COURT FILE NO.: CV-17-0343-000
DATE: 2020-03-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JO-ANN BODNAR
M. Cupello, for the Plaintiff (Defendant by Counterclaim)
Plaintiff
- and -
THE ESTATE OF PETER BOBAN, DECEASED
N. Gerry, for the Defendant (Plaintiff by Counterclaim)
Defendant
HEARD: September 25, 2019, at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Decision On Summary Judgment Motion
Overview:
[1] This action pertains to a dispute over a private lender mortgage between the Plaintiff (“Bodnar”) and Peter Boban (“Boban”).
[2] On February 15, 1991 Boban loaned Bodnar the sum of $86,933 subject to 14 % interest. The debt was secured by a mortgage registered against a home that was owned by Bodnar. The term of the mortgage was two years, with the last payment becoming due and owing on February 15, 1993.
[3] The mortgage was not paid by February of 1993. Boban passed away in 1997. His sons, Peter Jr. and John Boban are the Estate Trustees and beneficiaries of his estate. They claim, on behalf of the Estate, that the terms of the original mortgage were extended continuously through to the commencement of this action without amendment and remain in full force and effect.
[4] Bodnar denies that the original terms of the mortgage were extended, and instead claims that Boban verbally agreed with her husband that upon the expiry of the original term of the mortgage in February 1993, the mortgage was to be renewed every three years at an interest rate of prime plus 4%. Bodnar claims that she first learned that Boban was claiming 14% interest throughout the period of the loan in 2017 when a payout statement was requested for the mortgage.
[5] This case turns on a determination as to the appropriate interest rate. Is it the prime plus 4% claimed by Bodnar or 14% claimed by Boban?
[6] In July of 2017 Bodnar sold the property secured by the mortgage. An ex parte order was obtained by Bodnar discharging the mortgage and providing for the payment into court of the sum of $210,376.70 from the net sale proceeds.
[7] Bodnar subsequently commenced this action in January of 2018 to have the issues between the parties determined.
[8] Bodnar claims that she stopped making payments on the mortgage in February of 2015 when she realized that she had significantly overpaid based on terms of the verbal agreement between Boban and her husband with respect to interest upon renewal of the mortgage. Bodnar claims that when she ceased payments, she had overpaid the mortgage by the sum of $63,818.81. In the main action she seeks repayment of this amount and to have the net sale proceeds released to her.
[9] Boban takes the position that principal and interest of $210,376.70 remained owing as at July 2017 and has counterclaimed accordingly for this amount along with interest at 14% that continues to accrue.
[10] This is Boban’s motion for summary judgment seeking:
a. Dismissal of the Plaintiff’s claim;
b. Judgment on the counterclaim, which was $274,762 as of September 25, 2019, in addition to post-judgment interest at 14%; and
c. Costs of the action on a solicitor and client basis.
[11] Boban argues that there is no genuine issue for trial with respect to the amount owing under the mortgage, and in any event, Bodnar’s action is statute barred by virtue of expiry of the relevant limitation period.
[12] Bodnar argues that there is a triable issue with respect to the amount, if any, that remains due and owing by virtue of the dispute over the interest rate. She argues that Boban is estopped from relying on the interest rate provided for in the original mortgage by virtue of the verbal agreement made for the prime plus 4% interest rate commencing upon the date of the first renewal of the mortgage. She claims that she acted on this agreement and had she known that Boban was still accruing interest on the loan at a rate of 14%, she would have secured alternate financing. She further argues that subsequent agreements between the parties did not renew or extend the mortgage on the same terms and conditions as the original mortgage. These agreements did not provide for interest.
[13] Bodnar also argues that the balance owing is improperly inflated as Boban did not properly reflect a $28,704.06 payment made by her, but rather added it to the principal balance owing and charged additional interest on this amount.
[14] For the reasons that follow I do not agree that the action is statute barred by virtue of the expiry of the applicable limitation period, but I do concur with the position of Boban that there is no genuine issue for trial. Bodnar’s action shall be dismissed and judgment shall issue in favour of Boban.
BACKGROUND:
[15] Bodnar’s spouse Ian, claims that he verbally agreed with Boban to have the original mortgage term extended, subject to interest at prime plus 4%. Nothing was reduced to writing.
[16] Throughout the original term of the mortgage and subsequent extensions, Bodnar made payments inconsistently.
[17] On July 18, 1996 Boban commenced a court action against Bodnar for breach of the terms of the mortgage. The relief sought included payment in the amount of $158,102.92 plus interest at 14% in accordance with the terms of the original mortgage.
[18] A search of the old court file shows that a Notice of Intent to Defend was filed by Bodnar, but there is no Statement of Defence. It is uncertain as to what Bodnar’s position was with respect to the interest rate in 1996.
