Court File and Parties

COURT FILE NO.: 18-00075973-0000 DATE: 20190409

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Royal Bank of Canada Plaintiff Responding Party

AND:

Gracia Joubarne Defendant Moving Party

COUNSEL: James Riewald, for the Plaintiff, Responding Party, through his agent, S. Frounchi Gracia Joubarne, Self-represented

HEARD at Ottawa: April 5, 2019

ENDORSEMENT

AITKEN J.:

Nature of Proceedings

[1] The Defendant, Gracia Joubarne, seeks an order under r. 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, striking out the Plaintiff’s Statement of Claim, without leave to amend, on the ground that the pleading shows no reasonable cause of action, it is based on false and forged documents, and it is an abuse of the process of the court. The Defendant also asserts that the Plaintiff has brought its action to coerce and intimidate the Defendant into ratifying forgery and fraud and therefore the action is vexatious as well as being an abuse of process.

[2] As additional relief, the Defendant seeks the following:

• An order barring all claims against, and interest in, the subject property by the Plaintiff and declaring that Gracia Joubarne has no financial obligations to the Royal Bank of Canada;
• An order instructing the Plaintiff to remove all negative comments and actions from all credit rating agency profiles of the Defendant, forthwith and to restore her credit rating;
• An order instructing the Plaintiff to remove all mortgage charges from the title of the Defendant’s property, municipal address 279 Columbus Avenue, Ottawa [“the Defendant’s property” or “her property”];
• An order allowing the Defendant’s Counterclaim to proceed;
• An order that the court files be sealed to protect the Defendant’s personal financial information from identity theft;
• An order that all accounts and memberships in the name of the Defendant be closed and cancelled by the Plaintiff forthwith; and
• An order for costs.

Analysis

[3] In its Statement of Claim, the Plaintiff pled all of the material facts required to support its cause of action based on a mortgage in its favour registered against the Defendant’s property on July 9, 2008. The Plaintiff also pled all material facts required to support its cause of action based on unpaid credit card bills. There is no merit in the Defendant’s assertion that the Plaintiff’s pleading reveals no reasonable cause of action. Furthermore, there is nothing on the face of the pleading that is scandalous, frivolous or vexatious. The Statement of Claim, on its face, is very straight forward. The Plaintiff is seeking to collect debts allegedly owing by the Defendant. It is not an abuse of process for the Plaintiff to take steps to do so.

[4] All of the arguments advanced by the Defendant in her motion materials and in her oral argument to support her request under r. 25.11, and to justify the other orders being sought, relate to the merits of the Plaintiff’s claim; they do not relate to the adequacy or appropriateness of the pleading itself, which is the focus of r. 25.11. For this reason, the Defendant’s motion must fail.

[5] In an effort to move this matter forward, I note the following.

[6] According to the Defendant, the Plaintiff has not yet served its Affidavit of Documents as required under r. 30.03(1). If that is the case, the Plaintiff should serve its Affidavit of Documents forthwith. According to the Defendant, she has served the Plaintiff with her Affidavit of Documents. Once the Plaintiff has served its Affidavit of Documents, the Defendant could consider whether it would be helpful to her to inspect those documents under r. 30.04.

[7] During her oral argument, the Defendant indicated that she had not been given the particulars of the documents that the Plaintiff was relying on. The Defendant could consider whether it would be helpful to make a demand for particulars under r. 25.10.

[8] The Plaintiff’s counsel indicated that the Plaintiff intends to bring a motion for summary judgment forthwith. I wish to add a few comments in this regard. In regard to the merits of the Plaintiff’s claim respecting the mortgage, the Defendant raises a number of issues.

[9] The Defendant claims that she never understood that a mortgage would be registered against her property in the amount of $275,000; her understanding throughout was that the mortgage would only be in the amount of $50,000 – the amount of money the Defendant required to complete the purchase of her property. The total purchase price of the property was $275,000. The Defendant had $225,000 in cash to complete the purchase and only required a mortgage of $50,000. One wonders, therefore, why a mortgage of $275,000 was registered against title to the property. The Defendant produced documents showing that, on a number of occasions, she changed the mortgage amount indicated on documents she saw from $275,000 to $50,000. Despite that, the mortgage was registered with the principal shown as $275,000.

[10] The Defendant claims that after she had repaid the $50,000 she had borrowed to purchase her property, she was pressured by staff working for the Plaintiff to obtain a line of credit in the amount of $275,000 – even though she had no need for such a line of credit at the time. The Defendant claims that, at no time, did she realize that this line of credit would be secured by a mortgage registered against title to her property.

[11] The Defendant denies that a signature on the Plaintiff’s Homeline Plan Agreement is her signature. The Defendant denies that she was in Ottawa on the date beside her alleged signature on the Homeline Plan Agreement. The Defendant denies that she ever saw a Homeline Plan Agreement prior to her receiving a copy of her entire Royal Bank of Canada file.

[12] The evidence is that by March 2011, the Defendant had paid off the $50,000 advanced under the mortgage. The Defendant claims that, at that time, she understood that the Plaintiff would discharge the mortgage. This did not happen.

[13] The Defendant denies that the interest rate being claimed in the Statement of Claim has any relationship to the interest rates quoted to her in regard to the initial mortgage, which she believed to be for $50,000. She pointed out the discrepancies in various documents.

[14] The Defendant claims that she never saw the Royal Bank of Canada Standard Charge Terms prior to signing her mortgage document.

[15] The Defendant claims that two savings accounts were opened at the Royal Bank of Canada without her knowledge or consent.

[16] I point out the existence of these issues because they could mean that a trial is required to determine exactly how it came about that a mortgage of $275,000 was registered against the Defendant’s property allegedly as security for a line of credit that the Defendant claims she never wanted at the time the mortgage was registered. It may be that the Defendant has some possible defences to the Plaintiff’s claim for possession and sale of her property in order to collect under the line of credit. It may be that the merits of those potential defences could only be properly considered after the court has heard the oral evidence of the Defendant and the Plaintiff’s staff with whom the Defendant dealt at the relevant times.

Costs

[17] Although normally a costs order would be made immediately upon the outcome of the motion being determined, I am not prepared to do so in the circumstances of this case and reserve that issue to the judge finally hearing the matter on its merits.

AITKEN J.

Date of Release: April 9, 2019