COURT FILE NO.: CV-17-949-00 DATE: 20190709 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ROYAL BANK OF CANADA Plaintiff, Defendant by Counterclaim – and – ALI SHARAFDIN and SHILA DABIRINEJAD Defendants, Plaintiffs by Counterclaim

Counsel: Jeffrey Kukla, for the Plaintiff, Defendant by Counterclaim Nizam Hashmi, for the Defendant, Plaintiff by Counterclaim, Shila Dabirinejad

HEARD: May 17, 2019

REASONS FOR DECISION

DiTOMASO J.

THE MOTION

[1] The Plaintiff, Royal Bank of Canada (the “Plaintiff”) brings a motion for Summary Judgment against the Defendant and Plaintiff by Counterclaim, Shila Dabirinejad (“Ms. Dabirinejad”) for the following:

(a) Possession of the lands and premises described as follows:

Lot 66, Plan 65M3451, Richmond Hill. S/T RT for a period until the later of 5 yrs from the date of registration hereof or the assumption of the subdivision by the Town of Richmond Hill, Regional Municipality of York. Property Identification Number: 03219-1675 (LT) (the “Property”)

The Property is municipally known as 220 Canyon Hill Avenue, Richmond Hill, ON, L4C 0R4.

(b) Leave to issue a Writ of Possession in respect of the said premises;

(c) An order dismissing the Counterclaim with costs; and,

(d) Interest and costs.

[2] Ms. Dabirinejad defends this Summary Judgment motion on the basis that the Plaintiff knew she was the spouse of the Defendant, Ali Sharafdin (“Mr. Sharafdin”) and that her consent was not obtained by the Plaintiff regarding the Charge registered on title to the Property, which she claims is the matrimonial home.

[3] Further she asserts that the Plaintiff knew that Mr. Sharafdin was married to her by knowledge imputed through the Plaintiff’s employee, Nazanin Taramsari (“Ms. Taramsari”).

[4] Ms. Dabirinejad alleges that the Plaintiff could have and should have determined that Mr. Sharafdin was a spouse if it had exercised due diligence. Further, she contends that the Plaintiff had failed to follow proper procedure in the registration of a mortgage loan and line of credit secured by a mortgage registered on title to the property. Ms. Dabirinejad maintains that Mr. Sharafdin obtained Mortgage Loan # 2 and the RCL (line of credit) by fraudulent means involving Mr. Sharafdin and with the assistance of the Plaintiff and collusion of the Plaintiff’s employee, Ms. Taramsari.

[5] While Ms. Dabirinejad takes no issue with Mortgage Loan # 1, she maintains that the Plaintiff should not have any legal or equitable remedy against the Property and herself regarding Mortgage Loan # 2 and the RCL.

FACTUAL OVERVIEW

[6] The Plaintiff is a creditor of the Defendant, Mr. Sharafdin, who is a debtor. He no longer resides in Canada and likely has fled to Iran.

[7] The Plaintiff alleges that Mr. Sharafdin defaulted in payments on debts owing to the Plaintiff and the entire amounts are now due and owing. By virtue of the default on the Charge, the Plaintiff also alleges it is entitled to possession of the Property.

[8] Ms. Dabirinejad is in possession of the Property.

[9] The Plaintiff submits there is no genuine issue requiring a trial and seeks Summary Judgment against Ms. Dabirinejad for possession, a Writ of Possession, a dismissal of her counterclaim and costs. To avoid duplication, the Factual Overview is dealt with in greater detail in the context of Factual Findings.

THE EVIDENCE

[10] In considering the Factual Overview, I reviewed the evidentiary record consisting of the Plaintiff’s Motion Record, Volumes 1 and 2, containing the following:

(a) Affidavit of Jodi Zimmerman (“Ms. Zimmerman”), a litigation associate employed by the Plaintiff, sworn August 22, 2018, together with Exhibits;

(b) Affidavit of Nazanin Taramsari, financial planner employed by the Plaintiff, sworn October 26, 2018, together with Exhibits; and,

(c) Also filed was the Plaintiff’s Factum, Book of Authorities and Supplementary Book of Authorities.

[11] Ms. Dabirinejad’s material consisted of her Responding Motion Record, containing her Affidavit sworn March 11, 2019, together with Exhibits, her Factum and Book of Authorities.

THE ISSUE

[12] On this motion for Summary Judgment, the fundamental issue to be determined is whether there is a genuine issue requiring a trial.

[13] The Plaintiff submits there is no such genuine issue requiring a trial and therefore Summary Judgment ought to be granted.

[14] Ms. Dabirinejad submits the Summary Judgment motion ought to be dismissed and submits this court should make a variety of orders in her favour. Those orders, inter alia, relate to title of the Property, the Plaintiff’s security and limiting the amount of indebtedness owing to the Plaintiff.

ANALYSIS

Legal Principles

[15] The law regarding Summary Judgment is well-established. The following principles are summarized in the Plaintiff’s Factum as follows:

(a) The Court shall grant judgment when it is satisfied there is no genuine issue requiring trial [1].

(b) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and the judge may exercise any of the following powers for the purpose:

(i) Weighing the evidence;

(ii) Evaluating the credibility of a deponent; and,

(iii) Drawing any reasonable inference from the evidence [2].

