REASONS FOR DECISION

INTRODUCTION

[1] This motion for summary judgment raises several legal issues which revolve around the central factual issue of whether funds were advanced under a mortgage to the Plaintiff.

[2] The Plaintiff is a 73 year old hairdresser who has lived in Canada since emigrating from Iran in 1990 with his spouse, Havva Lavasani. The Plaintiff owns and lives in a condominium in Toronto (“Wynford Drive Property”). He has four children. His daughter, Sepideh Moazzani, is his eldest child. She lives in Toronto and is a real estate agent.

[3] The Defendant, Saeid Roudechi-Ghias, emigrated to Canada from Iran in 1999. He has worked primarily as a personal trainer in Toronto since about 2003. On occasion Saeid has purchased real estate in Toronto and given loans secured by a mortgage using funds provided by his parents who reside in Iran.

[4] Saeid and Sepideh lived together in a common law relationship from about 2007 until early 2011.

[5] A second mortgage was registered against the Wynford Drive Property in the amount of $220,000.00 on March 5, 2009 in favour of Saeid. The mortgage requires that interest at a rate of 15 percent per year be paid and that it was due on March 5, 2012.

[6] The Plaintiff commenced this action on October 17, 2013 for an order to discharge the mortgage on the ground that Saeid never advanced any funds pursuant to the mortgage. On other hand, Saeid alleges that he advanced $20,000.00 to the Plaintiff’s wife and $200,000 to the Plaintiff. By Counterclaim, Saeid claims $220,000.00 under the mortgage and interest.

[7] The Plaintiff claims the Defendants Shek and Rubinoff are responsible to obtain a discharge of the mortgage in the event that the mortgage is enforceable.

[8] The Plaintiff brings this motion for summary judgment for an order to discharge the mortgage. Each of the parties provided affidavit evidence and they were cross-examined.

[9] This motion raises the following issues:

Should the Plaintiff’s claim to discharge the mortgage be granted on the basis that no funds were advanced under the mortgage?
Is the Plaintiff’s claim against Rubinoff barred by a limitation period?
If not, should the Plaintiff’s claim against Rubinoff be dismissed on the basis that:

a. he did not breach a duty of care in providing independent legal advice to the Plaintiff, or

b. even if Rubinoff was negligent, the Plaintiff’s alleged losses were not caused by Rubinoff’s negligence.

[10] For reasons described, I have answered all of the above questions, other than the first question, in the affirmative.

ANALYSIS

[11] This motion for summary judgment is brought pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Its objective is to promote access to justice by providing a streamlined and fair process which results in the just adjudication of a dispute.[^1]

[12] The following principles are applicable on a motion for summary judgment:

• a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.[^2]

• the onus is on the moving party to show that there is no genuine issue requiring a trial;

• the summary judgment process must:

(a) allow the judge to make the necessary findings of fact,

(b) allow the judge to apply the law to the facts, and

• each side must "put its best foot forward" with respect to the existence or non-existence of material issues to be tried;[^4]

• a court may exercise any of the following powers for the purpose of determining whether there is a genuine issue requiring a trial, unless it is in the interest of justice for such powers to be exercised only at a trial.

Weigh the evidence.
Evaluate the credibility of a deponent.
Draw any reasonable inference from the evidence.
Order that oral evidence be presented by one or more parties for the purposes of exercising the above powers.[^5]

• If the court cannot grant judgment on the motion, the court should:

(a) decide those issues that can be decided in accordance with the principles described above;

(b) Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;

(c) In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.[^6]

[13] The following evidence was filed on this motion:

• By the Plaintiff:

o Examination for Discovery of Hadi Moazzani, November 5, 2014;

o Examination for Discovery of Saeid Roudechi-Ghias, November 5, 2014;

o Examination for Discovery of Jeffrey Shek, November 5, 2014;

o Examination for Discovery of Lloyd Rubinoff, November 5, 2014;

o Affidavit of Hadi Moazzani, sworn April 7, 2015;

o Affidavit of Hadi Moazzani, sworn April 23, 2015;

o Affidavit of Sepideh Moazzani, sworn April 23, 2015;

o Affidavit of Davood Roudechi-Ghias, sworn May 3, 2015;

o Affidavit of Hadi Moazzani, sworn May 26, 2015;

o Affidavit of Sayedeh Manijeh Hosseini Khalili, sworn May 27, 2015

o Cross-examination of Saeid Roudechi-Ghias, July 23, 2015;

o Cross-examination of Lloyd Rubinoff, July 23, 2015;

o Certificate of Non-Attendance, Davood Roudechi-Ghias, July 24, 2015.

