Citation and Court Information

Citation: 1746534 Ontario Inc. v. Phillips, 2015 ONSC 2232 Newmarket Court File No.: CV-10-101422-SR Date: 2015-04-07

Ontario Superior Court of Justice

Between:

1746534 Ontario Inc., Plaintiff

– and –

Sheri Phillips, Defendant

Counsel: J. Copelovici, for the Plaintiff/Moving Party G. Luhowy, As Agent for the Defendant

Heard: January 22, 2015

Before: McDermot J.

Introduction

1This was the return of a motion originally brought by the defendant mortgagor, Sheri Phillips on April 8, 2014. That motion was for an order to set aside the default judgment in this matter made on December 14, 2010, for a stay of a Writ of Possession dated April 4, 2014 as well as an order for an accounting of the mortgage debt in this matter. The Plaintiff brought a cross-motion to set the amount due and owing under the mortgage.

2The property has now been sold and presumably the motion to set aside the Writ of Possession has now been abandoned.

3Mr. Luhowy did not argue the Defendant’s claim to set aside the judgment granted on December 14, 2010. Counsel appear to have agreed that this motion was to set the amount due on the mortgage without reference to amount set out in the default judgment (other than the issue of costs payable under the judgment). As well, the Defendant did not provide evidence that would support a finding that the judgment be set aside pursuant to Rule 19.08 of the Rules of Civil Procedure. She did not indicate in her material why she failed to provide a Statement of Defence and she also failed to provide evidence that she was not served with the Statement of Claim or that it somehow did not come to her attention. She did not explain her delay in bringing the motion to set aside the judgment once it came to her attention, or indeed evidence as to when it came to her attention. That motion is dismissed.

4For the reasons set out below, I have determined that $73,327.71 be paid out of court to the Plaintiff including a per diem of $10.70 to April 10, 2015. I have also determined that the Plaintiff is entitled to costs of $33,278.07 and taking into accounts amounts already disbursed for costs, the sum of $23,278.07 shall be paid out of court to the Plaintiff’s solicitor, Jack Copelovici. The remaining funds shall be paid to the Defendant.

Litigation History

5This matter arose from a mortgage that the defendant Sheri Phillips gave to the plaintiff 1746534 Ontario Inc. (“1746534”). The mortgage was a private mortgage given by the defendant on her residence at 284 Douglas Road in Richmond Hill, Ontario for $308,000 with an interest rate of 8.5%. The mortgage was registered on June 17, 2010.

6Apparently Ms. Phillips quickly defaulted in payment of the mortgage (although this is denied by Ms. Phillips).¹ A Statement of Claim was issued on October 25, 2010 and served substitutionally pursuant to the order of Lauwers, J. made November 12, 2010. The defendant did not serve or file a Statement of Defence and was noted in default on December 14, 2010. Judgment was signed on that day for $334,742.74 plus costs of $1,458.

7Nothing further was done until September, 2012. On September 11, 2012 the plaintiff obtained an order for a Writ of Possession without notice pursuant to Rule 60.10 of the Rules of Civil Procedure.²

8That Writ of Possession was not enforced and Ms. Phillips remained in possession of her property. In fact between the time judgment was granted in 2010 and now the mortgage was renewed on three occasions in August, 2011, 2012 and 2013. Renewal fees of $5,000 for each renewal were charged to the Defendant’s account; Ms. Phillips has agreed that those renewal fees are due and owing.

9In October, 2013, Ms. Phillips entered into an agreement of purchase and sale of her home, with a closing date of January 6, 2014. She says that she contacted the mortgagee in October, November and December, 2013 requesting a discharge statement, and that she still had not received a discharge statement by December 31 of that year. She says that her lawyer, Mr. Luhowy, also wrote to the mortgagee on two occasions requesting a discharge statement without result.³

10The discharge statement was, in fact, faxed to Mr. Luhowy on December 30, 2013. The statement was undated and and based its starting point on the judgment obtained on December 14, 2010. In addition to the $336,200.74 inclusive of costs set out in the judgment, the statement provided that some 40 mortgage payments were outstanding since the judgment for a total of $87,266.40 plus interest on outstanding payments since the judgment. The Plaintiff demanded payment of $450,761.21 plus a further $8,800 in legal fees for enforcement of the mortgage⁴ for a total of $459,561.21 for a discharge of the mortgage.