[16] Rule 20 of the Rules of Civil Procedure provides a means of avoiding protracted and expensive litigation when there is no requirement for a trial because there is no genuine issue of fact. The summary judgment rule, properly applied, shall be liberally construed to secure the most expeditious and least expensive determination of the civil proceeding on its merits [3].

[17] The change in the Rules from “no genuine issue for trial” to “no genuine issue requiring a trial”, together with the explicit powers of the motions judge to make evidentiary determinations permits a more meaningful review of the paper record and expressly overrules jurisprudence that prevented motions judge from making evidentiary determinations. As a result, consistent as well with the new principle of proportionality in Rule 1.04(1.1), cases or issues need not proceed to trial unless it is genuinely required [4].

[18] The rule for summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims [5].

[19] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result [6].

[20] In determining whether or not there is a genuine issue requiring trial, the responding party’s sworn testimony in the form of affidavit evidence or other material requires that the party set out coherent evidence of specific facts showing that there is a genuine issue for trial. It is not sufficient to say that more and better evidence will or might be available at trial. While there is an onus on the moving party to establish that there is no genuine issue requiring a trial, the case law also resolutely establishes that the respondent must “lead trump or risk losing” [7].

[21] A responding party to a motion for summary judgment is obliged to put his or her best position forward and in that context must do more than simply assert uncorroborated facts [8].

[22] A mortgagee, acting in good faith and without fraud, will not be restrained from an exercise of its power of sale, except upon tender by the mortgagor of the principal money due, interest and costs [9].

Facts and Factual Findings

[23] On the evidentiary record before me, the Affidavits of Ms. Zimmerman and Ms. Taramsari, together with Exhibits, provide clear, cogent and compelling evidence about the Plaintiff’s dealings with Mr. Sharafdin from as far back as 2001 and with Ms. Dabirinejad from 2015. I find the evidence of Ms. Zimmerman and Ms. Taramsari to be credible. Weighing their evidence against the evidence of Ms. Dabirinejad, I find the evidence of Ms. Zimmerman and Ms. Taramsari to be preferred.

[24] In areas of critical importance, I find Ms. Dabirinejad’s evidence to consist of bald allegations, unsupportable inferences and lack of plausibility, as I will explain. By contrast, the Plaintiff’s evidence is consistent throughout, namely, from 2001 to 2015, that Mr. Sharafdin stated to the Plaintiff time and again that he was not a spouse or was single in various transactions concerning the property. The Plaintiff relied on his representations that he was not a spouse.

[25] It is only later, in 2015, that Ms. Dabirinejad asserts she met Ms. Taramsari and told her that she was the spouse of Mr. Sharafdin. Ms. Dabirinejad had never met Ms. Taramsari before then. Ms. Dabirinejad deposes there was a “casual encounter” in the teller’s line at a bank branch of the Plaintiff sometime in 2012 or 2013, when Mr. Sharafdin introduced Ms. Dabirinejad to Ms. Taramsari as his wife. This allegation is not supported by any evidence. To the contrary, Ms. Taramsari alleges she first met Ms. Dabirinejad in 2015 when Ms. Dabirinejad presented herself to Ms. Taramsari at the bank branch unannounced, declaring that she was the spouse of Mr. Sharafdin, demanding information and certain action to be taken by the Plaintiff concerning Mr. Sharafdin. These requests were declined by Ms. Taramsari.

[26] Subsequently, enforcement procedures were commenced by the Plaintiff against Mr. Sharafdin and Ms. Dabirinejad. Mr. Sharafdin fled to Iran. Ms. Dabirinejad remained in possession of the Property.

[27] The Plaintiff brought this Summary Judgment motion for possession, a Writ of Possession, dismissal of the counterclaim, and costs.

[28] Given this context, I accept the evidence of Ms. Zimmerman and Ms. Taramsari presented through their Affidavits and Exhibits, and make the following findings.

Mortgage Loan # 26487942-002 (Mortgage Loan # 1)

[29] The Defendant, Ali Sharafdin, is indebted to the Plaintiff pursuant to a Mortgage Loan (as defined in the RBC Homeline Plan™ Agreement and RBC Homeline Plan™ Allocation Agreement) made between Mr. Sharafdin and the Plaintiff. Interest on Mortgage Loan # 1 is calculated at the rate of 7.000% per annum, calculated half yearly not in advance [10].

[30] The Homeline Plan™ Agreement provides that on default in payment of any portion of the money thereby secured, the principal shall, at the option of the Plaintiff, become payable and the Plaintiff may terminate the Homeline Plan™ Plan Agreement [11].

[31] Default in payment under Mortgage Loan # 1 occurred on March 23, 2017 and still continues. Additionally, Mortgage Loan # 1 matured on September 13, 2017 at which time the balance of the principal, together with any outstanding interest and expenses, became payable and were not paid, nor have they been paid since. No agreements have been entered into between the Plaintiff and Mr. Sharafdin to amend, extend or renew Mortgage Loan # 1 as a result of Mortgage Loan # 1 having matured [12].

[32] By letter dated May 24, 2017, the Plaintiff demanded repayment of the arrears then due and owing towards Mortgage Loan # 1. Payment was not received in accordance with the demand [13].

