SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-104603

DATE: 2013079

RE: SJT Holdings Inc., Plaintiff

AND:

Kurt Christensen, Tom Lambos, 1546664 Ontario Inc.
(Operating as Mortgage Edge), and Home Capital Group Inc., Defendants

BEFORE: The Honourable Madam Justice A. Mullins

APPEARANCES:

Stephen Tonner, appearing for the Plaintiff

John S. McNeil, Counsel for the Defendants

HEARD: June 28, 2013

ENDORSEMENT

[1] The defendants Tom Lambos and 1546664 Ontario Inc. bring three motions. The plaintiff brings a cross-motion. These motions require a consideration of the following earlier dispositions:

(Please see pages 2 through 13)

[2] The defendants seek summary judgment dismissing the action on the grounds there is no genuine issue for trial as the action is statute-barred.

[3] The defendants seek that the action be dismissed or stayed as it is prohibited by the orders of Mr. Justice Belababa dated October 26, 2006, Mr. Justice Boswell dated December 9, 2011, and the order of Mr. Justice McNamara dated January 20, 2012.

[4] The defendants seek leave to appeal the order of Justice McKelvey dated September 18, 2012 allowing Stephen Tonner to represent the plaintiff corporation.

[5] SJT Holdings Inc. asks that the defendants’ action be dismissed, that leave be granted to amend the Statement of Claim, and costs of $1,500.00.

[6] The Statement of Claim was issued on June 9, 2011. The plaintiff’s claims against the defendants arise from their conduct in arranging mortgage financing. The Statement of Claim alleges that the defendants failed to disclose the interest rate, failed to provide a copy of the commitment, and failed to disclose the fee. The plaintiff characterizes these failings as extortion, breach of fiduciary duty, fraud and negligence

[7] The defendants have filed the affidavit of Mr. Lambos to which are appended the documents that relate to the mortgage financing. The mortgage in question was advanced on October 9, 2007 and discharged on December 12, 2008. The rate of interest was disclosed in a commitment letter dated September 23, 2007. The contents of that were acknowledged by Mr. Tonner on its face. A finder’s fee of $3,750.00 is therein reflected. These completely and definitively contradict the assertions in the Statement of Claim. The defendants plead and rely upon the Limitations Act, 2002. Pursuant to section 4 actions may not be brought more than two years after the anniversary of the discoverability of a cause of action.

[8] The plaintiff has not filed any evidence contesting the accuracy of the intents of the affidavit filed by the defendants, nor the authenticity or contents of the documents attached thereto as exhibits.

[9] Rule 20.04(2) stipulates that the court shall grant summary judgment if satisfied there is no genuine issue requiring a trial.

[10] I accept the plain evidence of Mr. Lambos. I find that the cause of action of SJT Holdings Inc. is barred by the Limitations Act 2002, as having arisen more than two years before the date of issue of the Statement of Claim. The latest the cause of action might be taken to have arisen is December 12, 2008 and was perhaps as early as September 23, 2007.

[11] The defendants’ motion for summary judgment is granted and the action is dismissed as against them.

[12] The defendants may make submissions as to costs within 30 days. The plaintiff shall make submissions within 45 days. The defendants shall have 50 days within which to reply.

[13] In the event I am mistaken in granting summary judgment, I rule in the alternative, that this action falls within the meaning of paragraph 2 of the order of Mr. Justice McNamara dated January 20, 2012. The action is the indirect institution of a proceeding by Mr. Steven Tonner, Mr. Tonner being the principal of the plaintiff corporation. The action is therefore stayed, until such time as leave has been obtained (on notice to all parties). The relief sought by the defendants to stay the action is, therefore, also granted.

[14] The parties may make submissions on the costs of this motion within the same timelines as above.

[15] I grant leave to appeal the order of Justice McKelvey dated September 18, 2012. There is good reason to doubt the corrections of his decision appointing Mr. Tonner to act on behalf of the corporate plaintiff, notably his failure to consider the circumstance of Mr. Tonner having been adjudged a vexatious litigant. This issue of whether someone adjudged as vexatious may nonetheless represent a corporation of which he is the sole principal is important.

[16] The defendants’ motion for leave is therefore, also granted. The parties may make submissions as to costs within the timelines as above.

[17] It follows that, with the exception of his motion to amend, the plaintiff’s motion is dismissed. The relief to amend is stayed and shall not be renewed unless and until an appellate order or other order of this court provides otherwise.

Justice A. Mullins

Date: July 9, 2013