• By the Defendant Saeid Roudechi-Ghias:

o Affidavit of Saeid Roudechi-Ghias, sworn April 24, 2015;

o Affidavit of Davood Roudechi-Ghias, sworn May 3, 2015;

o Cross-examination of Hadi Moazzani, July 23, 2015;

o Re-examination of Saeid Roudechi-Ghias, July 23, 2015.

• By the Defendant, Lloyd Rubinoff:

o Affidavit of Lloyd Rubinoff, sworn April 6, 2015.

ISSUE #1: DID SAEID ADVANCE FUNDS TO THE PLAINTIFF UNDER THE MORTGAGE?

[14] A mortgage is security for the principal amount actually advanced by the mortgagee to the mortgagor, or to another person at the mortgagor’s direction.[^7]

[15] Saeid submits that the onus rests with the mortgagor who seeks to discharge a mortgage to prove that an alleged advance of funds under the mortgage was not made to the mortgagor.[^8] In my view, this approach leads to an odd result in that it requires the mortgagor who denies that an advance was made under a mortgage to prove a negative. If funds have been advanced under a mortgage, then the mortgagee is in a better position to provide the particulars of such advance (e.g., the date and amount of advance, the parties that received the advance, the instructions associated with the advance). The onus therefore should rest with the mortgagee, as is the case when a mortgagee seeks to enforce a mortgage, to prove that an advance was made under a mortgage.[^9]

[16] The Plaintiff testified that he did not receive any money under the mortgage nor did he instruct Saeid to pay anyone.[^10] In his affidavit, sworn April 7, 2015, the Plaintiff also states:

I expected to receive the funds shortly after signing the mortgage, however, I did not receive the funds. I made repeatedly requests of the Defendant, Saeid, for the money. I made one request the day after and several months thereafter.

The money has never been advanced. I was surprised to find out that a mortgage was registered against the property since no money had been provided to me. Saeid never requested any payments from me.

Ultimately I had to retain a lawyer to have the mortgage removed. On December 6, 2012 I asked that Saeid remove the mortgage.…[^11]

[17] The Plaintiff testified that he was going to use the $220,000 in mortgage funds to pay some debts. He stated that he owed a total of $100,000 on several of his own credit cards and that he owed two cousins a total of about $15,000-16,000.[^12] The Plaintiff states that he paid these credit card debts over time with money that he earned by working as a hairdresser. The Plaintiff refused to provide copies of his and his wife’s credit card statements to show whether the balances were paid off around the time that the mortgage was registered.[^13]

[18] In his Statement of Defence, dated December 13, 2013, Saeid alleges that the funds were advanced to the Plaintiff after Sepideh “…asked him to assist with her parents’ financial needs and provide a loan…” He further alleges that he advanced Saeid the entire $220,000.00 to the Plaintiff and of that amount about $20,000.00 was given to the Plaintiff’s wife to repay credit card debts and meet other financial needs.

Credit Card Payments and Cash - $20,000

[19] In his affidavit, sworn April 24, 2015, Saeid states that he advanced “…$20,000.00 to Havva, some of which was in payment of her credit card debts, and the rest of which was in cash.” No further particulars are provided.

[20] At his examination for discovery on November 5, 2014, Saeid stated that he paid “something close to $20,000.00” towards the outstanding balances on various credit cards held by Havva within one or two months of the registration of the mortgage using funds either from his bank account or using his own credit card.[^14] He alleges that the receipts for these payments went missing after Sepideh moved out from his home.[^15] He also stated that he “…gave them three to five thousand dollars cash, because they were late on their maintenance fee on the property” from funds in his bank account.[^16]

[21] There is no documentary proof that:

• Havva’s credit card bills were paid by Saeid;

• The Plaintiff directed Saeid to pay those bills using the funds secured by the mortgage.

[22] I note that Havva did not file an affidavit. I also note that Saeid did not seek leave under Rule 31.10 of the Rules of Civil Procedure to compel her examination.

