Court File and Parties
Court File No.: CV-15-023 Date: 2016-05-24 Ontario Superior Court of Justice
Between: THE TORONTO-DOMINION BANK Plaintiff/Defendant by Counterclaim – and – BETTY HAGEY also known as BETTY MAY HAGEY and KEVIN HAGEY also known as KEVIN SCOTT HAGEY Defendants/Plaintiffs by Counterclaim
Counsel: Chad Kopach, for the Plaintiff/Defendant by Counterclaim. Self - Represented
Heard: May 20, 2016
Before: E.J. Koke J.
Background
[1] On January 25, 2016 The Toronto-Dominion Bank (“TD”) brought a motion for summary judgment seeking the following orders: (1) That TD mortgages registered against two adjacent properties owned by the defendants’ be rectified to effect compliance with the Planning Act; (2) That its Notices of Sale be declared sufficient notice to the Defendants in compliance with the Mortgages Act; and (3) That it be granted possession of the mortgaged property with leave to obtain a writ of possession.
[2] The defendants (“the Hageys”) were represented by counsel at the motion and the motion was heard by R.D. Gordon R.S.J.
[3] Justice Gordon released his decision on February 16, 2016 and ordered:
a) that the mortgages be rectified by including the appropriate property descriptions;
b) that the notices of sale as issued by the Plaintiff constitute sufficient notice to the Defendants and are deemed to comply with the Mortgages Act;
c) that judgment for possession issue against both properties and;
d) that leave be granted to the Plaintiff to obtain a writ of possession.
[4] The Hageys appealed the Judgment to the Court of Appeal. Their motion to stay enforcement of the judgment was dismissed on April 14, 2016.
[5] Their appeal of the judgment was subsequently dismissed for delay.
[6] The Sheriff subsequently notified the Hageys that they had to vacate the mortgaged property by May 16, 2016, failing which he would take steps to secure vacant possession.
[7] In response, and now self-represented, the Hageys brought an ex parte application for an interlocutory injunction on an “urgent basis” to prevent the enforcement of the eviction notice. In support of the motion the defendants argued, among other things, that legal counsel for the plaintiff misstated, misrepresented and fabricated facts to the court in his previous filings with the court and in his submissions before Justice Gordon.
[8] The ex parte application was dismissed because the court was not persuaded that the Hageys had grounds which supported their application, and because the motion should have been brought on notice.
The Motion
[9] The Hageys now bring this motion on notice, seeking, among other things:
a) leave to admit “new evidence” and an order to set aside or vary the judgment of Justice Gordon (the “Motion to Vary”); b) a dismissal, or in the alternative a stay of the writ of possession against the property; c) a dismissal of the notice to vacate the subject premises; d) an order that the plaintiff bank provide a detailed and comprehensive accounting of all income, expenses, notices and disbursements as related to its possession of the subject premises; e) an order to review the power of sale notices issued by the plaintiff bank in relation to the properties to determine if they were an abuse of process; f) an order to review the actions of the plaintiff bank, and its legal counsel, during its dealings with the Hageys with regard to a Division 1 proposal advanced by them via Trustee in Bankruptcy John Morgan; g) a stay of all costs awards against the Hageys;
The Grounds for the Motion
[10] The grounds put forth by the Hageys in support of their motion include:
a) the plaintiff bank has repeatedly misstated and misrepresented the factual evidence before the court; b) the bank’s argument that the Hageys do not have the ability to be able to retain ownership of their properties is purely speculative; c) the actions of “blackmail”, coercion, undue pressure and advancement of a one-sided contract proposal by the bank needs a comprehensive review prior to imposing any “additional pain, suffering, loss and social degradation” upon the Hageys lives.
The Issues
[11] The issues are as follows:
a) Should the new evidence be permitted, and the judgment varied or set aside? b) Should there be a stay of the writ of possession or the various costs awards made against the Hageys? c) Should the Court order an accounting of the property sold in the Toronto action?
Analysis
1. Motion to Vary
[12] Rule 59.06(2) of the Rules of Civil Procedure allows for a motion to set aside an order of the Superior Court. The rationale of this rule continues to apply even though an appeal has been determined.
[13] To reopen a matter and introduce new evidence, the moving party must satisfy the two-part test from Scott v. Cook, [1970] 2 O.R. 769 (Ont. H.C.J.). First, the moving party must show that the evidence, if presented at the hearing, would probably have changed the result. Second, the moving party must show that the evidence could not have been obtained before the hearing by the exercise of reasonable diligence. In order to reopen a hearing, the moving party must satisfy both branches of the test.
[14] Upon reviewing the voluminous materials filed by the Hageys in support of this motion, and after hearing lengthy submissions by Ms. Hagey, I have concluded that the Hageys cannot satisfy either of the branches of the Scott v Cook test.
[15] Firstly, I find that none of the evidence that the Hageys seek to introduce would “probably” changed the result of the motion for summary judgment. I find much of the evidence is speculative and not credible, and is not corroborated by the documents.
[16] Secondly, almost all of the evidence which they tender comes from the Hageys themselves, and any which does not come from them was available prior to the hearing of the motion before Justice Gordon on January 25, 2016.
[17] In my view, what the Hageys are attempting to do by bringing this motion is re-litigate the issues which were argued before Justice Gordon. They are attempting to “plug in” as “new evidence” facts and information in an effort to fill the holes in the case they presented to Justice Gordon. This “new evidence” is largely hearsay, uncorroborated and was available previously.
[18] It is has been said before that courts should “discourage unwarranted attempts to bring forward new evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant after discovering the effect of a judgment to re-establish a broken-down case with the aid of further proof. If the power is not exercised sparingly and with the greatest care fraud and abuse of the Court's process would likely result. See 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] S.C.J. No. 61 (S.C.C.) citing Clayton v. British American Securities Ltd., [1934] 3 W.W.R. 257 (B.C.C.A.).
[19] The motion therefore fails on this ground.
2. Request for a Stay
[20] The Hageys request as alternative relief a stay of the Writ of Possession. At paragraph 7, they request a stay of the various costs orders made against them.
[21] A stay is only typically sought pending a review (usually an appeal) of a judgment or order. However, in the within action, the Hageys’ Motion to Vary has been dealt with above and refused and is therefore unnecessary.
[22] In any event, the issue of the stay has already been determined. In the within action, the Hageys brought a stay motion on April 5, 2016 pending their appeal, which was dismissed on April 14, 2016. The Hageys then brought an ex parte injunction motion on May 6, 2016 seeking, in effect, a stay order preventing TD from enforcing the Judgment until this motion is determined. The injunction was dismissed.
[23] The motion to stay is therefore dismissed.
3. Motion for an Accounting in the Toronto Action
[24] The request for an accounting of the sale in the Toronto Action is not properly brought in the within action. Any relief relating to that action should be brought as a motion in that action.
Decision
[25] For the above reasons I am dismissing the above motion. The order of Justice Gordon dated February 16, 2016 remains in force.
[26] If the parties are unable to agree on costs they may make written submissions to me, not to exceed four pages (12 point font) plus attachments each, within 45 days of the release of this decision.