SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-424338
DATE: 20130225

RE: Elle Mortgage Corporation, Plaintiff

AND:

1700589 Ontario Inc. and Anthony Diamond, Defendants

AND RE: 1700589 Ontario Inc. and Anthony Diamond, Plaintiffs by Counterclaim

AND:

Elle Mortgage Corporation, Defendant to Counterclaim

BEFORE: Pollak J.

COUNSEL: Glenn E. Cohen/Adam J. Wygodny, for the Plaintiff/Defendants to Counterclaim

Doug LaFramboise, for the Defendant/Plaintiff by Counterclaim

HEARD: September 11 and 13, 2012

AMENDED ENDORSEMENT RE COSTS

[1] The Appellants, Elle Mortgage Corporation (“Elle”) and its solicitor Terry Walman, are appealing part of the order of Master Graham dated May 24, 2012, denying their motion to dismiss the entire counterclaim against them.

[2] The Appellants were granted summary judgment of their claim in the Action. The Action was brought by Elle to enforce a mortgage of a commercial condominium unit.

[3] The Respondents’ counterclaim and crossclaim (“Counterclaim”) against the Appellants is for:

(a) “Return & Repayment of the sum of $8,497.80, deducted from the mortgage loan advance on closing and received”;

(b) “Damages for deliberate vandalism, burglarizing, break and enter of the mortgaged property in the sum of $1,000,000.00”;

(c) “Damages for breach of contract in the sum of $1,000,000.00”;

(d) “Damages for conspiracy to breach the contract the sum [sic] of $1,000,000.00”; and,

(e) “Damages for breach of fiduciary duty in the sum of $1,000,000.00”.

[4] I do not find that the Master erred as alleged by the Appellants. I agree with the Master that the Walman affidavit did not address these claims. The Appellants had to establish a link between their evidence and the alleged claims and did not do so.

[5] As I have stated above, the Appellants had the burden of adducing evidence and establishing a link between that evidence and the alleged claims. They did not do so, with respect to these claims.

[6] I do not accept the submissions of the Appellants with respect to these claims that the Master exercised his discretion on the wrong principles or misapprehended the evidence such that a palpable and overriding error occurred.

[7] In conclusion, I find that the Master properly set out the legal principles to be considered on a motion for summary judgment in his decision in the motion for summary judgment in the main action and in the motion for summary judgment in the counterclaim.

[8] I disagree that the Master erred by concluding that the Appellants had not met their burden of proof on the motion with respect to the counterclaim. The Appellants provided some factual evidence without linking the evidence to the particular claims and without the application of any legal principles. This is not, in my opinion, sufficient for the Appellants to meet their burden of proof.

[9] Master Graham found that “The plaintiff’s affidavit evidence and factum do not address these claims and the motion to dismiss them is dismissed”. I find that the Master did not “exercise discretion on the wrong principles” or “misapprehend the evidence” leading to a palpable and overriding error.

Costs

[10] The parties have agreed that the Respondents, the successful parties on this appeal, are entitled to costs of $3,100 on a partial indemnity basis.

[11] At the hearing, the parties raised issues with respect to the payment of costs that were awarded on the Master’s motion. I agree that on the basis of the jurisprudence submitted by Mr.

Cohen that the previous cost award of Master Graham in the amount of $20,000 payable ought to be set off against the cost award of $3,100 payable to the Respondent in this matter.

Pollak J.

Date: February 25, 2013