Cash - $200,000

[23] In his affidavit, sworn April 24, 2015, Saeid states that:

…One of Havva’s brothers visited my parents’ residence in Tehran, where my parents supplied him with $200,000 in cash (all in Canadian funds) which they had been keeping in a safe in their residence…[^17]

[24] Saeid’s father, Davood Roudechi-Ghias, states:

In early 2010, Saeid told me that the Plaintiff wanted to repay the $200,000 and that the Plaintiff offered to have one of Havva Lavasani’s brothers deliver the $200,000 back to me at my residence. At that point, however, I wanted to forward those funds to Saeid directly, so I asked that the Plaintiff instead deliver the funds to a currency exchange service, so that I could send them to Saeid via wire transfer. A relative or in-law of the Plaintiff (I do not know who) deposited the $200,000 Canadian with Persepolis International Ltd. and I transferred almost all of it to Saeid in two payments of $99,921.81 and $100,000 on February 17 and February 22, 2010.[^18]

[25] Saeid further states that in early 2010 “… a relative or in-law of the Plaintiff (I do not know who) deposited the equivalent of $220,000 Canadian with Persepolis International Ltd., and transferred it to me…” to repay the borrowed funds.[^19] Persepolis is a currency exchange and transfer service. A copy of the wire transfers provide the following particulars:

o $10,309.00 on January 13, 2010 (customer: Fereidoun Lavasani, Tehran, Iran);

o $10,204.00 on January 18,2010 (customer: Fereidoun Lavasani, Tehran, Iran);

o $99,921.81 on February 17, 2010; (customer: Davoud Ghias, Tehran, Iran);

o $100,000.00 on February 22, 2010; (customer: Davoud Ghias, Tehran, Iran).[^20]

[26] The Plaintiff has not explained why Fereidoun Lavasani sent about $20,500.00 to Saeid in January 2010. Saeid states that these funds were provided to repay the monies given to Havva.

[27] Davood Ghias states that he transferred two payments of $99,921.81 and $100,000.00 to Saeid on February 17, 2010 and February 22, 2010 after an unidentified relative of the Plaintiff deposited $200,000 CDN with Persepolis International Inc.[^21]

[28] The lack of detail and written confirmation (for instance, giving $200,000 in cash from a safe in your home on an unspecified date in early 2009 to someone whose name you cannot remember and without any form of written receipt, whether in paper or electronic form, or other confirmation sent to anyone) raises more questions than it provides answers. Further, even though the Plaintiff denies having been advanced $200,000 in March 2009, Saeid has testified that the $200,000 was repaid by the Plaintiff in early 2010.

Bank Draft - $220,979.87

[29] Saeid states that, at the Plaintiff’s direction, he paid $220,979.87 to Seyedeh Manijeh Hosseini Khalili, the wife of Havva’s brother, Fazlollah Seyedali Lavasani (“Fazlollah”) in order to assist Manijeh with the purchase of a condominium at 38 Avenue Road, Toronto (“the Avenue Road Property”). Saeid states that he did not ask for a mortgage on the Avenue Road Property because he had a mortgage on the Wynford Drive Property.[^22]

[30] Saeid delivered a bank draft, dated February 24, 2010, in the amount of $220,979.87 to “Joseph Lemire in trust”. The bank draft notes “38 Avenue Rd, #704, Manijeh Hosseini”. Saeid states that this money was used to purchase the Avenue Road Property on February 25, 2010. The transfer shows that the purchaser, Manijeh, paid $645,000.00 for the Avenue Road Property. The abstract of title shows that a charge was placed on title in favour of Fazlollah on March 30, 2010. The Avenue Road Property was transferred on September 23, 2011 to Fazlollah.

[31] The Plaintiff states:

…the transaction involving my wife’s brother had nothing to do with me and I had no knowledge of that transaction.

My wife’s brother in Iran, who bought the condominium referred to in paragraph 9 of the Affidavit [of Saeid Roudechi-Ghias] is very wealthy and runs his own industrial company.[^23]

[32] Manijeh states she purchased the Avenue Road Property:

…The funds came from Iran. These were funds that my husband had earned through his business in Iran.

None of the money to purchase the Property came from either Saeid Roudechi-Ghias or Davood Roudechi-Ghias.[^24]

The Subsequent Statements of the Parties

[33] Saeid provided copies to text messages that he sent to Sepideh and to her brother, Peter Moazzani.