[19] On September 23, 1996 the parties signed a consent, resolving the action. The terms of the consent provided that in consideration for Boban extending the time for payment of the amount due under the mortgage:
a. Bodnar was to pay the sum of $31,781,54, which sum included costs payable to Boban upon signing (on September 23, 1996);
b. Bodnar was to make payments on the mortgage in the amount of $1,100 monthly for October, November and December 1996;
c. Bodnar was to pay the sum of $39,336.76 by December 15, 1996;
d. Bodnar was to make further monthly payments commencing January 1, 1997 in the amount of $1,100 until September 3, 1997 when the full balance of the mortgage became due and owing;
e. If Bodnar failed to make the payments as required, Boban would be entitled to immediate judgment for foreclosure; and
f. If Bodnar made all payments as required, the action would be dismissed without costs.
[20] The consent did not reference the interest rate or any change in the rate provided for in the registered mortgage document.
[21] Bodnar did not make all payments contemplated by the consent and Boban did not enforce the terms by obtaining judgment for foreclosure. It is unknown whether that action continues or whether it has been dismissed administratively or otherwise.
[22] Peter Boban died on February 8, 1997. Bodnar claims that an extension agreement was provided to him by Boban or his Estate Trustees, which both Bodnar and her spouse signed on May 26, 1997. It was not signed by Boban or representatives of his estate.
[23] The extension agreement provided that the term of the mortgage would be extended until February 15, 1998 when it became due and payable in full. It stated that all terms and conditions contained in the original mortgage shall remain in full force and effect.
[24] Following the death of Boban, the lawyer for his estate contacted the lawyer for Bodnar and expressed an intention to enforce the terms of the consent. Bodnar’s lawyer responded. Neither letter referenced the interest issue.
[25] The parties entered into a further consent in the original action that is not dated. The terms of that consent provide for the following terms:
a. A lump sum payment to be made by Bodnar in the amount of $39,336.76 no later than September 15, 1997;
b. Payments in the amount of $1,100 were to be made monthly as they came due;
c. The balance owing on the mortgage was to be due and payable on February 15, 1998; and
d. Once these payments were made, the Boban action would be dismissed on a without costs basis. If the payments were not made, then Boban would be entitled to judgment for foreclosure.
[26] By November 1998 the full amount due and owing was still not paid. It also became evident that Bodnar was in arrears of municipal taxes on the secured property in the amount of $28,704.06.
[27] A further agreement was signed on November 4, 1998 as between Bodnar and Boban. There is no evidence that the parties had legal counsel assist them with this agreement. This agreement provided that in consideration for Peter Boban Jr. and John Boban paying the tax arrears by November 17, 1998, the following was agreed to:
a. Bodnar was to make a “bonus payment” of $1,100 on or before December 1, 1998;
b. Bodnar was required to make all monthly payments of $1,100 as they came due;
c. Bodnar was to pay the sum of $28,704.06 to the sons of Boban no later than February 1, 1998 [note: this was prior to the date of the agreement itself and therefore it is queried as to whether it should have read 1999];
d. The sum of $28,704.06 was to be added to the mortgage effective November 17, 1998;
e. Bodnar was to provide proof insurance on the property; and
f. Failure to comply with the terms of the agreement will place this mortgage in default resulting in immediate legal action. [emphasis mine].
[28] Boban claims that Peter Jr. and John did pay the taxes, while Ian Bodnar claims he paid them. John Boban has provided his bank records showing a withdrawal for his one-half share of the taxes, while Peter Jr. has provided a bank journal voucher, he states represents part of his share. The Bobans have also provided a computer printout showing a “tax” payment on November 16, 1998 in the amount of $28,704.15. Ian Bodnar has provided no evidence that he paid the taxes.
[29] Bodnar alleges that further discussions took placed on November 3, 2000 in which Ian Bodnar and Boban’s sons agreed that in consideration for them maintaining an interest rate of prime plus 4% Bodnar would increase the monthly payments to $1,600. A number of payments were made in the $1,600 amount, but Boban denies that any such discussion took place.
Law and Analysis:
The Test for Summary Judgment
[30] The Rules of Civil Procedure, R.R.O. 1990, Reg. 194 allow the defendant to “move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim”. See Rule 20.01(3).
[31] Rule 20.04(2)(a) requires the court to grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[32] The Rules further prescribe that:
20.04(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[33] Karakatsanis J., writing for the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 stated at para. 5:
5…summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.
[34] Regarding the proper procedure on a summary judgment motion, Karakatsanis J. states, at para. 66:
66 … [T]he judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[35] Karakatsanis J. further explains, at paras. 49-50:
49 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.