11The statement was prepared in an incompetent manner and it was grossly erroneous. It was undated, and it was unclear as to the payout amount on closing. Also, only 36 months had elapsed between the judgment in December, 2010 and the discharge statement; the statement claimed that 40 payments were outstanding. Further, the discharge statement seemed to say that no mortgage payments had been made since registration.⁵ However, according to the Plaintiff’s own figures provided as evidence on this motion, by December, 2014, taking into account a large payment made on the mortgage in November, 2014, there were only 10 missed payments and 2 partial payments since the judgment. As well, contrast the discharge amount of $459,561.21 above with the Plaintiff’s discharge statement from August 17, 2014 (by which point the Plaintiff had made no payments on the mortgage since January, 2014) which claimed $424,939.34 in total inclusive of legal fees.

12Ms. Phillips says that she was forced to extend the sale of the property until March 31, 2014 because of the excessive amount claimed in the discharge statement. This would appear to be borne out by the terms of the Amendment to the Agreement of Purchase and Sale dated January 8, 2014 which extended the sale and also provided that it was “conditional until 11:59 p.m. March 20th, 2014 upon the Seller receiving a Discharge Statement satisfactory to the Seller [from] the existing mortgagee on title and being in a position to discharge the said mortgage on the completion date.”⁶ According to Mr. Luhowy in his submissions, there would have been insufficient funds to close the transaction were the discharge statement to stand.

13However, it appears that little was done between the original closing date and March 31, 2014. The sale did not close, according to the Defendant, because she could not “obtain a proper payout statement.” Although the Defendant had a number of months to deal with that issue, her material lacks any significant details as to the efforts she made to address the now acknowledged inaccuracies in the discharge statement.

14In March 27, 2014 the plaintiff again requested and received from me a further order that a Writ of Possession issue. The Writ of Possession was issued on April 4, 2014 and the Plaintiff’s attempted enforcement of it resulted in the Defendant’s motion originally returnable April 8, 2014 and adjourned to now.

15As noted, the defendant brought a motion for number of heads of relief including an order for stay for the Writ of Possession issued on April 4, 2014. On April 8, 2014 Ferguson, J. stayed the Writ of Possession on an interim basis. Mr. Copelovici, the new solicitor for 1746534, served reply materials and the parties returned before Ferguson J. on June 11, 2014. At that time, she adjourned the motion to a long motion to be argued during the trial sittings commencing November 17, 2014. Cross-examinations of the defendant took place on September 22, 2014.

16Since then several motions have been served by the Plaintiff. The first was a motion returnable October 14, 2014 to dismiss the defendant’s motion and strike her affidavit for failure to answer undertakings given at the cross-examinations. Vallee, J. ordered that the plaintiff answer her undertakings within a certain period of time and that the motion to strike be adjourned to December 23, 2014. She also gave the Plaintiff leave to bring a cross-motion for judgment on the mortgage and for possession. That motion was served and filed on October 24, 2014.

17Pursuant to the June 11, 2014 order of Ferguson J. and the subsequent order of Vallee J., the parties appeared in front of me on December 5, 2014 to argue the motion and cross-motion. At that point in time Ms. Phillips confirmed that there was a pending sale of the property. Because of the sale I adjourned the motion as it became apparent that the only issue would be the amount owing under the mortgage assuming the sale proceeded. I ordered $448,780.82 paid into court from the sale proceeds of the home. The motion was adjourned to December 23, 2014.

18The parties appeared in front of me on December 23, 2014. At that point in time Mr. Luhowy, who had been in the background until then, was present and requested to be permitted to act as agent for the defendant for the purposes of argument of the motion. Over Mr. Copelovici’s objections, I granted Mr. Luhowy’s request. At that point in time was it was confirmed that the sale had closed. The funds had been paid into court pursuant to my order of December 5, 2014. The parties agreed that $347,501.22 be paid out of court to the Defendant on account of mortgage principal, missed payments and costs. The matter was adjourned for argument as to the remaining amounts owing under the mortgage and costs on January 22, 2015.