[34] The text messages were sent by Saeid to Sepideh after their relationship ended in early 2011. The messages include the following statement: “I’ve waited almost 4 years and got nothing…u guys didn’t pay me…I have no choice and need my money”. Sepideh does not dispute that her parents owe money to Saeid in any of the messages.[^25]

[35] The text messages sent by Saeid to Peter Moazzani include the following statement: “I will buy it if u guys are willing to pay me off your parents debt…Make me a fair offer I will buy your condo and remove the second mortgage I have registered on your parents property at the same time.” Again, nothing in Peter Moazzani’s reply denies his parents debt.[^26]

[36] Saeid submits that an adverse inference should be drawn from Sepideh’s and Peter’s failure to swear an affidavit that addresses these text messages.[^27]

[37] When asked why he waited about 3 ½ years to ask Saeid to discharge the mortgage and more than four years to commence this action, the Plaintiff stated:

I didn’t know what to do. I mean, I didn’t do anything, because I didn’t receive any money.

As I said before, this Mr. Saeid and my daughter were friends, living together, so it took some time.[^28]

[38] When asked about his efforts to receive the funds secured by the mortgage, the Plaintiff testified:

After signing the documents, 24 hours later I ask for the money, he didn’t pay. Then two days afterwards I ask, he didn’t pay. Three days afterwards I ask and he didn’t pay.

I asked him several times even after that three days and then…then where was some misunderstanding between him and my daughter.

My daughter always asked him several times, but he didn’t pay unless there was a lien on the…on the….[^29]

Conclusion

[39] A motion for summary judgment as a means of achieving a “fair and just adjudication” in a timely, proportional and efficient manner has its limits. In this case, after having carefully reviewed the affidavits and examination transcripts, I am unable to determine which very peculiar version of events is more credible.

[40] Accordingly, I dismiss the Plaintiff’s motion for summary judgment. I seize myself of this action and direct that a case conference be held pursuant to Rule 50.13 of the Rules of Civil Procedure to determine next steps in this action.

ISSUE #2: WAS THE CLAIM AGAINST RUBINOFF COMMENCED AFTER THE EXPIRY OF THE APPLICABLE LIMITATION PERIOD?

[41] In the event the Court finds that the Saeid advanced funds to the Plaintiff, the Plaintiff seeks an Order that requires Shek and Rubinoff to discharge the mortgage on the grounds that they provided negligent advice on March 5, 2009. For purposes of this determining this issue, I will accept the Plaintiff’s allegation that no funds were advanced to him under the mortgage.

[42] Section 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B sets out when a claim[^30] is discovered.

[43] Subsections 5(1) and (2) of the Act state:

(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[44] The policy reasons for limitation periods have been described by the Supreme Court of Canada in the following manner:

• There comes a time when a potential Defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations;

• Once a limitation period has lapsed, a potential Defendant should no longer be concerned about the preservation of evidence relevant to the claim;

• A Plaintiff is expected to act diligently and not "sleep on their rights".[^31]

[45] The Claim was issued on December 17, 2013. Accordingly, the Plaintiff must show that his claim against Rubinoff was discovered no earlier than December 17, 2011.

Presumption

[46] The Plaintiff states that he met Rubinoff on March 5, 2009 to obtain Independent Legal Advice in respect of the mortgage.

[47] The Plaintiff alleges that Rubinoff failed to: 1) ensure that the Plaintiff understood the consequences of signing the mortgage; 2) ensure that funds were advanced pursuant to the mortgage; 3) advise the Plaintiff not to sign the mortgage; 4) ensure that the Plaintiff in fact received independent legal advice; 5) otherwise ensure that the Plaintiff’s legal interests were properly protected in respect to the mortgage. These alleged acts or omissions occurred on March 5, 2009. The mortgage was registered on March 5, 2009. The “injury, loss or damage” occurred on March 5, 2009 as the funds under the mortgage were allegedly not advanced on March 5, 2009.

[48] Accordingly, I find that the Plaintiff is presumed to have known about the above matters on March 5, 2009.

[49] This presumption will be discharged if the Plaintiff demonstrates that the application of either the subjective test (s. 5(1)(a) of the Act) or the modified objective test (s. 5(1)(b) of the Act) proves that the claim was not discovered on March 5, 2009.

