Abrams v. Neumann

CITATION: 2016 ONSC 7504

COURT FILES NO.: 10378/15, 10824/15, 10197/14

DATE: 2016-12-01

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Marion Abrams and Michael Abrams, Plaintiffs AND: Gary Neumann, Niagara Regional Mortgages, Blair Rose, Rose and Rose Barristers and Solicitors, Community Trust Company Ltd., New Haven Mortgage Corporation, Robert Dinning and Marilyn Dinning, Defendants (10378/15)

AND RE: New Haven Mortgage Corporation, Robert Dinning and Marilyn Dinning, Plaintiffs AND: Marion Abrams and Michael Abrams, Defendants (10824/15)

AND RE: Community Trust Company, Plaintiffs AND: Marion Abrams and Michael Abrams, Defendants (10197/14)

BEFORE: Mr Justice Ramsay

COUNSEL: Margaret Hoy for the Abrams Robert Brush for New Haven and the Dinnings Frederick Caplan for Community Trust Company

ENDORSEMENT

[1] In 10378/15 I struck the Abrams’s statement of claim against New Haven and the Dinnings without leave to amend. In 10197/14 I dismissed the Abrams’s motion to amend its statement of defence in the Community Trust Company’s action on a second mortgage. In 10824/15 I gave summary judgment to New Haven and the Dinnings on a first mortgage given by the Abrams.

[2] The successful parties seek costs. In 10824/15 (summary judgment on the first mortgage) the Abrams, the unsuccessful parties, also seek costs on the ground that they made an offer to settle that was better than what New Haven and the Dinnings got from me.

[3] The offer in question does not meet the criteria of Rule 49. Mrs Abrams offered to settle the New Haven mortgage by paying $88,024, representing the principal outstanding as of October 2014. New Haven was awarded $88,072 plus 9.9% annual interest from November 1, 2014 to October 19, 2016. New Haven got more than they could have settled for. In addition the offer did not mention the Abrams’s action against New Haven, which by then had not yet been filed. It cannot seriously have been contemplated that New Haven would agree to forego interest on the mortgage without disposition of the $500,000 in damages claimed by the Abrams. It would only have been reasonable for New Haven to take the Abrams’ decision to sue them as a repudiation of the offer to settle.

[4] Essentially what happened is that the Abrams overextended themselves in 2013 in order to keep a house that they could not afford. When it became apparent to them that they had bitten off more than they could chew, they took the position that they were entitled to have had the use of the money advanced on the two mortgages without paying for it any more. Their approach to the enforcement of the mortgages was to obstruct it through unfounded claims of misconduct by the mortgagees coupled with a frivolous action and abusive motions. Given that and the contractual agreement as to costs of enforcement, the successful parties should have substantial indemnity for costs.

[5] For enforcing the mortgage $50,000 is an amount that would reasonably have been contemplated. It seems disproportionate at first glance, but the Abrams deliberately put the New Haven parties to disproportionate expense as a litigation tactic.

[6] For the motion to strike the claim against the New Haven parties an amount that meets the same test is $15,000.

[7] For Community Trust’s involvement in the motion to amend the Abrams’s statement of defence application of the same criteria leads me to award $7,000.

[8] In summary, I order Marion Abrams and Michael Abrams, jointly and severally, to pay the following costs forthwith:

a. To New Haven, Robert Dinning and Marilyn Dinning a total of $65,000, to be divided among them as they direct; and

b. To Community Trust Company $7,000.

J.A. Ramsay J.

Date: 2016-12-01