Analysis

19The parties argued the issues before me on January 22, 2015. At that time, and as provided in the affidavit of the Plaintiff sworn December 23, 2014, the parties agreed on certain items owing by the defendant to the plaintiff as set out in paragraph 5 of the affidavit of Luisa Araujo sworn January 7, 2015, as follows:

1. Renewal fees - $15,000
2. Administration Fee - $1,000
3. NSF Fees - $1,250
4. Inspection Fees - $1,500

20Accordingly the remaining issues to be argued as follows:

a) The plaintiff claimed that there remained owing $45,977.17 for interest on the mortgage. Although the defendant agreed with the method of calculation of the interest outstanding there were differences on several payments that the plaintiff said were not made and the defendant said were made. As well, Mr. Luhowy appeared to argue that the interest claim ought to be reduced because of the defective discharge statement issued in December, 2013.

b) The plaintiff claimed penalties on default of the payment of the mortgage. The defendant argued that in light of the circumstances and the facts concerning any alleged defaults those amounts were not owing.

c) Mortgage statement fees, the plaintiff claims $1,250 for mortgage statement fees. The defendant denies payment is owing for this especially in light of a statement was wholly inaccurate issued in December, 2013 which she says resulted in her inability to sell the property.

d) The plaintiff claims costs set out in the original judgment of $1,967.30.⁷ The defendant states that this judgment should never have been granted and as she asked to set it aside states that these costs are not owing and not properly assessed.

e) The Plaintiff also seeks costs of these motions in the amount of $36,291.07. The sum of $10,000 has already been paid out of court towards these costs. The Defendant states that it would be unconscionable to order costs in this amount in light of the Plaintiff’s conduct in this matter, including the discharge statement noted above, which was excessive and inaccurate, and which the Defendant says also frustrated the closing of a sale of the property.

Mortgage Interest

21Plaintiff’s counsel, Mr. Copelovici, calculated interest on payments missed by the Defendant and compounded those payments monthly. He was permitted to do this under the terms of the mortgage, which provided for calculation of interest on a monthly basis,⁸ as well as the Standard Charge Terms which allow for compounding of interest “at the rate provided for in the Charge” if “not paid within the interest calculation period provided in the Charge”.⁹ Mr. Copelovici did not calculate interest on payments which were late but only on payments which were not made by the Defendant.

22Mr. Luhowy did not take exception to the method of calculation of interest by Mr. Copelovici. His client’s affidavit, however, did take issue with some of the payments which Ms. Araujo said were not paid.

23A review of the chart prepared by Ms. Araujo of mortgage payments made by Ms. Phillips¹⁰ compared to what Ms. Phillips says that she actually made¹¹ discloses few differences as to the payments made. As acknowledged by Mr. Luhowy in argument, Ms. Phillips’ payment history was sporadic at best, and after January, 2014, she made no payments whatsoever on the mortgage. She casts blame on the mortgagee for this; she says that had she received an accurate discharge statement, she would have sold her home without any further problem. In any event, there were few differences in the payments which were actually made as follows:

a. Ms. Phillips says that she paid the August, 2010 payments but cannot find a record of that payment. Ms. Araujo on behalf of 1746534 says that this payment was not made.

b. Ms. Phillips says she paid the mortgagee $1,000 in October, 2012, and then a further $1,000 and $1,081.88 during the following month. Ms. Araujo says that there was a $1,000 payment in October, 2012 and then a subsequent payment in $1,081.88 in November, 2012. Ms. Phillips provided proof of a payment of $1,000 in October, 2012 and a subsequent payment of $1,081.88 in November, 2012; she did not provide evidence of the second $1,000 payment having been made in November as she has alleged.

c. Ms. Phillips says she made the mortgage payment in May, 2013, but Ms. Araujo deposes that she did not receive the payment. Ms. Phillips has a record of the withdrawal of the funds in cash from her account, but cannot find evidence of the May, 2013 payment to the mortgagee.

d. Ms. Phillips says she paid the August, 2013 payment and that this was acknowledged by Mr. Rosen in correspondence to her or her solicitor. She says that this correspondence was attached as an exhibit to her affidavit sworn in April, 2014. However, that correspondence is not attached to either of her affidavits sworn April 8 or December 23, 2014 and there is no other evidence of the payment other than, again, the withdrawal of the funds in cash from Ms. Phillips’ account.

