Court File and Parties

COURT FILE NO.: CV-18-0023

DATE: 2018/06/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FARM CREDIT CANADA, Plaintiff

AND:

1055496 ONTARIO LIMITED, CHRISTOPHER STANLEY BUCHOLTZ, STANLEY BUCHOLTZ and GAIL BUCHOLTZ, Defendants

BEFORE: Mr. Justice Calum MacLeod

APPEARANCES:

Robert T. Danter, counsel for the Plaintiff

Christopher Bucholtz, self-represented party, in person

No one appearing for the other defendants

HEARD: June 25, 2018

REASONS FOR DECISION

[1] This is a motion for judgment for debt secured by a mortgage as against the corporate defendant and for judgment on a guarantee as against the individual defendants. For the reasons that follow, I have granted summary judgment.

Background

[2] The corporate defendant was created in January of 1994 by Stanley Bucholtz and his brother Ferny. The corporation is the registered owner of certain farm property located on Stafford Third Line in Renfrew County.

[3] In September of 2013 the corporation entered into a security agreement with the plaintiff for the purpose of financing a substantial amount of farm machinery. The corporation borrowed $348,175.88 at 4.79% annual interest and obligated itself to pay the sum of $439,174.78 over 10 years.

[4] In November of 2013 the corporation borrowed an additional $150,000.00. This amount was guaranteed by each of the individual defendants.

[5] The debts of the corporation were secured by a security agreement and by a collateral mortgage over two parcels of farmland in the amount of $500,000.00.

[6] In June of 2017 the corporation defaulted on its loans. In addition there are unpaid municipal taxes which is an act of default under the mortgage.

[7] Demand was made for repayment in August of 2017 and on January 16, 2018 the plaintiff brought this action for judgment on the debt and for enforcement of its security.

[8] Neither the corporate defendant nor Stanley nor Gail Bucholtz defended the action. Christopher Bucholtz filed a statement of defence and he attended court in Pembroke to speak to the matter when the motion for summary judgment came before me on June 25, 2018.

The Statement of Defence

[9] The statement of defence filed by Christopher Bucholtz did not dispute that the funds were borrowed or were owed by the defendants in the amounts claimed by the plaintiff. Rather it asserted “the plaintiff received a requirement to perform but failed to do so and is now in dishonour”.

[10] The factum filed by Mr. Bucholtz maintained that he was pursuing “a petition for subrogation”, a “petition for judicial review of an inquisitorial matter” and a “petition for a trustee”. The material annexed to the factum attempted to argue that his birth certificate (which he called a “certificate of title”) somehow made the Province of Ontario responsible for him because he had not waived or abandoned his “birthright”.

[11] Obviously none of these important sounding but legally meaningless phrases are a defence to enforcement of the loan documents. It appears Mr. Bucholtz has been influenced by those who attempt to impede the functioning of the courts by making what Associate Chief Justice Rooke of Alberta characterized as Organized Pseudolegal Commercial Arguments (“OPCA claims”)[^1]

[12] As this court has stated, all litigants are entitled to be treated with respect and decency by the court. OPCA positions on the other hand should neither be tolerated nor treated as if they might have merit. Advancing OPCA arguments in response to a serious legal proceeding is both frivolous and an abuse of process.[^2] In saying this I do not wish to suggest that Mr. Bucholtz was abusive or behaved inappropriately in court. He was polite and articulate but of course none of what he had to say amounted to disputing either the fact of the debt or the amounts that are owing.

[13] Neither the statement of defence nor the factum filed in opposition to the summary judgment motion disclose any basis not to grant judgment to the plaintiff. The loans are in default. The plaintiff is entitled to demand payment. The plaintiff is entitled to realize upon its security.

Judgment

[14] In conclusion, there shall be judgment against the corporation in the amount of $265,603.02 plus interest at the rate of 4.790% per annum from January 16, 2018 until payment.

[15] There shall be judgment against the corporation and against each of the individual defendants jointly and severally for the additional sum of $147,080.87 plus interest at the rate of 4.7% from January 16, 2018 until payment.

[16] In default of payment the plaintiff is entitled to realize upon the security of its mortgage. There shall be judgment against the corporation requiring it to deliver possession of the mortgaged lands to the plaintiff.

Costs

[17] Under the loan instruments, the plaintiff is entitled to its costs of enforcement and may add them to the debt. The plaintiff is entitled to substantial indemnity costs in the amount of $25,000.00 (inclusive of fees, disbursements and HST).

[18] Ordinarily those costs would be payable by the corporation jointly and severally with the guarantors. In this case however, the costs have been exacerbated by the actions of Christopher Bucholtz in filing a frivolous defence and in resisting the motion for summary judgment. But for that, the plaintiff could have obtained default judgment from the Registrar at greatly reduced cost. Instead it was necessary to appear before the court on three separate occasions.

[19] As a consequence, the costs will be payable by the corporation and by Christopher Bucholtz and not by the other guarantors.

Mr. Justice C. MacLeod

Date: June 25, 2018

[^1]: Meads v. Meads, 2012 ABQB 571

[^2]: See Jarvis v. Morlog, 2016 ONSC 4476