Court File and Parties
COURT FILE NO.: CV-15-023 DATE: August 5, 2016
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
Self - Represented
HEARD: August 5, 2016
Endorsement
NOTICE OF MOTION (URGENT – IN WRITING)
E.J. Koke J.
[1] The defendants/plaintiffs by counterclaim (“the Hageys”), bring this motion in writing in Parry Sound on an urgent basis requesting an order for:
a) a permanent injunction prohibiting the Toronto-Dominion Bank from taking possession of their mortgaged properties. b) Setting aside a decision handed down by Gordon R.S.J. in Parry Sound on February 16, 2016 and reopening the motion which resulted in that decision.
[2] The grounds for the motion include allegations that:
a) The information advanced by the plaintiff (“The T-D Bank”) before Justice Gordon raised issues of an unresolved Planning Act violation and represents a breach of Section 50 of the Planning Act which cannot be cured or rectified by the court; b) The information placed before the court by the T-D Bank contained fraudulent and misconstrued facts, as set out in the Bank’s factum dated March 30, 2016 which was filed with the Court of Appeal in response to the Hageys’ appeal of Justice Gordon’s order. c) The actions, fabrications, manipulations and deceit by the Bank has resulted in a gross injustice to the Hageys’ rights.
[3] The Hageys also request that the motion be decided by Gordon R.S.J., the Regional Senior Justice of the North East Region, who usually presides in Sudbury, Ontario.
Background
[4] 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.
[5] The defendants (“the Hageys”) were represented by counsel at the motion and the motion was heard by R.D. Gordon R.S.J.
[6] 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.
[7] The Hageys appealed the judgment to the Court of Appeal. Their motion to stay enforcement of the judgment was dismissed on April 14, 2016.
[8] Their appeal of the judgment was subsequently dismissed for delay.
[9] 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.
[10] In response, and now self-represented, the Hageys brought an ex parte motion “on an urgent basis” (the “ex-parte motion”) before this court on May 6, 2016 for an interlocutory injunction 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.
[11] I dismissed the ex-parte motion because I was not persuaded that the Hageys had grounds which supported their application, and because the motion should have been brought on notice.
[12] In response to my decision to dismiss the ex-parte application the Hageys brought a further notice of motion on notice before me on May 20, 2016, 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;
[13] The grounds put forth by the Hageys in support of their May 20, 2016 motion included allegations that:
a) the plaintiff bank had repeatedly misstated and misrepresented the factual evidence before the court when they argued the motion before Justice Gordon; b) the bank’s argument before Justice Gordon that the Hageys’ did not have the ability to be able to retain ownership of their properties was purely speculative; c) the actions of “blackmail”, coercion, undue pressure and advancement of a one-sided contract proposal by the bank needed a comprehensive review prior to imposing any “additional pain, suffering, loss and social degradation” upon the Hageys’ lives.
[14] I dismissed the motion, releasing my written reasons for doing so on May 24, 2016.
Analysis and Decision
1. Request to have motion heard by Gordon J.
[15] The Hageys argue in their materials that this motion should be heard by Gordon R.S.J. because the matter is directly related to the motion over which he presided on January 25, 2016. They cite the decision in Mehedi v. 2057161 Ontario Inc (Job Success), 2014 ONCA 604 as authority for the proposition that it is preferable for an adjudicator with previous knowledge of the matter to consider the merit of subsequent motion which relates to the matter.
[16] I do not agree that this is a motion which should necessarily be heard by Justice Gordon. Even assuming I agree with the Hageys’ interpretation of the Mehedi case, the parties did argue a lengthy motion in this matter before me on May 20, 2016, in which they filed voluminous materials. I am now also familiar with the issues relating to this matter and there is no reason why I should not deal with this motion.
2. Request to set aside the decision of Gordon R.S.J. and granting an injunction
[17] In my view there is no substantial difference between the relief requested by the Hageys in this motion and the relief which they requested (and the grounds in support thereof) which formed the basis for their motion on May 20, 2016.
[18] In essence, what they are seeking is an order setting aside or varying Justice Gordon’s decision and prohibiting the T-D Bank from enforcing their writ of possession. They also desire an opportunity to present additional evidence.
[19] I am denying the Hageys’ motion setting aside or varying Justice Gordon’s order for the same reasons as I denied the motion which I heard on May 20, 2016. These reasons are set out in paragraphs 12 through 19 of my written decision of May 24, 2016 as follows:
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.
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.
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.
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.
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.
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.
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.).
The motion therefore fails on this ground.
[20] With respect to the request by the Hageys for an injunction prohibiting the T-D Bank from enforcing its writ of possession, this was a request which was also previously denied by the Court of Appeal and by this court. I dealt with this issue as follows in paragraphs 20 through 23 of my written reasons following the May 20, 2016 motion:
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.
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.
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.
The motion to stay is therefore dismissed.
[21] In summary, there is no substantial difference between the relief requested in this motion and the relief requested by the Hageys in the motion which they brought before this court on May 20, 2016. Also, in my view, the basis for claiming this relief does not differ in any material way from the basis on which they brought their previous motion. What the Hageys desire is a second opportunity to claim the same relief as they requested on May 20, but before a different judge. For all of the above reasons, their motion is denied.
E.J. Koke J
Released: August 5, 2016
COURT FILE NO.: CV-15-023 DATE: August 5, 2016 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 Endorsement on motion to Vary E.J. Koke J.
Released: August 5, 2016