24Otherwise, the parties are agreed as to the payments made to and received by the mortgagee.

25Regarding all four of these issues, Ms. Phillips was unable to provide proof of the payment having been made to 1746534. The person in this matter who is in a position to provide evidence of the payments is the payor, as she has exclusive access to her bank accounts whereby the payments may be proven. It appears that Ms. Phillips kept careful records of the vast majority of the payments that she made to the Plaintiff. As she has the best access to the proof of payments having been made, the onus is on her to prove that she made the payments that she said she did. She has not done so.

26Accordingly, I find that the payments that were made by Ms. Phillips on the mortgage were as set out in the chart attached as Exhibit 1 to Ms. Araujo’s affidavit sworn January 7, 2015.

27The calculation of the amount due under the mortgage prepared by Ms. Phillips¹² does not appear to include any calculation of interest payable under the mortgage. There is no question that the mortgage permits interest to be chargeable on the amount outstanding under the mortgage and that it further permits interest to be compounded on a monthly basis. Based upon the argument made by Mr. Luhowy, I expect that the mortgagor is arguing that she should not have to pay interest because of the flawed discharge statement issued in December, 2013, for which she blames the failure of the sale of the home at that time. Mr. Luhowy pointed out that this whole thing would have been avoided had the discharge statement been accurate at that time.

28I do not find the flawed discharge statement provided on December 30, 2013 to be relevant to the amount of interest payable by the mortgagor.

29Firstly, I do not believe that Ms. Phillips made diligent efforts to address the issue of the amount of the discharge statement, or to determine the amount actually owing under the mortgage for the purpose of selling her property during the months between January and March, 2013. It appears that she did extend the transaction from January to March, 2014 in order to sort out the amount owing under the mortgage. However, Ms. Phillips does not outline in any of her affidavits the efforts that she made to obtain a proper discharge statement. There are no copies of letters from her lawyer demanding a revised discharge statement or outlining the obvious flaws in the December, 2013 discharge statement. All that Ms. Phillips states in her affidavit is that “despite my best efforts to obtain a proper payout statement from Louise, I was unable to do so and [as] such was unable to close the sale on March 31, 2014.”¹³ Ms. Phillips provides no particulars whatsoever of those “best efforts”.

30Mr. Copelovici points out that Ms. Phillips had a remedy; she could have applied under s. 12 of the Mortgages Act¹⁴ to pay the amount claimed under the mortgage into court and obtain a discharge of the mortgage. Ms. Phillips was cross-examined about this, and had no real answer as to why this was not done; however, Mr. Luhowy pointed out in argument that based upon the purchase price of the lands, and the outstanding taxes, there would not have been sufficient funds to pay into court.

31I am not, however, convinced that there was any need to pay the funds into court. It is apparent from the affidavit of the Defendant sworn April 8, 2014 that she was aware of the judgment in this matter at least by the time she received the discharge statement or shortly thereafter.¹⁵ She had extended the transaction for more than two months and she certainly had the ability and the time to move to set aside the judgment and obtain a declaration as to the amount owing under the mortgage as she is presently doing. She did not do so. I do not find that the inability to pay moneys into court to be an impediment to a remedy to determine the amount owing under the mortgage in order to close the transaction.

32In any event, Ms. Phillips has not made a claim for set off for the losses that she suffered from the failure of the sale transaction. And in fact, I do not see that she did suffer a loss as a result of the failed sale of the property in early 2014. She complained that she had to pay more in realty taxes as a result, but she was living in the property and the tax certificate filed shows that she had not paid her taxes from 2012 on. Considering that she continued to live in the property, her inability to close is not an excuse for not paying her realty taxes or continued interest payments on the mortgage. In any event, she did not pay the mortgage after that date or explain why she did not.

