Starkman v. Home Trust Company, 2015 ONSC 1718
COURT FILE NO.: CV-11-428137
DATE: 20150318
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rhonda Michelle Starkman
Plaintiff
– and –
Home Trust Company
Defendant
unrepresented
Amanda Jackson, for the Defendant
HEARD: March 9, 2015
CAROLE J. BROWN, J.
Overview
[1] The defendant, Home Trust Company ("Home Trust") brings this motion for partial summary judgment for possession of property located at 566 Millwood Road, Toronto, Ontario M4S 1K5, owned by the plaintiff, Rhonda Michelle Starkman ("Ms. Starkman"), over which it holds two mortgages, and for a declaration of the amounts owing under the two subject mortgages.
[2] The motion is brought pursuant to Rule 51.06 of the Rules of Civil Procedure on the basis of information provided by Ms. Starkman in written answers provided by her in satisfaction of undertakings given on her examinations for discovery.
[3] Home Trust holds a second mortgage granted in 2008 over the subject property. In February of 2011, Life that also took assignment of an existing first mortgage over the said property that had been made in favour of ING Bank of Canada ("ING").
[4] Based on the evidence before this Court and the submissions of the parties, there has been a long history of default in payment under the subject mortgages, which are currently in default. No payments had been made toward either mortgage since February of 2011. As well, substantial municipal property tax arrears had accrued on the property, in further default of the terms of the mortgages.
[5] Ms. Starkman represented herself at this motion. The motion had been adjourned on previously on January 30, due to the fact that there were no responding materials. A timeline for providing responding materials was ordered, and a timeline was propounded as regards proceeding with the motion and filing of responding materials. The motion was scheduled for return on March 9, peremptory to the plaintiff, Ms. Starkman. The timelines were not adhered to, and no responding materials were provided by February 13, as ordered. At this motion, Ms. Starkman had documentation in support of her responding submissions. When I indicated that, in such a case, the motion would have to be adjourned to permit the moving party to review the materials, and cross-examine on any affidavits, she said that the documentation she intended to rely upon was in evidence before the Court that she simply wished to proceed. On that basis, the Court proceeded with this motion.
The Facts
First Mortgage
[6] The first mortgage on the subject property dated November 3, 2004, made between Ms. Starkman and ING was in the principal amount of $393,750.00 for a term of five years.
[7] The mortgage was transferred from ING to Home Trust on February 15, 2011. Pursuant to the terms of the mortgage, on default in payment of any portion of the money secured by the first mortgage, the principal would, at the option of the mortgagee, become payable and the mortgagee would be entitled to possession of the property. Default in payment under the first mortgage occurred on August 11, 2010 and continued to the day of the hearing of the motion. Ms. Starkman has admitted that the last payment made by her to ING was on August 6, 2010.
[8] Further, the evidence indicates that she failed to pay municipal property taxes as they fell due during the years 2008, 2009 and 2010. On March 18, 2011, Home Trust paid $18,944.07 to bring the outstanding taxes for 2008 to 2010 current. Pursuant to the terms of the mortgage, as indicated above, failure to pay municipal property taxes as they fall due also constitutes a default of the mortgage.
[9] On October 21, 2014, the defendant was advised that the municipal taxes for 2013 were in arrears in the amount of $7,277.42. Taxes for 2014 remain outstanding.
[10] The first mortgage matured on April 11, 2014 and has not been extended or renewed. A Notice of Sale under Mortgage was issued by ING on October 13, 2010.
[11] As at November 10, 2014, the amount of $496,569.15 was owing on the first mortgage, which, pursuant to the terms of the mortgage, bears interest at the rate of 3.8% per annum, being the rate equal to ING's prime rate is declared from time to time plus 0.8%. Ms. Starkman has admitted pursuant to examinations for discovery and undertakings given thereat that she is indebted under the first mortgage in the amount of $348,575.53 as at August 10, 2010, together with interest thereon at the rate of 1.9% per annum.
Second Mortgage-Equity Line of Credit Mortgage
[12] As regards the second mortgage, Ms. Starkman is indebted to Home Trust pursuant to an Equity Line Visa Credit Card which is collaterally secured by a second mortgage dated July 16, 2006 and made between Ms. Starkman and Home Trust. Pursuant to the second mortgage, Ms. Starkman charged the property securing the principal sum of $125,000. The amount owing under the second mortgage as at November 10, 2014 is $146,720.73. Ms. Starkman has acknowledged and admitted she is indebted to Home Trust in the sum of $118,207.35 as at June 28, 2011, together with interest at the rate of 6.99% per annum.
