CITATION: The Bank of Nova Scotia v. Lavoie, 2015 ONSC 7483
COURT FILE NO.: 12-56087
DATE: 2015/12/02
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: The Bank of Nova Scotia, Plaintiff (Responding Party)
and
Mireille Lavoie, Defendant (Moving Party)
BEFORE: Justice Liza Sheard
COUNSEL: Meghan E.W. O’Halloran, Counsel for the Plaintiff (Responding Party)
Mireille Lavoie, Self-Represented
HEARD: In writing
ENDORSEMENT
Introduction
[1] This motion is brought by Mireille Lavoie (“Lavoie”) who seeks to appeal from the order of Justice Robert Smith dated August 4, 2015. That order was itself an appeal from the order of Justice Patrick Smith, dated May 19, 2015.
[2] The May 19, 2015 order dismissed the motion brought by Lavoie to set aside the Default Judgment dated May 28, 2013 entered at Ottawa on June 4, 2013 as Document No. 1843, Book No. 73-13. Costs of the motion were fixed in the amount of $5,000 and payable by Lavoie to the plaintiff, the Bank of Nova Scotia (“BNS”).
[3] Lavoie apparently re-filed the motion to set aside the Default Judgment that had already been heard by Justice Patrick Smith on May 19, 2015. This new motion was returned before Justice Robert Smith on August 4, 2015.
[4] By order dated August 4, 2015, Justice Robert Smith dismissed Lavoie’s motion with costs to BNS, fixed at $1,000, inclusive of disbursements and HST.
[5] The defendant appeals from the August 4, 2015 order of Justice Robert Smith.
Background
[6] The affidavit of John E. Hamilton contains a chronology of events and copies of the pleadings and proceedings. It is found in the [responding] Motion Record of the plaintiff dated August 18, 2015.
[7] The underlying action was commenced by BNS on November 27, 2012. BNS sued Lavoie for payment of $18,177.80 owing on a ScotiaGold Visa account number 4538-031-130-615, together with interest at the rate of 25.99% per annum from November 26, 2012, in accordance with the Revolving Credit Agreement; and for liquidated damages in the sum of $49,093.18 owing on a Scotia Professional Student Loan Credit Agreement for ScotiaLine account number 4538-200-430-820 together with interest at the rate of 4% per annum from November 26, 2012.
[8] BNS obtained a default judgment against Lavoie on May 28, 2013. Lavoie was ordered to pay to BNS the sum of $70,605.88 together with $1,028.83 for costs. That judgment bore interest at the rate of 25.99% per year from its date on the amount of $18,177.80 and at the rate of 4% per year from its date on the amount of $49,093.18.
[9] By letters dated June 6, 2013 and April 29, 2014 BNS wrote to Lavoie advising her of the Default Judgment. In the second letter, BNS advised Lavoie of its intention to direct the Sheriff to seize and sell her property at 35 Murray Street, Unit 214, Ottawa, Ontario.
[10] On October 14, 2014 Lavoie was served with a Notice of Sheriff’s Sale advising her of his instructions to commence sale proceedings of Unit 214, 35 Murray Street.
[11] On November 7, 2014 Lavoie emailed counsel for BNS with an unsigned motion record, with no return date and an unsworn affidavit in support of a motion in writing. These motion materials are attached as an exhibit to the Hamilton affidavit contained in the BNS [responding] Motion Record.
[12] On December 8, 2014 Master Roger (as he then was) requested BNS to provide responding motion materials. That was done. At the request of BNS, the motion was changed from one in writing to one to be heard orally. On January 23, 2015 BNS served Lavoie with a Notice of Return of Motion, returning the motion on May 19, 2015.
[13] On May 15, 2015 Lavoie served materials and asked for an extension of time to June 19, 2015.
[14] On May 19, 2015 the motion was heard by Justice Patrick Smith. Lavoie did not attend. Her motion was dismissed. Costs were awarded to BNS and fixed in the amount of $5,000 inclusive of disbursements and HST.
[15] Between May 28 and July 2 or 3, 2015 Lavoie emailed counsel for BNS advising firstly that her motion had been re-filed to be heard on July 7, 2015 and later advising that it would be heard on August 4, 2015.
[16] Lavoie and Counsel for BNS both appeared before Justice Robert Smith on the motion brought by Lavoie and returnable on August 4, 2015. Justice Robert Smith dismissed Lavoie’s motion with costs of $1,000. It is from this order that Lavoie apparently appeals.
[17] The endorsement of Justice Robert Smith is helpful to understand the basis for his order of August 4, 2015. It reads:
The D has refiled her motion that was heard by P. Smith J on May 19, 2015.
The D was served with the notice of return of her motion as well as a factum and confirmation of motion. The D filed responding material but did not attend.
I agree with the submissions of the Pl that I do not have jurisdiction to rehear the motion heard by P. Smith J and her only remedy would be to appeal his decision.
In any event the D’s position is that she was not required to make any payments on her student loan or on her Visa balance until she was called to the bar. The student loan agreement states that she was required to pay interest each month while she was in school. The D graduated from law school in 2007 and is no longer enrolled in a school program. Default has occurred in Sept. 2012 and default judgment was obtained in 2013.
As a result I am not persuaded that the D has demonstrated sufficient merit to her defence to set aside the default judgment in any event.
The D’s motion is therefore dismissed. I also find there was no evidence of fraud as alleged by D.
The D is ordered to pay costs of $1,000.
[18] The motion before me is framed as if it were an appeal from the August 4, 2015 order of Robert Smith, J.
[19] This court has no jurisdiction to hear an appeal from a final order of a single judge of the Superior Court of Justice.
[20] If it is that Lavoie is really seeking to set aside the May 19, 2015 order of Justice Patrick Smith, this court also has no jurisdiction. That motion was already heard and determined by Justice Robert Smith. As stated in his endorsement of August 4, 2015, Lavoie’s remedy would be to appeal Justice Patrick Smith’s order.
[21] This motion is therefore dismissed.
Costs
[22] BNS is entitled to its costs of the motion and has asked them to be fixed in the amount of $1,000. In Lavoie’s materials she seeks costs of a minimum of $6,000 and a maximum of $25,000.
[23] As set out above, this motion is not properly brought to this court. On August 4, 2015 Lavoie was told that her only remedy was to appeal from the Justice P. Smith’s order. She has not done that. In keeping with the principles set out under Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and taking into account the amount in costs requested by Lavoie, it is appropriate to award BNS the costs it has requested.
[24] Costs of this motion are therefore fixed at $1,000 all-inclusive and payable forthwith by Lavoie.
Madam Justice Liza Sheard
Released: December 2, 2015
CITATION: The Bank of Nova Scotia v. Lavoie, 2015 ONSC 7483
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: THE BANK OF NOVA SCOTIA, Plaintiff (Responding Party)
AND
MIREILLE LAVOIE, Defendant (Moving Party)
BEFORE: Madam Justice Liza Sheard
COUNSEL: Meghan E.W. O’Halloran, Counsel for the Plaintiff/Responding Party
Mireille Lavoie, Self-Represented
ENDORSEMENT
Sheard J.
Released: December 2, 2015