33Ms. Phillips also appears to have paid no penalty as a result of the failed sale in March, 2014; in fact, the vendor attempted to have her sign an amendment to the agreement of purchase and sale which would have resulted in a $6,000 payment to him if the deal did not close and Ms. Phillips did not sign that amendment. As well, when she finally sold her property in December, 2014, she sold it for $559,000, some $34,000 more than the sale price in 2013. There is no demonstrable loss to the Defendant from the inaccurate discharge statement; neither did the Defendant show that she made “best efforts” as claimed by her in correcting the discharge statement provided by Mr. Rosen.

34Accordingly, I find that interest due and owing under the mortgage as of the date of argument of the motion is $45,977.17 as set out in paragraph 5 of Ms. Araujo’s affidavit sworn January 7, 2015.

Penalties on Default

35The Plaintiff claims a penalty of $6,544.98 which is a three month interest penalty characterized as a “penalty on default of payment of Mortgage.” According to Mr. Copelovici, this is a penalty chargeable on a mortgage in default under s. 17 of the Mortgages Act.

36The mortgage also contains a clause which provides for a three month penalty on default. The provision states that “should the mortgage (sic.) commence action due to default under the Mortgage that the Mortgagee at it’s (sic.) option shall be entitled to charge an additional fee equivalent to three (3) Months interest…”¹⁶

37There was an initial default under the mortgage which was the Defendant’s failure to make the August, 2010 payment. Notwithstanding the Defendant’s claim that she made that payment, she was unable to prove that, and I have already found that this payment was not made. That failure to make payment warranted the Plaintiff commencing these proceedings. Although the action was not prosecuted consistently or on a timely basis, there was no serious issue taken that there was a default and no evidence was provided by the Plaintiff as to why the default judgment obtained in December, 2010 should be set aside.

38There were numerous missed and late payments under the mortgage since that date. Mr. Luhowy acknowledged during argument that his client’s payment history under the mortgage were “not stellar.”

39The penalty was chargeable upon default under s. 17 of the Mortgages Act. The penalty was further chargeable under the mortgage once this action was commenced, and the issue of the discharge statement post-dated the commencement of these proceedings by three years. Even were the Plaintiff’s failures to pay the mortgage subsequent to December 30, 2013 related to the flawed mortgage discharge statement then issued, there were a number of missed and late payments prior to that date and the mortgage payments were always in arrears after August of 2010. Even had the mortgage statement been accurate and had the October, 2013 sale closed, this penalty could still have been charged by the Plaintiff at that time.¹⁷

40The penalty on default claimed by the Plaintiff of $6,544.98 is chargeable and payable by the Defendant.

Mortgage Statement Fees

41The amount claimed by the Plaintiff for mortgage statements is $1,250 based upon the mortgagee’s entitlement to charge $250 per statement under the mortgage. In argument, Mr. Copelovici acknowledged that he had only proven the issuance of two statements and that he was willing to reduce this amount to $500.

42It is noted that one of the two statements for which this charge is claimed was the statement which was issued in December, 2013.

43It is unfair to claim payment for the discharge statement issued in December, 2013, which Mr. Copelovici agreed during argument was inaccurate. Whatever remedy the mortgagor may have had upon receipt of that statement, it was, on its face, prepared in an incompetent manner.

44As such, the mortgagee is entitled to a payment for only one mortgage discharge statement in the amount of $250 under this heading.

Insurance

45The Plaintiff claims an insurance placement fee of $750 plus the cost of placing insurance of $308 for a total of $1,058. Ms. Phillips did not admit to liability for this amount in her affidavit sworn December 23, 2014.

46Ms. Phillips gave an undertaking to provide proof of her insurance coverage naming 1746534 as a first loss payee at her cross-examination on September 22, 2014. Ms. Araujo stated in her affidavit (confirming and adopting the evidence of Kim Vu from October 23, 2014) that this undertaking was never answered and the Plaintiff was therefore forced to obtain insurance at a cost to it of $231.66.

47The Defendant did not address this issue in her affidavit of December 23, 2014.

48The mortgage permits the charging of $750 as an administrative fee for the placement of insurance. The Plaintiff is entitled to charge its administrative fee plus $231.66 for placement of insurance coverage on the property for a total of $981.66.