[13] As regards this second mortgage, Home Trust was granted Judgment and a Writ of Possession as regards default in payment that occurred on July 9, 2010. Home Trust issued a Notice of Sale on August 31, 2010 and the statement of claim on October 12, 2010. Default judgment was granted on December 9, 2010 and a Writ of Possession on March 4, 2011.
[14] Prior to the above-noted proceedings, in May of 2010, Home Trust had agreed to permit Ms. Starkman to pay a fixed monthly amount of $834.19 on the second mortgage and also agreed to reduce the interest thereon from 7.99% per annum to 6.99% per annum. Despite this agreement, Ms. Starkman never made full or on-time monthly payments after the agreement had been reached. As regards this motion, Home Trust has maintained the second mortgage interest rate of 6.99% per annum despite the defendant's non-compliance with the terms of the agreement.
[15] Pursuant to the terms of the two mortgages, the defendant is to pay all solicitors' charges incurred with respect to any action taken to collect or otherwise enforce the mortgages on a substantial indemnity basis.
[16] While the defendant admitted that the last payments made on the mortgages were in 2011, she disputed the amounts owing and the interest charged thereon. She indicated that she was qualified, based on her education, to determine the interest accruing under the mortgages. She took the position that the mortgage companies had wrongly charged accrued interest. She did not have any expert opinions in this regard, nor any alternate calculations of interest. Nevertheless, she insisted that the companies had both been incorrect in their calculation of interest accruing on the mortgages, and maintained that her method of calculation of interest was the correct method to be applied.
The Law and Analysis
[17] Pursuant to Rule 51.06, where an admission of the truth of a fact or the authenticity of a document is made in the examination for discovery of a party or a person examined for discovery on behalf of the party, any party may make a motion to a judge in that proceeding for such order as the party may be entitled to on the admission without waiting for the determination of any other question between the parties, and the judge may make such order as is just.
[18] Summary judgment may be granted for part of the claim if there is an admission that satisfies the "no genuine issue for trial test" and the partial summary judgment is consistent with the admission made.
[19] In determining whether partial summary judgment should be granted, the following principles are applicable:
the admission must be clear and definite;
the admission must be of such clear facts as to show the party is clearly entitled the order asked for;
the rule does not apply where there is any serious question of law to be argued;
the rule does not apply where there is a serious question of fact outstanding;
the motion is based on admissions and proof of facts is not permitted;
the motion should be granted only on a clear case and much care must be taken not to take away the right of trial on viva voce evidence;
to succeed, the moving party must show that there is a clear admission on the face of which it is impossible for the defendants to succeed.
8150184 Canada Corp. v Rotisseries Mom's Express Limited, [2014] O.J. No. 587; Sigroum Office Management v Milanis, [1985] O.J. No. 1663.
[20] Based on undertakings given at the examination for discovery of Ms. Starkman, and the relevant answers provided thereafter by Ms. Starkman, both of which were in evidence before this Court, Ms. Starkman made two admissions in her written answers to undertakings as follows:
With respect to the first mortgage, Ms. Starkman admitted that the amount owing as at August 10, 2010, was $348,575.53, with interest thereon at the rate of 1.9% per annum;
With respect to the second mortgage, Ms. Starkman admitted that the amount owing as at June 28, 2011 was $118,207.35, with interest thereon at the rate of 6.99% per annum.
[21] It is on the basis of those two admissions that the moving party seeks partial summary judgment.
[22] In considering the applicable principles to be applied in determining whether an order should be granted, I find that the admissions are clear, written responses given by Ms. Starkman in answer to the undertakings given at her examination for discovery. She clearly admitted that the amounts stated in those undertakings are owing. There is no issue of law to be tried with respect to the admitted amounts, nor any question of facts outstanding. There is a clear admission of the amounts owing as at the specified dates, as well as the rate of interest accruing on each mortgage.
[23] Based on the evidence before me, Home Trust is entitled to an order that the admitted amounts are owing.
Rule 20 and Summary Judgment
[24] Rule 20 provides for summary judgment where there is no genuine issue requiring a trial with respect to a claim or defence. Rule 20 provides a means of avoiding protracted and expensive litigation where there is no requirement for a trial because there is no genuine issue of fact. The summary judgment rule should be liberally construed to secure the most expeditious and least expensive determination of a proceeding on its merits.