50 These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[36] On a summary judgment motion, the “moving party bears the onus of proving there is no genuine issue requiring a trial” on the balance of probabilities, and an “evidentiary burden to support that a genuine issue exists only rests with the responding party if the moving party demonstrates a prima facie right to summary judgment”: Chambers v. Cobb, 2015 ONSC 5313, 257 A.C.W.S. (3d) 491, at para. 44.
[37] With this in mind, “a party is not ‘entitled to sit back and rely on the possibility that more favourable facts may develop at trial,” and each party “must ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried”: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 56, affirmed in Hryniak v. Mauldin and Bruno Appliance and Furniture Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126.
Analysis:
[38] In the circumstances of this case I am confident that I can make the necessary findings of fact based on the written materials before me, employing the fact-finding powers as provided for in Rule 20.04(2.1), and apply those facts to the law. There is no need for a trial to determine the issues between the parties.
[39] Bodnar resists the motion for summary judgment on the ground that a trial is necessary to permit the her to adduce viva voce evidence to establish:
(i) the alleged agreement regarding the renewal interest rate; and
(ii) the requirements of promissory estoppel.
Is the Plaintiff’s Claim Defeated by the Statute of Frauds?
[40] Boban takes the position that the Plaintiff’s claim and defence to counterclaim must fail on the basis of s. 4 of the Statute of Frauds, R.S.O. 1990, c. S.19. This section requires transactions touching land to be in writing:
- No action shall be brought to charge any executor or administrator upon any special promise to answer damages out of the executor’s or administrator’s own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of any other person, or to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which the action is brought, or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some person thereunto lawfully authorized by the party.
[41] The Statute of Frauds codifies a long-standing doctrine that originated to prevent fraudulent dealings in land based on perjured evidence: Hill v. Nova Scotia Attorney General, [1997] 1 S.C.R. 69. This court recently reiterated the s. 4 writing requirement in Canadian Western Trust Company v. 1324789 Ontario Inc., 2020 ONSC 810 – a case in which even an e-mail of the parties’ purported agreement was found insufficient to meet the writing requirements of the Statute of Frauds.
[42] In J.E.M.S. Investments Inc. v. Henry Chasteau cob Trust Construction, Trust Quality Construction Inc., Jiwon Kim, and Richard Harris, 2019 ONSC 6437, the applicant sought an order removing a caution registered by the tenants, claiming right of first refusal, and for a writ of possession.
[43] The tenants claimed that they had had an oral agreement with the applicant that the tenant would be allowed to match any offer for the purchase of the property and that the tenant could exercise a right of first refusal at any time, even beyond the period of their original written agreement.
[44] The application judge found that there was no written evidence that the tenant could point to supporting this agreement. Nor did his assessment of the credibility and reliability of the witnesses, evidence such an agreement (paras. 18 & 22). Unlike the instant case, in J.E.M.S. all parties to the alleged agreement were alive, all gave evidence.
[45] The parties agree that there is nothing in writing evidencing the alleged agreement as to interest. Bodnar’s claim may only be saved if she is able to establish part performance.
[46] In the Statement of Claim and on this motion Bodnar alleges that the doctrine of promissory estoppel places her claim outside the ambit of the Statute of Frauds because “the evidentiary material that has been filed in this case clearly establishes the existing relationship between the original parties to the mortgage, together with the fact that the Plaintiff relied upon the representations to its detriment and has indeed acted equitably” (Factum of the Plaintiff/Responding Party, para. 17).
[47] Properly, it is the doctrine of part performance on which Bodnar must rely. Even if it is promissory estoppel, for the reasons set herein with respect to the lack of proof of a representation and detrimental reliance, the Plaintiff’s claim must fail.
The Doctrine of Part Performance
[48] Equity created the doctrine of part performance to forestall abuse of the Statute of Frauds as “an engine of fraud.” The doctrine prevents a “party to an oral contract for the disposition of an interest in land,” from denying “liability for his own performance despite performance of the reciprocal terms by the other party, on the ground that the contract had not been in writing”. See: Steadman v. Steadman, [1976] A.C. 536, cited approvingly in Hill v. Nova Scotia, [1997] 1 S.C.R. 69, where it was said:
Where, therefore, a party to a contract unenforceable under the Statute of Frauds stood by while the other party acted to his detriment in performance of his own contractual obligations, the first party would be precluded by the Court of Chancery from claiming exoneration, on the ground that the contract was unenforceable, from performance of his reciprocal obligations; and the court would, if required, decree specific performance of the contract. Equity would not, as it was put, allow the Statute of Frauds “to be used as an engine of fraud.” This became known as the doctrine of part performance -- the “part” performance being that of the party who had, to the knowledge of the other party, acted to his detriment in carrying out irremediably his own obligations (or some significant part of them) under the otherwise unenforceable contract.