Amount Owing

49Therefore, the Plaintiff is owed the sum of $72,503.81 calculated as follows:

a. Mortgage Interest - $45,977.17 b. Renewal fees - $15,000.00 c. Penalty on Default - $6,544.98 d. Administration Fee - $1,000.00 e. NSF Fees - $1,250.00 f. Inspection Fees - $1,500.00 g. Mortgage statements $250.00 h. Mortgage Insurance Placement Fee - $750.00 i. Cost of Insurance - $231.66 j. Total - $72,503.81

50I agree with Mr. Copelovici that interest should be paid on the outstanding amount for mortgage interest under the rate set out in the mortgage. I have confirmed that his per diem rate of $10.70 is accurate. The Plaintiff shall have a per diem rate from December 23, 2014 to April 10, 2014 which would total $823.90.¹⁸

51Therefore, there shall be an order that the sum of $73,327.71 be paid from court to the Plaintiff.

Costs

52Ms. Phillips has not agreed to pay the costs of $1,458 granted under the judgment of December 14, 2010.

53In addition, the Plaintiff claims costs on a full indemnity basis of $36,291.07 inclusive of disbursements and HST, as well as a further $1,695 inclusive of HST for Mr. Copelovici’s attendance on January 22, 2015. The total costs claimed by Mr. Copelovici are therefore $37,986.07.

54Regarding the costs assessed in the judgment, I have dismissed the motion to set aside the judgment against the Defendant; the issue was largely moot as the property has been sold. Even were I going to set aside the judgment, however, costs thrown away would have been awarded to the Plaintiff and $1,458 is not an unreasonable amount for those costs. The amount of costs under the original judgment shall stand.

55Regarding his costs, Mr. Copelovici is correct when he says that the mortgage permits the mortgagee to claim costs on a full indemnity basis. In argument, Mr. Luhowy did not take exception to the amount claimed for costs in the Plaintiff’s Costs Outline. The costs issue, however, again brings us back to the discharge statement provided in December, 2013, and whether that discharge statement resulted, as submitted by Mr. Luhowy, in the litigation that followed. He effectively says that the conduct of the Plaintiff in providing that inaccurate discharge statement caused these proceedings as the transaction would have otherwise closed and this litigation unnecessary. His objection to the costs appears to be based upon the mortgagee’s conduct: see Rule 57.01(1)(e) and (f).

56I have already determined that Ms. Phillips does not appear to have suffered any sort of loss as a result of the flawed discharge statement sent out by Mr. Rosen. In fact, she profited by the delay considering the terms of the new sale.

57I have also determined that Ms. Phillips has not provided any particulars of the efforts that Ms. Phillips made in order to correct the discharge statement so that she could close the sale of her home scheduled to close on March 31, 2014. I do not find that she has established that she made best, or indeed, reasonable efforts to obtain a proper discharge amount from the Plaintiff.

58I therefore also do not believe that the flawed discharge statement caused this litigation. Ms. Phillips says that if she had received an accurate statement from 1746534, she would have closed her sale and she would not have had to commence these proceedings. However, I repeat that she did have remedies available to her and does not appear to have taken those steps on a timely basis to correct the amount due under the mortgage. Because of this, she has not demonstrated that the failure to close that sale resulted from the flawed discharge statement issued in December, 2013. Were we dealing with this matter in March of 2013, my determination might be different; however the present litigation results directly from Ms. Phillips’ subsequent default under the mortgage which resulted in the second writ of possession and Ms. Phillips’ motion of April 8, 2014.

59Finally, I agree with Mr. Copelovici when he says that he has been “fighting ghosts” in this litigation. Specific to this is the Defendant’s response to the undertaking that she gave on September 22, 2014 to provide the amount that she says was owing under the mortgage; instead of telling Mr. Copelovici the amount she said was owing, she answered the undertaking by saying that she would have to speak with an accountant. I understand that she was largely unrepresented in this dispute; however, that is not the Plaintiff’s problem. I agree with Mr. Copelovici that the amount that is claimed for costs was largely increased by the failure of the Defendant to take a determinative position as to the amount owing under the mortgage.

60Moreover, when considering conduct, I must take into account that the Defendant had defaulted on the mortgage on numerous occasions, and failed to answer her undertakings on a timely basis, if at all.