Subjective Test

[50] The Plaintiff states that he did not know he had a claim against Rubinoff until December 2012 when Saeid allegedly refused to remove the mortgage from title to the Wynford Drive Property. The Plaintiff states:

I expected to receive the funds shortly after signing the mortgage, however, I did not receive the funds. I made repeated requests of the Defendant, Saeid, for the money. I made one request the day after and several months thereafter.

Saeid was the boyfriend of my daughter and eldest child, Sepideh. They were in a long-term common law relationship, living together, until January/February 2011. I trusted Saeid and never thought he would try to take advantage of me.

The money has never been advanced. I was surprised to find out that a mortgage was registered against the property since no money had been provided to me. Saeid never requested any payments from me.

Ultimately I had to retain a lawyer to have the mortgage removed. On December 6, 2012 I asked that Saeid remove the mortgage. Attached at Exhibit “B” is a copy of the letter. Even though Saeid never advanced the funds to me, he has refused to remove the mortgage. As a result, I brought this motion to remove the mortgage. [Emphasis added]

[51] The letter referenced above by the Plaintiff as Exhibit “B” was written by the Plaintiff’s counsel and is addressed to the Defendant Shek. It does not demand or otherwise request the removal of the mortgage from title. There is no letter or other document that has been tendered by the Plaintiff which shows that the Plaintiff demanded that Saeid or Rubinoff remove the mortgage from title.

[52] Further, I do not find the Plaintiff’s statement that he was surprised to find that the mortgage had been registered against the Wynford Drive Property to be credible for the following reasons.

[53] First, on March 5, 2009 the Plaintiff signed the following documents:

• Acknowledgement and Direction to Shek which, amongst other things, authorizes and directs Shek to sign, deliver and/or register the Charge electronically on his behalf;

• Certificate of Independent Legal Advice which, amongst other things, acknowledges that Shek had explained the consequences of signing the Acknowledgement and Direction to the Plaintiff.

[54] Second, a statement of account dated March 5, 2009 in the amount of $1,000.00 was issued by Shek to the Plaintiff in relation to the “new 2nd mortgage” and included a charge of $60 for the registration of the mortgage.

[55] Third, on cross-examination the Plaintiff admitted that he instructed Shek to register the mortgage.[^32]

[56] Fourth, the Plaintiff on examination understood that the mortgage was to be registered on March 5, 2009 after he signed the Acknowledgement and Direction and related documents as he states that he asked Saeid for the funds under the mortgage repeatedly immediately after he signed the documents. The Plaintiff stated:

105 Q. Did you ask him to pay the money after the date of registration?

A: Yes, I told him several times and he said he would postpone it a day or two.

106 Q. When did you ask him?

A. After we signed the documents.

Q. Meaning after, close to the day or through the time? When exactly?

A. After signing the documents, 24 hours later I ask for the money, he didn’t pay. Then two days afterwards I ask, he didn’t pay. Three days afterwards I ask and he didn’t pay

Q. So, you didn’t make any more requests after three days after the registration until the date of the mortgage? No other requests for the money?

A. Yes, I asked him several times even after that three days and then … there was some misunderstanding between him and my daughter.

Q. So, what was his response when you asked for the money?

A. We just postponed it for a day or two.

Q. And then after that day or two was up, did you ask again?

A. Yes, I asked several times, many times until there was some misunderstanding between him and my daughter.

Q. What did you daughter tell you about the mortgage and the money?

A. My daughter always asked him several times, but he didn’t pay unless there was a lien on the … … on the …

Q. Okay. What do you mean when your daughter said she couldn’t get it until there was a lien?

A. Saeid put a lien.

Q. Is he saying that Saeid put a lien against the property? Or does he mean the mortgage?

A. On the mortgage.

Q. So, money was owing to you in March 2009, right? You understand that?

A. Yes.

Q. And within 24 hours after the money was due and owing you were asking Mr. Ghias when you were going to get paid, right?

A. Yes, I asked my daughter to ask him. [Emphasis added]

[57] In my view, if the Plaintiff made repeated demands for the funds under the mortgage to be advanced it was because he knew that the mortgage had been registered and he felt entitled to those funds.