[33] There is due under Mortgage Loan # 1, as at August 21, 2018, the sum of $48,976.18 [14].

[34] Mr. Sharafdin is liable to pay this sum and subsequent interest at the rate of 7.000% per annum [15].

Mortgage Loan # 97076657-004 (Mortgage Loan # 2)

[35] Mr. Sharafdin is also indebted to the Plaintiff pursuant to a Mortgage Loan (as further defined in the RBC Homeline Plan™ Agreement) made in favour of the Plaintiff. Interest on principal is payable at the rate of 7.000% per annum, calculated and payable monthly [16].

[36] The Homeline Plan™ Agreement provides that on default in payment of any portion of the money thereby secured, the principal shall, at the option of the Plaintiff, become payable and the Plaintiff may terminate the Homeline™ Plan Agreement [17].

[37] Default in payment under Mortgage Loan # 2 occurred on March 15, 2017 and still continues. Mortgage Loan # 2 matured on July 9, 2017 at which time the balance of the principal, together with any outstanding interest and expenses, became payable and were not paid, nor have they been paid since. No agreements have been entered into between the Plaintiff and Mr. Sharafdin to amend, extend or renew Mortgage Loan # 3 as a result of Mortgage Loan # 2 having matured [18].

[38] By letter dated May 15, 2017, the Plaintiff demanded repayment of the arrears then due and owing towards Mortgage Loan # 2. Payment was not received in accordance with the demand [19].

[39] There is due under Mortgage Loan # 2, as at August 21, 2018, the sum of $2,207.06 [20].

[40] Mr. Sharafdin is liable to pay this sum and subsequent interest at the rate of 7.000% per annum [21].

Royal Credit Line # 26487942-001 (the “RCL”)

[41] Mr. Sharafdin is also indebted to the Plaintiff pursuant to a Royal Credit Line (as further defined in the RBC Homeline Plan™ Agreement) made in favour of the Plaintiff. Interest on principal is payable at the rate of 3.700% per annum, being the rate equal to the variable prime rate of the Plaintiff as declared from time to time plus 0.500%, calculated and payable monthly [22].

[42] The Homeline Plan™ Agreement provides that upon demand, the entire balance of the RCL along with any accrued interest thereon, would, at the option of the Plaintiff, become due and payable and the Plaintiff may terminate the Homeline Plan™ Agreement [23].

[43] By letter dated May 9, 2017, the Plaintiff demanded repayment of the RCL. Payment was not received in accordance with the demand [24].

[44] There is due under the RCL, as at August 21, 2018, the sum of $567,577.93 [25].

[45] Mr. Sharafdin is liable to pay this sum and subsequent interest at the rate of 3.700% per annum [26].

The Plaintiff’s Security

[46] Regarding the Plaintiff’s security, I make the following findings, supported by the evidence of Ms. Zimmerman and Ms. Taramsari, by way of their Affidavits and Exhibits.

[47] All of the above indebtedness was secured by a charge (the “Charge”), dated April 25, 2012, and made between Mr. Sharafdin and the Plaintiff. The Charge was registered on April 25, 2012 in the Land Registry Office for the Land Titles Division of York Region (No. 65) as Instrument No. YR1813179 [27].

[48] Mr. Sharafdin is, and at all relevant times has been, the sole registered owner of the Property [28].

[49] The Property was transferred to Mr. Sharafdin, as sole owner, on October 31, 2001 [29].

[50] The Plaintiff provided Mr. Sharafdin with a purchase money first mortgage, the proceeds of which were used by Mr. Sharafdin to purchase the Property. The Ms. Dabirinejad was not a party to the purchase money first mortgage. Mr. Sharafdin made the statement, as set out on the registered mortgage, that he was not a spouse. Mr. Sharafdin represented to the Plaintiff, and the Plaintiff believed, that Mr. Sharafdin was not a spouse [30].

[51] In addition, and at the same time, Mr. Sharafdin gave a second ranking mortgage to JSC&L Enterprises Inc. Again, Mr. Sharafdin made the statement, as set out on the registered mortgage, that he was not a spouse [31].

[52] Mr. Sharafdin provided proof of insurance at the time of his application for the purchase money first mortgage in 2001. The only named insured on the policy was Mr. Sharafdin [32].

[53] Ms. Taramsari, a Financial Planner employed by the Plaintiff, had no involvement in the purchase money first mortgage provided by the Plaintiff to Mr. Sharafdin [33].

• Refinancing by Mr. Sharafdin in April 2005

[54] Later, in or about April of 2005, Mr. Sharafdin applied, and was approved, for new financing from the Plaintiff to be secured by a new first ranking mortgage. That mortgage was registered on April 26, 2005, and again, Mr. Sharafdin made the statement as set out on the registered mortgage, that he was not a spouse. Mr. Sharafdin represented to the Plaintiff, and the Plaintiff believed, that Mr. Sharafdin was not a spouse [34].

[55] The proceeds of the mortgage registered on April 26, 2005 were used, in part, to payout and discharge the prior mortgages made in favour of the Plaintiff and JSC&L Enterprises Inc. The sum of $236,020.61 was paid to payout and discharge the purchase money first mortgage in favour of the Plaintiff, and the sum of $12,304.97 was used to payout and discharge the second mortgage in favour of JSC&L Enterprises Inc. An additional $7,932.48 was used to payout and close a line of credit account [35].