61Finally, it is apparent to me that the Plaintiff has been largely successful in this motion and in these proceedings.

62Accordingly, I find that the costs claimed by the Plaintiff are the responsibility of the Defendant and chargeable under the mortgage. I am going to deduct from this amount, the costs under the original judgment of $1,458. I am also going to deduct the $750 in costs awarded by Lauwers J. for the order for substituted service which was paid out of court on December 23, 2014. Both these amounts were presumably included in the $8,000 in costs claimed by Mr. Rosen and set out in the Costs Outline. If I did not deduct those amounts, the Plaintiff would receive double compensation for those costs.

63I am also going to deduct from Mr. Copelovici’s costs amount the costs of $2,500 awarded by Vallee J. on October 14, 2014 which was also paid out of court to the credit of the Plaintiffs on December 23. A review of the Costs Outline confirms that the costs claimed in that outline included Mr. Copelovici’s preparation for and attendance at the October motion before Vallee J. and this would therefore also be double compensation to the Plaintiff.

64The Plaintiff shall therefore have its costs of $33,278.07. Deducted from this is the $10,000 paid out of court already to the credit of the Plaintiff. Accordingly a further sum of $23,278.07 shall be paid out of court to the Plaintiff’s solicitor.

Order

65Therefore, there shall be a final order as follows:

a. There shall be a declaration that the amount of $73,327.71 remains due and owing on the mortgage in this matter and that this sum shall be forthwith paid out of court to the Plaintiff.

b. The Plaintiff is entitled to costs of $33,278.07 and taking into accounts amounts already disbursed for costs, the sum of $23,278.07 shall be paid out of court to the Plaintiff’s solicitor, Jack Copelovici.

c. The remaining funds held to the credit of this action by the Accountant, Superior Court of Justice, shall be forthwith paid to the Defendant.

McDERMOT J.

Footnotes

1. 1According to the records of the mortgagee, Ms. Phillips did not make the August, 2010 payment. In her affidavit sworn December 23, 2014, Ms. Phillips states that she “verily believes” that she made that payment although she could not produce a receipt or cancelled cheque.
2. 2R.R.O. 1990, Reg. 194
3. 3Although the Defendant states in her affidavit sworn April 8, 2014 that she had attached the letters from her lawyer requesting a discharge statement as Exhibit L1, her exhibits were unlettered and I was unable to find copies of those letters attached to that affidavit.
4. 4See the correspondence from David Rosen dated December 30, 2014 attached as Ex. “M” to Ms. Phillips’ affidavit sworn April 8, 2014.
5. 5The statement said that no mortgage payments had been made but that there had the borrower had paid the lender “directly” the sum of $26,859.86, or approximately 12 mortgage payments. This again was inaccurate according to the Plaintiff’s own figures, which confirmed that of the 41 months which had elapsed from registration to the date of the statement, the Defendant had made 29 full payments, and two partial payments of $1,000.
6. 6Amendment to Agreement of Purchase and Sale attached as an unlettered exhibit to the Defendant’s affidavit sworn April 8, 2014.
7. 7This figure is inclusive of interest.
8. 8See Ex. E to the affidavit of Sheri Phillips sworn April 8, 2014
9. 9See paragraph 6 of the Standard Charge Terms found at Ex. 8 of the affidavit of Luisa Araujo sworn January 7, 2015.
10. 10Ibid, Ex. 1
11. 11Affidavit of Sheri Phillips sworn December 23, 2014 at para. 20 and Ex. A to that affidavit.
12. 12Set out in para. 28 of the affidavit of Sheri Phillips sworn December 23, 2014.
13. 13Paragraph 45 of the affidavit of Sheri Phillips sworn April 8, 2014.
14. 14R.S.O. 1990, C. M.40
15. 15See paragraph 39 of the affidavit of Sheri Phillips sworn April 8, 2014.
16. 16Mortgage found at Ex. C of the Plaintiff’s affidavit sworn April 8, 2014.
17. 17In fact, this is one legitimate claim that could have been inserted into the December, 2014 discharge statement and which was not.
18. 1877 days @ $10.70 per diem