withdraw $47,633.24 without incurring the costs of further court appearances and may, accordingly, draft an Order for such relief.
Costs
[35] If either party wish to make submission with respect to costs, it may do so via written submissions (not to exceed 2 pages) delivered to me within 7 days of the date of release of this judgment.
Varpio, J.
Released: 20130213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DONNA DADD AND
RANDOLPH CHONG
- and -
HARCHARAN KAUR
Reasons for order
Varpio, J.
Released: 20130213