[58] In my view, the Plaintiff knew on or about March 5, 2009 that the mortgage had been registered on his property and that funds had not been advanced by Saeid. The Plaintiff’s only explanation for his failure to bring this action sooner was because his daughter was living with Saeid. At his examination for discovery held on November 5, 2014, the Plaintiff was asked the following questions and gave the following answers:

186 Q. Do you have any knowledge, do you know when your daughter and Mr. Ghias broke up?

A. I don’t know the exact date, but it’s about two years. Two, more than two. Above two years.

Q. So, before you started your lawsuit?

A. Yes, after they broke up, then we started the lawsuit and keep on asking to remove the lien he put on the property, but he didn’t.

Q. So, if you knew, if you were making a request for your money within 24 hours and the money wasn’t paid, why did you wait four years to … more than four years to start your lawsuit?

A. As I said before, this Mr. Saeid and my daughter were friends, living together, so it took some time.

Q. I want to make sure I understand. So, are you saying that you didn’t start the lawsuit in as early as March 2009, because at the time your daughter was dating Mr. Ghias?

MR. RADNOFF: They weren’t … he said they had a common-law relationship. …

Q. Right, okay, so are you saying that … is that why you waited to sue, because your daughter was in a common-law relationship with Mr. Ghias?

A. Yes, of course, my daughter knows all about it. [Emphasis added]

[59] In my view, the matters described in s. 5(1)(a) of the Act were known to the Plaintiff on March 5, 2009. Sleeping on one’s rights for personal or other reasons is not reasonable grounds to delay the commencement of a limitation period. In any event, the excuse of his daughter’s relationship with Saeid does not explain why the Plaintiff waited more than two years after his daughter’s relationship with Saeid ended (in early 2011) to commence this action.

Modified Objective Test

[60] Under s. 5(1)(b) of the Act a claim is discovered on the “day on which a reasonable person with the abilities and circumstances of the person with the claim first ought to have known of the matters referred to in clause (a)”.

[61] The date upon which the Plaintiff can be said to be in receipt of sufficient information to cause the limitation period to commence will depend on the circumstances of each particular case.[^33]

[62] The Plaintiff has been a hairdresser in Canada for over two decades. He does not speak or understand English very well. The Plaintiff’s daughter, Sepideh, is fluent in English and assisted her father with understanding the information provided by Rubinoff at their meeting on March 5, 2009. This was not the first time that the Plaintiff had obtained a mortgage. A first mortgage against the Wynford Drive Property was registered in 2008.

[63] In my view, a reasonable person with the Plaintiff’s abilities and in his circumstances would have realized that something was wrong in the days following March 5, 2009 when the funds had been advanced under the mortgage. He could have sought the advice of a lawyer in March 2009 regarding Saeid’s alleged failure to advance funds but there is no evidence that he did so. If it is believed that funds were not advanced under the mortgage, then a reasonable person would have had knowledge of the matters referred to in s. 5(1)(a) of the Act no later than the end of March, 2009.

[64] As noted earlier, the Plaintiff’s only explanation for not pursuing this Claim is that his daughter was living with Saied. The Plaintiff’s excuse for not bringing this action is no excuse in law. Sleeping on one’s rights for the personal reasons given by the Plaintiff does not delay the commencement of the limitation period. Further, the Plaintiff’s excuse does not explain why he waited more than one year after his daughter’s relationship with Saeid ended to commence this action.

ISSUE #3: SHOULD THE CLAIM AGAINST RUBINOFF BE DISMISSED EITHER BECAUSE HE WAS NOT NEGLIGENT OR BECAUSE HE DID NOT CAUSE THE PLAINTIFF’S ALLEGED DAMAGES?

[65] Rubinoff submits that this Claim should be dismissed because there is no genuine issue requiring a trial for the following reasons:

Rubinoff provided Independent Legal Advice in a manner that did not breach the duty of care that he owed to the Plaintiff;
Even if Rubinoff breached his duty of care, the Plaintiff suffered no loss or damage as a result.

Did Rubinoff breach the Duty of Care owed to the Plaintiff?

[66] The Plaintiff submits that:

• Rubinoff was retained to provide ILA to the Plaintiff in respect of the mortgage;

• Rubinoff was told by the Plaintiff’s daughter, Sepideh, that the funds would not be advanced until after the mortgage was registered;

• Section 1.1 of the Rules of Professional Conduct defines independent legal advice to mean “a retainer where…the retained lawyer has explained the legal aspects of the transaction to the client, who appeared to understand the advice given”;

• Rubinoff did not explain the legal consequences of the failure to advance funds;

• Had Rubinoff properly instructed himself of the circumstances of the mortgage, he would have known that no funds were being advanced at the time of the registration of the mortgage and it would have been incumbent on him to advise the Plaintiff not to grant the mortgage unless and until the funds were advanced.

