Court File and Parties
COURT FILE NO.: CV-11-427310 DATE: 20160524 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TANFI LIMITED, Plaintiff AND: JAMES HAROLD FREDERICK SLADE and NANCY JEAN SLADE, Defendants/Plaintiffs by counterclaim AND: TANFI LIMITED and FRANK MANZO, Defendants by counterclaim
BEFORE: F. L. Myers, J.
COUNSEL: S.A. Hussain for Tanfi Limited J. Slade on his own behalf No one appearing for Mr. Manzo
READ: May 24, 2016
Endorsement
The Slades' Proposed Motion against Mr. Manzo
1On May 20, 2016 McEwen J., sitting in Civil Practice Court, referred to me the hearing of a summary judgment motion that the Slades wish to bring against Mr. Manzo. I heard a mini-trial and granted summary judgment for almost $1 million to the plaintiff against the Slades (also dismissing their counterclaim against the plaintiff) on February 3, 2015, reported at 2015 ONSC 778. The plaintiff’s claim was for enforcement of debt secured by two mortgages.
2The Slades now wish to bring a motion for summary judgment on their counterclaim or claim-over against Mr. Manzo who was the mortgage broker on their mortgage transaction with the plaintiff. I know the background and have heard oral evidence of both Mr. Slade and Mr. Manzo on the merits of the mortgage debt issue. The evidence touched upon aspects of the Slades’ claim-over against Mr. Manzo in passing.
3Mr. Slade contacted my office this morning, as suggested by McEwen J., to seek a date for a hearing. Mr. Slade did not copy Mr. Manzo or counsel for the plaintiff, Mr. Hussain, on his email to my Assistant. Mr. Slade advises that Mr. Manzo wishes communication to be by regular mail and has declined to provide an email address.
4Since Mr. Manzo was not copied on Mr. Slade’s communication, I am not inclined to take any step in relation to the proposed motion. I am sitting on Civil matters in the fall commencing September 6, 2016. The motion may be booked before me for less than 2 hours through the Motions Office in the ordinary course. The moving parties should serve and file their motion materials and confirm the motion in accordance with the Rules of Civil Procedure and the applicable Practice Direction.
Tanfi's Request Regarding the Stay of the Writ of Possession
5Mr. Hussain also sent an email to my Assistant this morning as a result of the appearance before McEwen J. in CPC last week. He copied his email to Mr. Slade. Mr. Hussain asks me to convene a Case Conference to discuss an order to vary an order made by Stinson J. dated February 12, 2016. At that time, Mr. Slade appeared before Stinson J., without notice to the plaintiff, and obtained staying a writ of possession issued by the plaintiff pursuant to leave granted by Master Pope last October. The writ of possession was apparently obtained by the plaintiff as part of its enforcement of the summary judgment that I had granted previously. Mr. Hussain asks the court to confirm that the stay ordered by Stinson J. no longer applies in light of the recent dismissal by the Court of Appeal of the Slades’ appeal from my summary judgment order.
6Mr. Slade responded by email arguing that the stay of the writ of possession is not before me. Tanfi has no standing on the Slades’ proposed motion for judgment against Mr. Manzo. Mr. Slade argues that Mr. Hussain is free to bring a motion before any judge and he should not be cluttering up the record and confusing Mr. Slade’s simple request for a date for the hearing of a summary judgment motion.
7After Mr. Slade attended before Stinson J. without notice, the matter came before Lederer J. on notice. By order dated May 19, 2016, Lederer J. continued the stay of the writ of possession issued pursuant to the order of Master Pope until the disposition of the appeal by the Court of Appeal.
8I see no reason to convene a Case Conference or to hear anything further on this issue. The Court of Appeal was abundantly clear in para. 7 of its reasons, reported at 2016 ONCA 326, that “[i]t is time for the respondent to receive the money the appellants owe it.” It is apparent that Justice Stinson’s stay as extended by Justice Lederer has expired in accordance with its terms.
9In addition, and irrespective of the orders made by Master Pope and Stinson J., it is apparent that there is no basis for a stay of the writ of possession that I authorized at para 54 of my summary judgment endorsement dated February 3, 2015. No further order of the court is required for the writ that I authorized to be issued and acted upon.
10Parties do not need motions or orders to execute on judgments which are not stayed or to act on execution documents that may have been, but are no longer stayed. If the terms of the stay order and/or an automatic stay pending appeal (if applicable) are spent, no order is required to re-commence execution.
11Scheduling a further motion in this matter would be a waste of time, an added cost, and a further prejudicial delay. I make no judicial decision in this endorsement. The lifting of any applicable stay follows from the dismissal of the appeal rather than from anything done or not done by the court. Rather, I decline to schedule this issue for hearing as it does not require a hearing for the plaintiff to be entitled to enforce the summary judgment that it holds.
Directions for Future Communications
12Finally, as the purpose of Justice McEwen’s invitation to the parties to communicate with my Assistant has now been fulfilled, I direct that no further communication is to be made by any party to me to or to my Assistant. All further proceedings in this action are to be brought formally with proper service and filing of material with the registrar.
F. L. Myers, J.
Date: May 24, 2016