ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 13-005
Date: 20130625

B E T W E E N:

GRAND MORTGAGE INVESTMENT CORPORATION

Mr. T. Merrifield, for the Plaintiff

Plaintiff

• and -

JEFFERY STUART TASKER and MARGO LOUISE TASKER

Jeffery Stuart Tasker, In Person

Defendants

Heard: June 14, 2013

SUMMARY JUDGMENT

Fragomeni J.

1The Plaintiff, Grand Mortgage Investment Corporation, brings a motion for Summary Judgment as follows:

(a) That the Defendants, Jeffery Stuart Tasker and Margo Louise Tasker deliver to the Plaintiff possession of the premises more particularly described as follows as Schedule A:

Schedule “A”

The Lands and Premises referred to in this claim collectively as the Properties are described as follows:

Property One: Municipally: Lots 45 and 46, John Street, Feversham, Ontario

Legal Description: PIN: 37255-0281(LT), Lots 45 and 46, Plan 203, Lots 1 and 2, Plan 837, Municipality of Grey Highlands, County of Grey.

Property Two: Municipally: 317 Mill Bridge Road, Feversham, Ontario

Legal Description: PIN: 37255-0235(LT), Part of Lot 16, Concession 9, being Part 5 on Plan 17R-1131, Municipality of Grey Highlands, County of Grey.

Property Three: Municipally: 319 Mill Bridge Road, Feversham, Ontario

Legal Description: PIN: 37255-0228(LT), Part of Lot B, 1 North Side of Wellington, Plan 231, Osprey, as in R468668, subject to R468666, Municipality of Grey Highlands, County of Grey.

Property Four: Municipally: 320 Mills Bridge Road, Feversham, Ontario

Legal Description: PIN: 37255-0226(LT), Part of Lot B, Plan 231,

being Parts 6 and 7 on Plan 17R-1131, being parts 1 and 2 on Plan17R-1279, subject to R296415, Municipality of Grey Highlands, County of Grey.

Property Five: Municipally: 119 Wellington Street, Feversham, Ontario

Legal Description: PIN: 37455-0241(LT), Part of Lot 16, Concession 9, Osprey, as in R505744, description may not be acceptable in future as in R505744, Municipality of Grey Highlands, County of Grey.

(b) That the Defendants forthwith pay to the plaintiff the following sums due today to the Plaintiff for principal, and interests:

a. For Principal $120,000.00

b. For Interest from October 1st, 2012
to January 21st, 2013 $4,045.08

c. Administration Fee – Cancelled Insurance $200.00

d. Administration Fee – NSF Cheque $250.00

e. Penalty for Early Payment $2,200.00

f. Legal Fees and Disbursements for Notice of Sale $2,500.00

g. Pre-Judgement Interest on A-F, above, $3,413.01

h. Administration Fee – Default Action $1,000.00

i. Administration Fee – Taking Possession $1,000.00

(c) Costs of the action and motion.

(d) That the judgment bears interest at the rate of 11% per month compounded from April 18, 2013 in accordance with the mortgage/set of Standard Charge Terms.

2It is common ground that none of the relevant facts are in dispute. The following facts ground the basis for this application and the defendants do not dispute these facts:

1. This matter arises out of an interest payments only blanket mortgage placed on five properties in the Feversham area, in the amount of $120,000.00.

2. Both of the Defendants signed commitment letters outlining terms of the blanket mortgage, including acknowledging that Administrative/Servicing and Progress Fees, and “Set of Standard Charge Terms”, being filing No. 200033, which formed a part of the mortgage.

3. Upon the closing of the mortgage, the Defendants swore Statutory Declarations that they were the registered owners of the subject properties. There was never any disclosure of any other interest or potential interest in the subject properties by the Defendants.

4. The Defendants’ October 1st, 2012 cheque for $1,100.00 was returned “not sufficient funds”. A demand letter was sent to the Defendants, and the Defendants responded that they were not able to make any payments. The mortgage has remained in arrears since, and no payments have been made.

5. Up to and including January 21st, 2013, the following amounts are owing under the various mortgage documents:

a. Principal as of October 1st, 2012 $120,000.00

b. Interest from October 1st to January 21st, 2013 ($35.48/day) $4,045.08

c. NSF Cheque $250.00

d. Penalty (Two Month’s Interest) $2,200.00

e. Default Charges $2,750.00

f. Fee for Default Proceeding or Action Instituted $1,000.00

g. Legal Fees for Notice of Sale (incl. HST) $2,500.00

TOTAL $132,495.08

Additionally, under the contract, the Defendants owe pre-judgement interest at a rate of 11% from January 21st, 2013 to the date of judgement.

