Court File and Parties

Court File No.: CV-18-1082 Date: 2018-11-26 Superior Court of Justice - Ontario

Re: Jaswant Kooner, Plaintiff v. Geneva Augustin, Defendant

Before: Dennison J.

Counsel: M.I. Rotman and Y. Jaimangal, for the Plaintiff R. Gorrin, for the Defendant

Endorsement

[1] This is an application for summary judgment. The parties agree that the mortgage has matured, the defendant has not repaid the mortgage, and the defendant owes the principal amount. The dispute between the parties relates to the other amounts payable under the mortgage, particularly whether the defendant made certain interest payments.

Background

[2] The plaintiff and defendant entered into a second mortgage for $84,000 on May 9, 2016. Ms. Marsh, guaranteed the mortgage. The last payment date for the mortgage was May 9, 2017. The mortgage has now expired and the plaintiff is entitled to pursue the sale of the property pursuant to the Notice of Sale under Mortgage issued on March 13, 2018. The plaintiff seeks an order for possession of the mortgaged premises and judgment for the amount owing under the mortgage.

[3] The primary dispute in this case relates to the amounts payable as a result of the defaulted mortgage. The parties disagree with respect to when the mortgage went into default. The plaintiff states that the date of default is November 2016. The defendant claims that the mortgage went into default in November 2017. The parties also disagree about the amount of interest owed and the appropriateness of some of the other damage claims, for example damages of $2,400 from 16 NSF cheques.

Is summary judgment appropriate?

[4] Rule 20.04(2)(a) of the Rules of Civil Procedure states that the court must grant summary judgment “if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” Rule 20.04(2.1) sets out the court’s powers in considering if there is a genuine issue requiring a trial. The court may exercise any of the following powers, “unless it is in the interest of justice for such powers to be exercised only at a trial”. These powers include:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[5] The Supreme Court of Canada considered the summary judgment regime in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. At paragraph 66, Hryniak instructs that the court’s analysis on a summary judgment motion must take place in two stages.

1. First, the motion judge must determine if there is a genuine issue requiring a trial based only the evidence filed on the motion, without regard to the fact finding powers described in Rule 20.04(2.1). No genuine issue requiring a trial will exist if the evidence permits the motions judge to fairly and justly adjudicate the dispute in a timely, affordable and proportional matter. If no genuine issue requiring a trial exists, the motion judge must render summary judgment.
2. If the motion judge concludes at the first stage that a genuine issue for trial exists, the motion judge is then directed to consider whether a trial may be avoided by using the enhanced fact-finding powers set out in Rule 20.04(2.1). The motion judge may exercise those powers, unless doing so would be contrary to the interests of justice.

[6] In a summary judgment motion each party is required to put their best foot forward with respect to the evidence they rely on to support or defend the motion: see Rahimi et al. v. Hatami et al., 2015 ONSC 4266, at paras. 5-6.

[7] Applying the law of summary judgment to the facts in this case, there is no genuine issue requiring a trial as to whether the mortgage is in default and the principle amount of the mortgage is owing. The mortgagee may therefore continue with the sale process and is entitled to an order for possession.

[8] The only issue is with respect to what is payable under the mortgage as a result of the default. For example, it is unclear when the mortgage went into default, and the amount of interest that is owed. It is also unclear whether any of the cheques provided by the plaintiff were deposited and whether any NSF fees were incurred. I am also unable to determine, without hearing evidence, whether or not the guarantor, Ms. Marsh, made eleven cash payments to the plaintiff totalling $10,010.00 as she claims. This amount represents eleven monthly interest payments of $910 that were payable under the mortgage.

Order

[9] As a result, I hereby direct a reference under Rule 64.06 of the Rules of Civil Procedure to determine the proper amount due on the mortgage. I hereby order the following:

1. A reference will take place pursuant to Rule 64.06 of the Rules of Civil Procedure to determine all amounts due under the mortgage.
2. Within 30 days of receipt of this order, the plaintiff shall file a motion record containing documentation in support of the amounts payable under the mortgage, as set out in the statement of claim, including interest and costs.
3. Within 20 days of receipt of the plaintiff’s materials, the respondent shall file a responding record setting out documents that the defendants rely on to dispute the amounts claimed under the mortgage.
4. Within 5 days of receipt of the respondent’s materials, the plaintiff may file a reply record.
5. Viva voce evidence may be called on the reference by either party.
6. Either party may obtain a half day from the trial coordinator’s office for the reference to be heard before me, or before another judge if I am not available that is to be heard on the same day as the reference for file CV 18-1140.
7. A writ of possession shall issue.
8. Costs of this motion are reserved to the judge hearing the reference.

Dennison J. DATE: November 26, 2018