Court File and Parties

Court File No.: CV-17-578880 Date: 2018-03-08 Superior Court of Justice - Ontario

Re: CHIP Mortgage Corporation 5 Inc., Plaintiff And: Albert Ross Deep, Bruce Deep, and James Edward Deep, Defendants

Before: Pollak J.

Counsel: James M. Butson, for the Plaintiff Dr. Albert Ross Deep, self-represented Defendant

Heard: January 12, 2018

Endorsement

[1] This is a motion for summary judgment brought by the Plaintiff, CHIP Mortgage Corporation 5 Inc., for an order granting possession of a property pursuant to a mortgage charge, registered against 279 Glengrove Avenue West, Toronto. The personal defendant, Mr. Albert Ross Deep, appeared in court. The other two defendants, who are his sons, have not been served with a copy of this motion and no relief is being sought against these two defendants.

[2] The facts surrounding the default, pursuant to the reverse mortgage between the parties, are set out in detail in the factum of the moving party plaintiff.

[3] Very briefly, the mortgage went into default as a result of the fact that the property taxes were not paid. The moving party alleges that this default entitles it to take possession of the property and sell it.

[4] The statement of claim does not ask for judgment for the amounts owing pursuant to the mortgage by any of the defendants.

[5] The statement of defence filed by the defendant does not deny the facts pleaded by the plaintiff with respect to the fact that property taxes were not paid by this defendant, but rather focusses on the submission that the plaintiff has already made unreasonable and major profits as a result of this mortgage agreement. As well, unclear allegations of fraud and collusion are made against the Canada Revenue Agency as well as others which were blamed for the defendant’s inability to pay.

[6] I find that there is no evidence to support the unclear allegations pleaded or to support any plausible defence raised by this defendant.

[7] The considerations in a summary judgment motion that a court is required to make are well set out in the Hryniak v. Mauldin, et al 2014 SCC 7, [2014] S.C.R. 87 case. As well as numerous Court of Appeal decisions which have interpreted that case, all of which set out principles that a court must follow.

[8] When I follow the guidance that has been set out by our Supreme Court of Canada in the Hryniak case I find that as there is no genuine issue requiring a trial. On the basis of the evidence before me I am able to reach a fair and just determination on the merits of the summary judgment motion. I find that I can make the necessary findings of fact, I can apply the law to those facts and I find that the summary judgment motion is a proportionate more expeditious and less expensive means to achieve a just result.

[9] I find that the moving party has met its burden to establish that there is no genuine issue requiring a trial. I also find that there is no evidence to support any plausible defence pleaded. The moving party is therefore entitled to judgment for the legal remedy it has requested. As a result I grant the judgment that I have attached hereto.

Costs

[10] I have considered the costs submissions of the parties. I have taken into account the factors set out in Rule 49 and Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I am required to award costs that are reasonable and fair. See Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[11] The Plaintiff was successful on this motion for summary judgment. At the hearing of the motion, the Plaintiff asks for costs in the amount of $9,000 on a partial indemnity basis. The Defendant claimed $1,000 for his costs should he be successful on the motion. He argued that a reasonable amount for the Plaintiff to be awarded is $1,000 and that the $9,000 requested is unreasonable and excessively high. On reviewing the costs requested at the hearing and the arguments made, I am satisfied, having regard to the factors I have referred to above, that it is reasonable for this court to award partial indemnity costs to be paid to the Plaintiff by the Defendant of $9,000. I therefore award the amount of $9,000 to be paid by the Defendant to the Plaintiff on a partial indemnity basis. This amount includes all applicable taxes and disbursements.

Pollak J.

Date: March 8, 2018