[56] Ms. Taramsari had no involvement in the mortgage registered on April 26, 2005 [36].

• Refinancing by Mr. Sharafdin in April 2007

[57] Then, in or about April of 2007, Mr. Sharafdin again applied, and was approved, for new financing from the Plaintiff. This financing was secured by a new first mortgage registered on April 27, 2007. Mr. Sharafdin again made the statement that he was not a spouse. Mr. Sharafdin represented to the Plaintiff, and the Plaintiff believed, that Mr. Sharafdin was not a spouse [37].

[58] In or around the time that the new first mortgage was registered on April 27, 2007, the credit facilities secured by the mortgage registered on April 26, 2005 were closed and new credit facilities were established. The proceeds of the new credit facilities were used, in part, to payout the outstanding balance in relation to the mortgage registered on April 26, 2005. As at April 11, 2007, there was at least $220,156.35 due and owing under the mortgage registered on April 26, 2005. At least $219,336.97 was advanced under the mortgage registered on April 27, 2007 to payout and discharge the mortgage registered on April 26, 2005 [38].

[59] Ms. Taramsari’s only involvement in the mortgage registered on April 27, 2007 was to assist Mr. Sharafdin, through her role as a Senior Account Manager of the Plaintiff, with a subsequent request to increase the credit line secured by the mortgage, which request Mr. Sharafdin made in or about March of 2009 [39].

• Refinancing by Mr. Sharafdin in April 2012 – The Charge dated and registered April 25, 2012

[60] In or around the time that the Charge was registered, the credit facilities secured by the mortgage registered on April 27, 2007 were closed and Mortgage Loan # 1, Mortgage Loan # 2 and the RCL were established. The proceeds of Mortgage Loan # 1, Mortgage Loan # 2 and the RCL were used, in part, to payout the outstanding balance in relation to the mortgage registered on April 27, 2007. At least $69,894.23 was advanced under the Charge to payout and discharge the mortgage registered on April 27, 2007 [40].

[61] Regarding the Charge, Mr. Sharafdin was the Chargor. He indicated “I am not a spouse” [41].

[62] On April 19, 2012, Mr. Sharafdin also executed a Mortgagor’s Acknowledgment and Direction, where he stated “I, Ali Sharafdin, am not a spouse.” [42]

[63] I find the Plaintiff relied on Mr. Sharafdin’s statements when granting him the 2012 mortgage.

[64] There was nothing registered on title to the Property that might have suggested that Mr. Sharafdin was a spouse at the time of the registration of the Charge. As Mr. Sharafdin had done on all mortgages registered since his purchase of the Property, and at all times relevant to the registration of the Charge, Mr. Sharafdin represented to the Plaintiff, and the Plaintiff believed, that he was not a spouse [43]. I find the Charge is valid and properly registered against the Property.

• Renewal of the Charge in March 2013 and March 2015

[65] The Charge was subsequently renewed by Mr. Sharafdin in March of 2013 and again in March of 2015 [44].

• Ms. Dabirinejad’s Claim that the Property is a Matrimonial Home

[66] Ms. Dabirinejad did not register an interest in the Property until she registered an Application (General) claiming the Property to be a matrimonial home on July 16, 2015, more than 3 years after the registration of the Charge [45].

Did the Plaintiff know or ought to have known Mr. Sharafdin was married to Ms. Dabirinejad?

[67] For the following reasons, the answer to this question is no.

[68] Ms. Dabirinejad asserts the Plaintiff knew or should have known Mr. Sharafdin was married to her for two reasons:

(a) Ms. Dabirinejad claims the Plaintiff knew or ought to have known Mr. Sharafdin was her married spouse through the knowledge and actions of Ms. Taramsari – the “chance meeting”, and,

(b) The Plaintiff ought to have performed further due diligence when it granted the Charge.

• The “Chance” Meeting in 2012 - 2013

[69] Ms. Taramsari’s evidence is that she first met Mr. Sharafdin in 2009, after the 2001, 2005 and 2007 transactions.

[70] I find these transactions are not impeached. There is no evidence the Plaintiff would have known that Mr. Sharafdin was married to Ms. Dabirinejad at that time.

[71] At this first meeting with Mr. Sharafdin in 2009, I find the sole purpose of the meeting was to increase credit available to him under the 2007 mortgage. At this meeting, Mr. Sharafdin signed an RBC Homeline Amending Agreement and Client Agreement, dated March 28, 2009. There is nothing in these documents about spousal status [46].

[72] Beyond the 2009 meeting, Ms. Taramsari had no other dealings with Mr. Sharafdin. I find that nothing arising from the 2009 meeting could have put the Plaintiff on notice of Mr. Sharafdin’s spousal status, ie: that he was married to Ms. Dabirinejad. Mr. Sharafdin had always represented to Ms. Taramsari – and before her, to the Plaintiff – that he was not a spouse.

[73] In 2012, Ms. Taramsari’s only involvement regarding the Charge was the review of some financial information provided by Mr. Sharafdin and to arrange for Mr. Sharafdin to sign certain documents. Ms. Taramsari witnessed the documents signed by him [47].