[67] The following legal principles apply when considering the extent of a lawyer’s obligation in providing independent legal advice to a person who mortgages their home:

• “Banks typically require mortgagors to obtain ILA in order to prevent later claims of non est factum, undue influence or unconscionability. The lawyer that is retained to provide the ILA is required to ensure that the mortgagor fully understands the nature and consequences of entering into a mortgage transaction and is doing so voluntarily. Once the mortgage is explained and the risks of non-payment and the possibility of losing the property that is being secured are understood, and the mortgagor signs the ILA Certificate, she is free to do as she wishes. As noted in Orlando v. Toronto Dominion Bank, [2001] O.J. No. 349 (S.C.J.) at para. 34, ‘[p]eople are free to take risks and make bad deals, as long as they are aware of those risks and the possible adverse consequences’.”[^34]

• “The purpose of requiring independent legal advice is to assure that there is an appreciation of the nature and consequence of completing a transaction with potential adverse results. However, where the understanding is complete without independent advice, the objective is still achieved and the purpose of the rule satisfied”.[^35]

• “The caselaw is clear that lawyers providing ILA in the execution of a mortgage loan are generally not required to go beyond the mortgage transaction to assess the financial feasibility of how the mortgage funds will be used. Lawyers giving ILA are required to explain to prospective mortgagors the legal responsibilities and liabilities arising from the execution of the mortgage. They are not required to give business advice.”[^36]

[68] I find that the Plaintiff understood the nature and consequence of registering a mortgage in favour of Saeid on his home. Although the Plaintiff had difficulty with the English language his daughter, Sepideh, provided him with assistance at the meeting with Rubinoff. The Plaintiff was familiar with mortgages as he had given a first mortgage to TD Canada Trust in 2008. The Plaintiff also understood that his home could be sold if his mortgage payments were not made.

[69] In my view, Rubinoff was not required to explain to the Plaintiff the risk associated with having to seek an Order to discharge the mortgage in the event that funds were not advanced under the mortgage. This was a matter for Shek, as the Plaintiff’s lawyer to address, rather than Rubinoff.

If Rubinoff breached the duty of care, did the Plaintiff suffer any loss as a result?

[70] Rubinoff submits that even if he was negligent, the Plaintiff has not demonstrated that his alleged losses were caused by Rubinoff’s negligence.

[71] I agree. If this Court had found that funds were not advanced under the mortgage as the Plaintiff asserts, then the Plaintiff would have been able to seek to have the mortgage discharged.[^37]

CONCLUSIONS

[72] For the above reasons I dismiss the Plaintiff’s motion for summary judgment and I grant Rubinoff’s motion for summary judgment.

[73] Saeid seeks costs of this motion in the amount of $19,500.00. Rubinoff seeks its costs of this motion of $11,000.00. In light of the fact that the Plaintiff sought costs of $13,400.00 for each motion, it is fair and reasonable that the Plaintiff pay costs of $15,000.00 to Saeid and that he pay costs of $11,000.00 to Rubinoff, inclusive of taxes and disbursements, within 30 days of the date of this Order.

[74] I direct that a case conference be held at 8:30 a.m. on Wednesday, February 24, 2016 to determine next steps in this action. My assistant will provide the parties with teleconference details.

Mr. Justice M. D. Faieta

Released: January 26, 2016

[^1]: Trotter v. Trotter, 2014 ONCA 841, (2014), 122 O.R. (3d) 625, para. 49.

[^2]: Rule 20.04(2)(a).

[^3]: Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.

[^4]: Canada (Attorney General) v. Lameman, 2008 SCC 14, 1 S.C.R. 372, para. 11

[^5]: Rule 20.04(2.2).

[^6]: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, [2014] O.J. No. 851, para. 33; aff’d [2014] O.J. No. 5815, 2014 ONCA 878, leave to appeal refused, [2015] S.C.C.A. No. 97.