3In their Statement of Defence, the defendants plead the following at paragraphs 3 to 7:

3. The defendants do not admit or deny, but currently do not concur with the terms and accounting of the charge/mortgage listed in paragraphs 5, 6, 7, 9 and 10 of the Statement of Claim.

4. Due to the special nature and legal interrelationships of the properties listed in Schedule A of the Statement of Claim and adjacent properties the plaintiff has not currently satisfied the legal requirements for a judgment for an order of possession.

5. Concurrent claims for the lands listed in Schedule A exist with third parties including but not limited to, privately registered land claims and possible claims by Her Majesty the Queen in Right of Ontario in Her capacity as the Ontario Ministry of Natural Resources, The Municipality of Grey Highlands and the Grey Sauble Conservation Authority.

6. The defendants have placed the properties listed in schedule A for sale in an attempt to satisfy the terms of the charge/mortgage and conclude this action.

7. The value of the properties listed as security far exceeds the value of the mortgage/charge and the contract can be concluded upon completion of sale of the properties.

4The Defendants argument at this motion is that the Summary Judgment is not available to the Plaintiff due to the fact that other third parties may have an interest in the properties and should have notice of this Summary Judgment motion. At paragraph 13 he lists these parties as follows:

13. Parties that may have an interest in this Statement of claim are listed as follows:

i) HMQRO (Ontario Ministry of Natural Resources): regarding the bed of the Beaver River subject to a judicial determination of navigability as well as rights pursuant to The Beds of Navigable Waters Act (2);

ii) HMQRO (Municipality of Grey Highlands): regarding lands, roads and sewage systems. I have concerns regarding the historical issuance of building and sewage system permits in Feversham in proximity to current water levels in the Beaver Rive in contrast to water levels permitted by registered instrument 4136 on my deed. Current municipal planning and by-law documentation does not recognize my deeded water rights; Claims for lasting improvements may exist from the Municipality of Grey Highlands.

iii) HMQRO (Grey Sauble Conservation Authority): regarding lands and regulated hazard lands. Land planning in the area does not recognize my deeded water rights; and

iv) Private land owners: regarding lands, the bed of the Beaver River subject to a judicial determination of navigability, buildings and sewage systems.

Test for Summary Judgment

5Rule 24.04(2) of the Rules of Civil Procedure states:

(2) A deemed dismissal under this rule is not a defence to a subsequent action unless the order dismissing the action provides otherwise. O. Reg. 770/92, s. 8; O. Reg. 394/09, s. 10 (2).

6In Combined Air Mechanical Services Inc., v. Flesch 2011 ONCA 764 the Court stated the following at paras. 38, 50, 51:

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.

We find that the passages set out above from Housen, at paras. 14 and 18, such as "total familiarity with the evidence", "extensive exposure to the evidence", and "familiarity with the case as a whole", provide guidance as to when it is appropriate for the motion judge to exercise the powers in rule 20.04(2.1). In 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?

We think this "full appreciation test" provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the "interest of justice" requires a trial.

7There is no issue that a valid mortgage was in place and that the mortgage is in default. The Defendants have not made any payments under the mortgage since October 1, 2012. The Defendants admit they are in default.

8In the Affidavit of Keith Cummings, the Plaintiff has provided both the contractual documents as well as a full accounting of the monies owing under the mortgage.

9In their Defence the defendants plead that they “do not admit or deny, but do not concur with the terms and accounting of the charge/mortgage listed in the Statement of Claim”. However, in their supporting responding material they do not address the issue of the amounts owing or why the accounting is in error.

10The concern raised by the Defendants that any sale of the properties would be an improvident sale so that disentitles the Plaintiff to Summary Judgment cannot succeed. There is no indication on evidence that that will be the case and the Plaintiff is required to proceed with a sale that takes into account fair market value.

11Finally, the Defendants’ position that Summary Judgment cannot be granted because other parties who may have an interest in the properties have not been put on notice cannot succeed. Those parties are not parties to the mortgage and have no standing at this motion.

12In all of these circumstances, therefore, Summary Judgment to issue in accordance with the Draft Judgment filed.

13Costs fixed in the all-inclusive sum of $6,000.00 for the action and Summary Judgment motion.

Fragomeni J.