[74] Mr. Sharafdin signed a Mortgagor’s Acknowledgment and Direction, dated April 19, 2012. As he stated previously, “I, Ali Sharafdin, am not a spouse.” The execution of this document was witnessed by Ms. Taramsari.

[75] After the documents were signed, I find Ms. Taramsari forwarded these documents to another department at the bank for processing according to bank procedure [48].

[76] Ms. Taramsari asked Mr. Sharafdin about his spousal status. As evidenced by the RBC Homeline Plan™ Submission, Mr. Sharafdin’s answer to the Mandatory Spousal Questionnaire to be completed by all borrowers was that he was “single/divorced.”

[77] Ms. Taramsari’s evidence was that she received from Mr. Sharafdin, his T4s and pay stubs, none of which identified him as a spouse. Ms. Taramsari did not review any of Mr. Sharafdin’s T1 forms or Notices of Assessment, which Ms. Dabirinejad submits would have alerted the Plaintiff that Mr. Sharafdin was a spouse.

[78] No such documents were ever received by the Plaintiff. There is no evidence such documents were ever in the Plaintiff’s possession. As well, Ms. Taramsari did not review any insurance documents. I find anything she did review did not identify Mr. Sharafdin as a spouse.

[79] In the Application for the 2012 mortgage, Mr. Sharafdin’s marital status is described as “single” [49].

[80] In April 2012, Ms. Taramsari helped Mr. Sharafdin open a TFSA and she reviewed his RRSP that he had with the Plaintiff.

[81] These were the only interactions that Ms. Taramsari had with Mr. Sharafdin in 2009 and again in April 2012.

[82] In her Affidavit at paragraph 17, Ms. Dabirinejad deposes that she met Ms. Taramsari for the first time in person in the year 2012 or 2013 [50]. While waiting in line for a teller, Mr. Sharafdin introduced Ms. Dabirinejad to Ms. Taramsari. Ms. Dabirinejad and Ms. Taramsari both shared the same Iranian culture and had a friendly conversation for 10 or 15 minutes, according to Ms. Dabirinejad. Ms. Dabirinejad relies on this “chance meeting” or “chance encounter” to impute knowledge to the Plaintiff that Mr. Sharafdin was her spouse.

[83] I reject this evidence. It is made by way of a bald assertion. It is not supported or corroborated by anything. Ms. Dabirinejad is not certain if the introduction happened in 2012 or 2013 or when in 2012 or when in 2013. Her assertion is not reliable and it is not credible.

[84] Her evidence about the “chance encounter” also makes no sense as Mr. Sharafdin had only met with Ms. Taramsari once three years prior, in 2009.

[85] I find it would make more sense that if the introduction did take place, it could have happened after Mr. Sharafdin had seen Ms. Taramsari about the Charge in April, 2012. Ms. Taramsari and Mr. Sharafdin would have met to review and sign documents. The introduction and recognition of Ms. Taramsari would have been more plausible had it occurred after the April, 2012, Charge and not before. Regardless, Ms. Dabirinejad can be no more specific than some time in the year 2012 or 2013. I find her evidence is vague, uncertain and simply not good enough to fix the Plaintiff with knowledge that Mr. Sharafdin was Ms. Dabirinejad’s spouse. I find that Ms. Dabirinejad’s evidence of the introduction in 2012 or 2013 cannot be reasonably stretched to a date before 2012.

• The 2015 Meeting between Ms. Taramsari and Ms. Dabirinejad

[86] I accept the evidence of Ms. Taramsari regarding the 2015 meeting with Ms. Dabirinejad at the bank branch and find as follows.

[87] In or about 2015, Ms. Dabirinejad attended unannounced at the branch of the Plaintiff and was directed to Ms. Taramsari’s office. This was Ms. Taramsari’s first meeting, and first interaction, with Ms. Dabirinejad [51].

[88] Ms. Dabirinejad identified herself as Mr. Sharafdin’s spouse. However, as Mr. Sharafdin had always represented himself to Ms. Taramsari as being single, it remained Ms. Taramsari’s belief that he was unmarried. At no time did Ms. Dabirinejad provide, or offer to provide, any documents substantiating her claim to be the spouse of Mr. Sharafdin [52].

[89] Ms. Dabirinejad had several inquiries about the Charge and the balance owing on Mr. Sharafdin’s credit facilities with the Plaintiff. However, as Ms. Taramsari had never met Ms. Dabirinejad before, and as Ms. Dabirinejad was not a joint account holder on any of Mr. Sharafdin’s accounts, Ms. Taramsari refused to provide Ms. Dabirinejad with any of the requested information. At no time did Ms. Taramsari provide any information to Ms. Dabirinejad about any renewals of the Charge [53].

[90] When Ms. Taramsari refused to provide Ms. Dabirinejad with the information she was seeking, Ms. Dabirinejad became agitated and threatened to bring legal proceedings against Ms. Taramsari. Ms. Dabirinejad indicated to Ms. Taramsari that she was studying law at the time [54].

[91] During the meeting between Ms. Taramsari and Ms. Dabirinejad, Ms. Dabirinejad presented Ms. Taramsari with a document and asked her the meaning of same. To the best of Ms. Taramsari’s recollection, that document may have been a property title search. Ms. Taramsari suggested to Ms. Dabirinejad that she speak to her lawyer about the meaning of the document [55].