[^7]: Black v. Hiebert (1907), 1907 CanLII 92 (SCC), 38 S.C.R. 557. Also see s. 93(4) of the Land Titles Act, R.S.O. 1990, c. L.5, which states that “[a] registered charge is, as against the charger…a security upon the land thereby charged to the extent of the money or money’s worth actually advanced or supplied under the charge…”.

[^8]: Benner v. Benner (1928), 62 O.L.R. 360 (C.A.).

[^9]: Singer v. Goldhar (1924), 1924 CanLII 428 (ON CA), 55 O.L.R. 267, at para. 22 (C.A.).

[^10]: Examination for Discovery of Hadi Moazzani, November 5, 2014, Questions 51-52.

[^11]: Affidavit of Hadi Moazzani, sworn April 7, 2015, paragraphs 7, 9 & 10.

[^12]: Examination for Discovery of Hadi Moazzani, November 5, 2014, Questions 89, 123-132.

[^13]: Examination for Discovery of Hadi Moazzani, November 5, 2014, Questions 90, 91, 100-102.

[^14]: Examination for Discovery of Saeid Roudechi-Ghias, November 5, 2014, Questions 241-243.

[^15]: Examination for Discovery of Saeid Roudechi-Ghias, November 5, 2014, Question 272-280.

[^16]: Examination for Discovery of Saeid Roudechi-Ghias, November 5, 2014, Questions 241-243.

[^17]: Paragraph 6.

[^18]: Affidavit of Davood Roudechi-Ghias, sworn May 3, 2015, paragraph 4.

[^19]: Affidavit of Saeid Roudechi-Ghias, sworn April 24, 2015, paragraph 8.

[^20]: Affidavit of Saeid Roudechi-Ghias, sworn April 24, 2015, Exhibit “C”.

[^21]: Affidavit of Davood Ghias, sworn May 3, 2015, paragraphs 9-12.

[^22]: Affidavit of Saeid Roudechi-Ghias, sworn April 24, 2015, paragraph 8.

[^23]: Affidavit of Hadi Moazzani, sworn May 26, 2015, paragraph 9.

[^24]: Affidavit of Sayedeh Manijeh Hosseini Khalili, sworn May 27, 2015.

[^25]: Affidavit of Saeid Roudechi-Ghias, sworn April 24, 2015, Exhibit H.

[^26]: Affidavit of Saeid Roudechi-Ghias, sworn April 24, 2015, Exhibit I.

[^27]: See John Sopinka, Sidney N. Lederman and Alan W. Bryant,, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at para. 6.321.

[^28]: Examination for Discovery of Hadi Moazzani, November 5, 2014, Question 195.

[^29]: Examination for Discovery of Hadi Moazzani, November 5, 2014, Questions 100-102.

[^30]: Under s. 1 of the Act, a “claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.

[^31]: M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, paras. 21-24.

[^32]: Question 20.

[^33]: Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851, 113 O.R. (3d) 401, paras. 38, 70.

[^34]: Webb v. Tomlinson, [2006] O.J. No. 2172 (S.C.J.), para. 24.

[^35]: Orlando v. Toronto Dominion Bank, [2001] O.J. No. 349 (S.C.J.), para. 35.

[^36]: Webb, para. 34.

[^37]: Patel v. Borges, 2015 ONSC 6606

Moazzani v. Roudechi-Ghias, 2016 ONSC 644

Case Summary

REASONS FOR DECISION

INTRODUCTION

ANALYSIS

ISSUE #1: DID SAEID ADVANCE FUNDS TO THE PLAINTIFF UNDER THE MORTGAGE?

Credit Card Payments and Cash - $20,000

Cash - $200,000

Bank Draft - $220,979.87

The Subsequent Statements of the Parties

Conclusion

ISSUE #2: WAS THE CLAIM AGAINST RUBINOFF COMMENCED AFTER THE EXPIRY OF THE APPLICABLE LIMITATION PERIOD?

Presumption

Subjective Test

Modified Objective Test

ISSUE #3: SHOULD THE CLAIM AGAINST RUBINOFF BE DISMISSED EITHER BECAUSE HE WAS NOT NEGLIGENT OR BECAUSE HE DID NOT CAUSE THE PLAINTIFF’S ALLEGED DAMAGES?

Did Rubinoff breach the Duty of Care owed to the Plaintiff?

If Rubinoff breached the duty of care, did the Plaintiff suffer any loss as a result?

CONCLUSIONS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 2

Legislation 3