[25] The Supreme Court of Canada, in Hyrniak v Mauldin, 2014, SCC 7 and Bruno Appliances and Furniture Inc. v Hyrniak, 2014 SCC 8, has recently reinterpreted Rule 20, taking into account the recognized need for access to justice for the majority of Canadians. The Supreme Court held that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. It found that the Court of Appeal, in Combined Air Mechanical Services Inc. et al v. Fleisch et al, 2011 ONCA 764, placed too high a premium on the "full appreciation " of evidence that can be gained in a conventional trial, given that such a trial is not a realistic alternative for most litigants. It held that a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
[26] On a motion for summary judgment, the judge must first determine if there is a genuine issue requiring trial based only on the evidence before the judge without using the judge's new fact-finding powers.
[27] There will be no genuine issue requiring a trial if the summary judgment process provides the motion judge with the evidence required to fairly and justly adjudicate the dispute on the merits within the meaning of Rule 20.04(2)(a) and is a proportionate, more expeditious and less expensive means to achieve a just result. Where a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceedings at trial would generally not be proportionate, timely or cost-effective. However, a process that does not give the judge confidence in conclusions to be drawn can never be the proportionate way to resolve the dispute.
[28] Madam Justice Karakatsansis, writing for the Court, observed as follows in the companion case, Bruno Appliances, supra, at paragraph 22:
The motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is the proportionate, more expeditious and less expensive means to achieve a just result. If there appears to be a genuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice.
[29] To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him/her to draw the inferences necessary to make dispositive findings under Rule 20.
[30] The Supreme Court recognized that concerns about credibility or clarification of evidence can often be addressed by calling oral evidence on the motion itself, using the powers given to the court pursuant to Rule 20.04(2.1). However, it also recognized that there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.
[31] The enhanced fact-finding powers granted to motion judges in Rule 20.04(1.1) may be employed on a motion for summary judgment unless it is in the "interest of justice" for them to be exercised only at trial. The Supreme Court observed that inquiry into the interest of justice to be served by summary judgment must be assessed in relation to the full trial and the relative efficiencies of proceeding by way of summary judgment as opposed to trial, including the cost and speed of both procedures, the evidence available at trial versus that on the motion, as well as the opportunity to fairly evaluate such evidence.
[32] The parties must each "put their best foot forward". A party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. The court is entitled to assume that all of the evidence the parties intend to rely on at trial is before the court.
[33] As set forth in greater detail below, on the evidence before me, I am satisfied that I am able to find the necessary facts, draw inferences and resolve the issues in dispute necessary to make dispositive findings. I do not find it necessary to resort to the use of the powers granted to the court pursuant to rule 20.04(2.1) to do so. I find that there is no genuine issue requiring a trial as regards the partial summary judgment sought and, further, that partial summary judgment as regards the issues in dispute is the most proportionate, timely and cost-effective means of resolving those issues and proceeding with the rest of the action.
[34] In the present case, what is being sought is partial summary judgment based on admissions made by the defendant in written answers provided in response to undertakings given after examination for discovery. The admissions are clear and there is no genuine issue for trial in this regard. I am satisfied, on all of the evidence before me and the submissions of the moving party and Ms. Starkman, that Home Trust is entitled to partial summary judgment on the amounts admitted by Ms. Starkman as owing, with interest accrued thereon, at the rates as admitted by Ms. Starkman in her written answers to undertakings.
[35] As regards the balance of the action, that is not the subject of this motion for partial summary judgment. Rather, it will be determined in a trial of the remaining issues. I direct that said trial be proceeded with expeditiously.
Order
[36] I order judgment in favour of the defendant, Home Trust, payable by Ms. Starkman, as follows:
As regards the first mortgage, judgment in the amount of $348,575.53 as at August 10, 2010, together with interest thereon at the rate of 1.9% per annum from the said date to the date of judgment;
As regards the second mortgage, judgment in the amount of $118,207.35 as at June 28, 2011, together with interest thereon at the rate of 6.99% per annum from the said date to the date of judgment;
Leave to issue a Writ of Possession in respect of the said premises; and
Post-judgment interest pursuant to the provisions of the courts of Justice act; its costs of this motion on a substantial indemnity basis.
Costs
[37] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.
Carole J. Brown, J.
Released: March 18, 2015
COURT FILE NO.: CV-11-428137
DATE: 20150318
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rhonda Michelle Starkman
Plaintiff
– and –
Home Trust Company
Defendant
REASONS FOR JUDGMENT
Carole J. Brown, J.
Released: March 18, 2015