[92] At no time did Ms. Taramsari provide Ms. Dabirinejad with any advice about the ownership of property or matrimonial rights. Ms. Taramsari is a financial planner with no expertise, or experience, in these types of issues that would allow her to provide such advice [56].

[93] At no time did Ms. Dabirinejad ask that Ms. Taramsari place a note on Mr. Sharafdin’s file identifying him as a spouse and Ms. Taramsari would not have agreed to do so in any event, absent some evidence being provided to the Plaintiff confirming those facts [57].

[94] I find the 2015 meeting between Ms. Taramsari and Ms. Dabirinejad is not relevant to what the Plaintiff knew in 2012. By 2015, the 2012 Charge had already been registered and renewed. The only evidence that could lead to the conclusion that the Plaintiff knew Mr. Sharafdin was a spouse was Ms. Dabirinejad’s evidence of this “chance encounter” at the bank branch sometime in 2012 or 2013. I have rejected that evidence.

[95] The second argument advanced by Ms. Dabirinejad is that the Plaintiff ought to have performed due diligence by review of other documents from Mr. Sharafdin. If the Plaintiff had done so, it would have learned about their daughter, Dena, and would have concluded that Mr. Sharafdin was married to Ms. Dabirinejad and Dena was their child. I reject this argument. Just because there was a child does not necessarily establish that Mr. Sharafdin was a spouse or the Property was a matrimonial home.

[96] For the following reasons, I find this argument fails. The test is not what the Plaintiff could have or should have done. Rather, the test is whether the Plaintiff had actual or constructive knowledge based on the information the Plaintiff possessed when it granted Mr. Sharafdin the April 25, 2012 Charge.

[97] I find the Plaintiff was entitled to rely on the documents signed by Mr. Sharafdin. It had no obligation to investigate the background by insisting on delivery of further documents by Mr. Sharafdin. The Plaintiff owed no duty to Ms. Dabirinejad – an unknown party. There was no special relationship between her and the Plaintiff. There was no special relationship between Mr. Sharafdin and the Plaintiff. Their relationship was strictly one of debtor and creditor. In Isaacs v. Royal Bank of Canada, 2010 ONSC 3527, Malloy J. held at paragraph 43 that a loan is not rendered unenforceable merely because a bank does not follow its established procedures.

[98] In Isaacs, the court rejected the argument that if the Plaintiff had properly done its due diligence, it would have learned of circumstances that would have exposed fraud.

[99] I find the Plaintiff did follow its own procedures. Ms. Taramsari acted diligently and properly when she met with Mr. Sharafdin in 2009 and, again, in 2012. She prepared the necessary documents and passed them along to another department in the bank for processing. She did everything she was supposed to do. She was not obliged to require Mr. Sharafdin to provide his T1 Forms and Notices of Assessment to substantiate he was a spouse. From 2001 to 2012, Mr. Sharafdin had stated to the Plaintiff he was not a spouse and the Plaintiff was entitled to rely on what he declared, absent any other information to the contrary. I find the Plaintiff had no contrary information and was not obligated to obtain same.

[100] I find there is no evidence that the Plaintiff failed to follow its established internal procedures. Even if it did, a failure to do so in this case gives Ms. Dabirinejad no relief or remedy.

[101] Ms. Dabirinejad submitted that the Plaintiff had actual knowledge of the facts falsely sworn by Mr. Sharafdin. She relied upon Stoimenov v. Stoimenov.

[102] In Stoimenov, the court discussed the meaning of actual notice and constructive notice. The court further considered whether there was notice that the properties in question became matrimonial homes. The court set out a two-stage inquiry. The first step in the inquiry was for the wife to prove that the Plaintiff mortgagees had actual notice that at some time the property had been occupied by the spouses as their matrimonial home. If the onus is satisfied, then on the second stage, the mortgagees must prove they had no notice, either actual or constructive, that the property was a matrimonial home.

[103] I find Ms. Dabirinejad has not met her onus regarding the first stage of the inquiry. The second stage is not engaged and it does not become necessary for the Plaintiff to prove it had no notice, either actual or constructive that the Property was a matrimonial home.

[104] For reasons previously stated, I have rejected Ms. Dabirinejad’s evidence about her “casual encounter” with Ms. Taramsari.

The Family Law Act

[105] Ms. Dabirinejad relies upon ss. 18, 21(1) and (2) and s. 23 of the Family Law Act, R.S.O. 1990, c.F.3, to set aside the Charge and that her right to possession is not subordinate to the Plaintiff’s rights. I reject this argument and find the Act offers no relief to Ms. Dabirinejad.

[106] If Ms. Dabirinejad is a non-titled spouse, she does not have a greater interest in the Property than Mr. Sharafdin [58].

[107] There is no evidence to the contrary that the Plaintiff advanced money to Mr. Sharafdin, that amounts are outstanding, that Mr. Sharafdin was in default and demands were made to pay.

[108] Under the terms of the Charge, there are provisions relating to default [59].

[109] As a result of default, the Plaintiff may take possession [60].

[110] There is no evidence challenging the terms of the Charge, which is a contract between the Plaintiff and Mr. Sharafdin.

[111] I find the Plaintiff has established its entitlement to possession. I find the Plaintiff has established the foundation for its claim for possession and the issuance of a Writ of Possession.

