Levy v. Levy, 2016 ONSC 1842

CITATION: Levy v. Levy, 2016 ONSC 1842

COURT FILE NO.: CV-09-371181

DATE: 20160316

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Gladys Levy Plaintiff

– and –

Sylvie Levy Defendant

Jayson Thomas, for the Plaintiff

Sylvie Levy, representing herself

HEARD: October 27, 28, 29, 30, 31, November 3, 4, 5, 10, 13, 14, 27, December 29, 2014, January 2, 7, 9, February 6, April 27, June 22, 23, 24, 25, 26 and August 7, 2015

REASONS FOR DECISION

CAROLE J. BROWN, J.

[1] The plaintiff, Gladys Levy, brings this action against her sister, the defendant, Sylvie Levy, for monies allegedly owing in the amount of $21,183.20, as well as for punitive, aggravated and exemplary damages of $25,000.

[2] Sylvie Levy denies that any monies are owing to Gladys Levy. She further counterclaims for damages in the amount of $160,000 and for punitive and exemplary damages in the amount of $150,000.

[3] This matter proceeded over a total of almost 5 weeks or part weeks. There were numerous requests for adjournments on the part of Sylvie Levy as can be seen in the transcripts, including Volume I of the transcripts containing my ruling made on the first day of trial. Numerous other requests were made for adjournments with rulings being made, as set forth, in part, at Appendix 1 to this decision. As well, Sylvie Levy brought a motion to amend the statement of defence and counterclaim on the eighth day of trial. Following the hearing of the motion to amend on November 10, certain amendments were permitted: see my written Endorsement released November 13, 2014. In February of 2015, Sylvie Levy brought a motion for recusal. My written Endorsement was rendered February 17, 2015.

The Positions of the Parties

The Position of the Plaintiff

[4] It is the position of the plaintiff, Gladys Levy (“Gladys” or “the plaintiff”), that in 2003, the defendant, Sylvie Levy (“Sylvie” or “the defendant”) requested financial assistance from Gladys in purchasing a residential property for herself and her two children, as her credit rating prevented her from being approved for a mortgage. At the time, the defendant and her children were temporarily residing with her parents, brother and Gladys in the Greater Toronto Area. The plaintiff agreed to assist with the purchase of the property, located at 2225 Portage Road, Niagara Falls, Ontario, placing title to the property and the mortgage in her name with the intention of thereafter transferring the property to the defendant. There is a dispute as regards whose idea it was to have Gladys take title in her own name. It is the position of the plaintiff that this dispute is immaterial to the issues in this trial.

[5] A Trust Agreement was signed on closing at the insistence of James Rocca, the lawyer retained at Sylvie's request. The plaintiff maintained that she had not previously been advised that she would be required to enter into such an agreement. The transfer was registered on title in favour of the plaintiff as well as a charge against the property in the amount of $162,628 in favour of the Maple Trust Company ("Maple Trust"). It is the position of the plaintiff that she paid closing costs in the amount of $13,813.04, and the cost of insurance in the amount of $872.64, despite the provisions of the Trust Agreement which indicate that Sylvie Levy was to pay for all costs related to the house and to hold the Trustee, Gladys, harmless from all costs relating thereto. It is the position of the plaintiff that throughout the time that her name was on title, Sylvie Levy continued to make late or no payments on the mortgage and that Gladys paid for all outstanding payments and costs, which have never been reimbursed by the defendant and remain owing.

[6] The plaintiff relies on admissions made in the statement of defence at paragraphs 12 and 20. As indicated above, on the eighth day of trial, the defendant brought a motion to amend the statement of defence to, inter alia, withdraw the admissions contained in her statement of defence as regards paragraphs 11 and 12 of the Amended Statement of Claim, which I did not grant. Paragraph 11 states that "At all material times, the Defendant advised that she would reimburse the Plaintiff for, inter alia, the closing costs associated with the purchase of the Property, including but not limited to legal fees and house insurance". Paragraph 12 states that "On or about July 15, 2003, the Plaintiff paid the closing costs in the amount of $13,813.04 plus the amount of $872.64 for insurance.

[7] The plaintiff does not dispute that at a certain point when Gladys was no longer able to cover the expenses arising from the house, due to the defendant’s late or