[112] Mr. Sharafdin was the registered owner at the time of the registration of the Charge. He was thus entitled to charge the land.

[113] Ms. Dabirinejad did not register an interest in the Property until after the registration of the Charge. The Charge is therefore not subject to Ms. Dabirinejad’s interest, if any, in the Property.

[114] Even if Mr. Sharafdin did misrepresent his spousal status to the Plaintiff, the Plaintiff was entitled to rely upon his statement that he was not a spouse.

[115] A statement by a person making a disposition of encumbrance of land verifying that he or she is not, or was not, a spouse at the time of the disposition or encumbrance shall, unless the person to whom the disposition or encumbrance is made had notice to the contrary, be deemed to be sufficient proof that the property is not a matrimonial home [61].

The Land Titles Act

[116] The Defendant, Ms. Dabirinejad, seeks a declaration that the Charge is invalid and Order discharging the Charge from title pursuant to the Land Titles Act, R.S.O. 1990, c. L.5.

[117] I find Ms. Dabirinejad is not entitled to the relief sought.

[118] A registered owner may in the prescribed manner charge the land with the payment at an appointed time of any principal sum of money either with or without interest or as security for any other purpose and with or without a power of sale [62].

[119] The charge, when registered, confers upon the chargee a charge upon the interest of the chargor as appearing in the register subject to the encumbrances and qualifications to which the chargor’s interest is subject, but free from any unregistered interest in the land [63].

[120] Moreover, a mortgagee is not rendered liable where the mortgage is given in good faith for valuable consideration by reason of the mortgagor having been registered as owner through fraud or error or having derived titled from or through a person registered as owner through fraud or error, whether the fraud or error consists in a wrong description of the property or otherwise [64].

[121] I find at all relevant times it was represented to the Plaintiff, and the Plaintiff believed, that Mr. Sharafdin was not a spouse. The Charge was given, in good faith for valuable consideration, without any notice of Ms. Dabirinejad’s interest (if any) in the Property.

[122] Therefore, it would thus be inequitable, and unjust, to make an Order rectifying title as requested by Ms. Dabirinejad [65].

[123] As for the allegation that the Plaintiff, Mr. Sharafdin and Ms. Taramsari colluded to register a fraudulent mortgage, I reject this argument. It is without merit, unsupported by any evidence whatsoever.

[124] I reject Ms. Dabirinejad’s submission that the transactions regarding Mortgage Loan # 2 and RCL be set aside as invalid. I reject other relief sought by Ms. Dabirinejad to rectify title to the property. I further reject these requests to limit amounts owing in relation to Mortgage Loan # 2 and RCL to an amount not more than $399,999.50. This relief sought is not properly before this court.

[125] Lastly, Ms. Dabirinejad submits Summary Judgment should only be granted after the court hears the testimony including examination and cross-examination of Ms. Dabirinejad and Ms. Taramsari to assess their credibility and reliability; if the court is not satisfied with the affidavit evidence of Ms. Dabirinejad.

[126] I reject this submission. Ms. Dabirinejad did not put her best foot forward. She had the opportunity to cross-examine Ms. Taramsari and did not do so. This court has the power to weigh evidence, assess credibility and draw any reasonable inferences from the evidence. This submission is without merit and too late, in any event.

Equitable Subrogation

[127] As I have found that the Charge is valid, it becomes unnecessary for me to decide this question.

The Counterclaim

[128] Ms. Dabirinejad counterclaims for a declaration that the “second” RBC mortgage on title to the matrimonial home is not valid. She also seeks a discharge of the “second” RBC mortgage from title to the matrimonial home and a rectification of the register.

[129] Her claim for punitive damages is abandoned. For reasons delivered above, I find the Charge is valid and hereby dismiss the counterclaim.

CONCLUSION

[130] I find there is no genuine issue requiring a trial on the evidentiary record before me. This is a case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[131] For these reasons, the Plaintiff is granted Summary Judgment against the Defendant, Shila Dabirinejad, for the following:

(a) Possession of the Property;

(b) Leave to issue a Writ of Possession in respect of the Property;

(c) Dismissal of the counterclaim with costs.

Costs

[132] The parties have agreed that costs shall be determined by way of written submissions. Within 10 days of the receipt of these reasons, counsel for Plaintiff shall serve and file with my judicial assistant at Barrie, a concise 2 page summary of position in respect of costs, together with a costs outline and draft bill of costs and any relevant authorities. Counsel for the Defendant shall thereafter serve and file the same materials within the following 10 days. Thereafter, if required, counsel for Plaintiff will serve and file any reply materials within the next 5 days.

Mr. Justice G.P. DiTomaso Released: July 9, 2019

[1] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20.04(2) [2] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20.04(2.1) [3] Irving Ungerman Ltd. v. Galanis, [1991] O.J. No. 1478 (C.A.) at paras. 19 and 20; and, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 1.04(1) [4] Cuthbert v. TD Canada Trust, 2010 ONSC 830, [2010] O.J. No. 630 (S.C.J.) at para. 10 [5] Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.) at para. 5 [6] Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.) at para 49 [7] Canadian Imperial Bank of Commerce v. Mitchell, 2010 ONSC 2227, [2010] O.J. No. 1502 (S.C.J.) at para.18 [8] Canadian Imperial Bank of Commerce v. Mitchell, 2010 ONSC 2227, [2010] O.J. No. 1502 (S.C.J.) at para.19 [9] Arnold v. Bronstein, [1971] 1 O.R. 467 (H.C.J.) at p. 2 [10] Affidavit of Jodi Zimmerman, paragraph 2, Exhibit A; [11] Affidavit of Jodi Zimmerman, paragraph 3; [12] Affidavit of Jodi Zimmerman, paragraph 4; [13] Affidavit of Jodi Zimmerman, paragraph 5, Exhibit B; [14] Affidavit of Jodi Zimmerman, paragraph 6, Exhibit C; [15] Affidavit of Jodi Zimmerman, paragraph 7; [16] Affidavit of Jodi Zimmerman, paragraph 8; [17] Affidavit of Jodi Zimmerman, paragraph 9; [18] Affidavit of Jodi Zimmerman, paragraph 10; [19] Affidavit of Jodi Zimmerman, paragraph 11, Exhibit D; [20] Affidavit of Jodi Zimmerman, paragraph 12, Exhibit E; [21] Affidavit of Jodi Zimmerman, paragraph 13; [22] Affidavit of Jodi Zimmerman, paragraph 14; [23] Affidavit of Jodi Zimmerman, paragraph 15; [24] Affidavit of Jodi Zimmerman, paragraph 16, Exhibit F; [25] Affidavit of Jodi Zimmerman, paragraph 17, Exhibit G; [26] Affidavit of Jodi Zimmerman, paragraph 18; [27] Affidavit of Jodi Zimmerman, paragraph 19, Exhibit H; [28] Affidavit of Jodi Zimmerman, paragraph 21, Exhibit I; [29] Affidavit of Jodi Zimmerman, paragraph 22, Exhibits J and K; [30] Affidavit of Jodi Zimmerman, paragraph 23, Exhibit L; [31] Affidavit of Jodi Zimmerman, paragraph 24, Exhibit M; [32] Affidavit of Jodi Zimmerman, paragraph 25, Exhibit N; [33] Affidavit of Jodi Zimmerman, paragraph 26; and Affidavit of Ms. Tar, paragraph 1; [34] Affidavit of Jodi Zimmerman, paragraph 27, Exhibits O and P; [35] Affidavit of Jodi Zimmerman, paragraph 28, Exhibit Q; [36] Affidavit of Jodi Zimmerman, paragraph 29; [37] Affidavit of Jodi Zimmerman, paragraph 30, Exhibits R and S; [38] Affidavit of Jodi Zimmerman, paragraph 31, Exhibit T; [39] Affidavit of Jodi Zimmerman, paragraph 32; and Affidavit of Ms. Nar, paragraph 2; [40] Affidavit of Jodi Zimmerman, paragraph 33, Exhibit U; [41] Motion Record, Vol. 1, Affidavit of Jodi Zimmerman, Exhibit H, page 178; [42] Motion Record, Vol. 2, Affidavit of Jodi Zimmerman, Tab V, page 257. [43] Affidavit of Jodi Zimmerman, paragraph 34, Exhibit H, I, J, K, L, M, O, R and V; [44] Affidavit of Jodi Zimmerman, paragraph 35, Exhibit W; [45] Affidavit of Jodi Zimmerman, paragraph 36, Exhibit X; [46] Motion Record, Volume 2, Affidavit of Ms. Taramsari, Tab 3, Exhibit A; [47] Motion Record, Volume 2, Affidavit of Ms. Taramsari, Tab 3, Exhibit D; [48] Motion Record, Volume 2, Affidavit of Ms. Taramsari, Tab 3, Exhibit E; [49] Volume 2, Affidavit of Ms. Taramsari, Tab 3, Exhibit C, page 328; [50] Respondent’s Motion Record, Tab 1, paragraph 17, page 76; [51] Affidavit of Ms. Taramsari, paragraph 16; [52] Affidavit of Ms. Taramsari, paragraph 17; [53] Affidavit of Ms. Taramsari, paragraph 18; [54] Affidavit of Ms. Taramsari, paragraph 19; [55] Affidavit of Ms. Taramsari, paragraph 20; [56] Affidavit of Ms. Taramsari, paragraph 21; [57] Affidavit of Ms. Taramsari, paragraph 22; [58] Royal Bank of Canada v. Nicholson (1980), 20 O.R. (2d) 141 (Ont. H.C.J.) at paras. 11 and 12; and Re Mauro (1983), 41 O.R. (2d) 157 (Ont. Sup. Ct. [bankruptcy]) at paras. 7 and 8; [59] Motion Record, Volume 1, Affidavit of Jodi Zimmerman, Exhibit H, page 186; [60] Motion Record, Volume 1, Affidavit of Jodi Zimmerman, Exhibit H, page 189; [61] Family Law Act, R.S.O. 1990, c F.3, s. 21(3) [62] Land Titles Act, R.S.O. 1990, c L.5, s. 93(1) [63] Land Titles Act, R.S.O. 1990, c L.5 s. 93(3) [64] Land Titles Act, R.S.O. 1990, c L.5, s. 57(3) [65] Land Titles Act, R.S.O. 1990, c L.5, s. 57(3).