[49] The knowledge of the one party that the counterparty performs the contract to the counterparty’s detriment triggers operation of the doctrine. Otherwise, it would be unconscionable and an abuse of the Statute of Frauds to allow the party who stands by to plead the Statute as a defence to performing his or her part of the agreement. As the court explained in Steadman v. Steadman, [1976] A.C. 536, [1974] 2 All E.R. 977:
A plaintiff alleges an oral agreement. If the defendant does not plead the Statute, the plaintiff may prove the agreement by any relevant evidence, including oral testimony but if the defendant does plead the Statute the plaintiff is barred unless he can establish that the defendant’s plea of the Statute should not be admitted because its maintenance would be unconscionable.
[50] The Court of Appeal for Ontario has reiterated that the “requirements in s. 4 of the Statute of Frauds must give way in the face of part performance because the acts of part performance fulfill the very purpose of the written document – that is, they diminish the opportunity for fraudulent dealings with land based on perjured evidence”. See: Erie Sand and Gravel Limited (Plaintiff/Respondent) v. Seres’ Farms Limited and Tri-B Acres Inc. (Defendants/Appellant), 2009 ONCA 709, at para. 49.
[51] The Supreme Court of Canada set the contours of the doctrine of part performance in Deglman v. Guarantee Trust Co. of Canada and Constantineau, [1954] S.C.R. 725. In Deglman, the plaintiff claimed title to one of his deceased aunt’s real properties based on her alleged oral agreement to devise him the property in exchange for his acts of service to her during her lifetime. He further testified that during his aunt’s lifetime, he did chores on both of her properties, drove her about, and performed other errands. He claimed that she promised to will him property No. 548. in exchange for his service to her from time to time; service which he fulfilled.
[52] In delivering the majority judgment, Cartwright J. clarified the test of part performance, the sequencing of its constitutive elements, and the quality that the acts of performance must have to qualify as acts that defeat s. 4 of the Statute:
[A] plaintiff who relies upon acts of part performance to excuse the non-production of a note or memorandum under the Statute of Frauds, should first prove the acts relied upon; it is only after such acts unequivocally referable in their own nature to some dealing with the land which is alleged to have been the subject of the agreement sued upon have been proved that evidence of the oral agreement becomes admissible for the purpose of explaining those acts. [Emphasis added.]
[53] The Court of Appeal for Ontario clarified that in proving the part performance, the party must demonstrate its detrimental reliance on the alleged oral agreement. Without detrimental reliance, there is no inequity in the other party pleading the Statute of Frauds as a shield to performing the contract. See: Erie Sands, at para. 79.
[54] Based on the foregoing, to preclude the writing requirements of the Statute of Frauds Bodnar must prove her alleged detrimental acts on a balance of probabilities, and that these acts unequivocally refer to the alleged oral agreement with Boban. Only then may she adduce evidence to establish the alleged oral agreement.
[55] In both the litigation and in resisting the summary judgment motion, Bodnar points to her continued payment and alleged overpayment of the mortgage as the detrimental acts of performance flowing from her reliance on Boban’s representations and the alleged verbal agreement. She states that she had never received any form of mortgage statement from Boban, and had she done so and realized that Boban was continuing to charge 14% interest, she would have negotiated a more favourable loan elsewhere and paid out the mortgage.
[56] In light of the caselaw outlined above, the question becomes whether the continued payments on the mortgage are unequivocally referable to the alleged oral agreement?
[57] It is not evident that Bodnar’s continued payment of the mortgage are acts of part performance unequivocally referable to the alleged oral agreement with him. From inception, the terms of the mortgage required monthly installments of $1,100.00. This is the amount Bodnar paid, except in periods of default or when lump sum payments were required. She also continued to pay $1,100.00 following the 1993 maturity date of the mortgage.
[58] Nothing about the payments unequivocally refers to the alleged oral agreement. In the absence of any other evidence, which Bodnar had an obligation to produce on this motion if it were available, they are only referable to the on-going obligation to defray the mortgage per its written terms.
[59] In November of 2000, the payments increased to $1,600.00. The parties differ in their explanation of the increase. Ian Bodnar claims in his affidavit sworn in defence of this motion that following negotiations with Peter Boban and John Boban and Ian Bodnar, it was agreed that in exchange for keeping the interest rate at prime plus 4%, he would pay $1,600.00 per month towards the mortgage owing rather than $1,100.00. The Bodnar’s claim they made the increased mortgage payment to their detriment, in reliance on the verbal agreement with the Estate.
[60] The Estate Trustees deny that these discussions ever took place, and that the increased payment was nothing more than Bodnar trying to finally make some headway towards paying down the principal balance owed on the mortgage.
[61] The Plaintiff’s evidence of the purported November negotiations is contradictory. Despite the position taken in Ian Bodnar’s affidavit sworn for this motion, his evidence given at a prior examination supports Boban’s position. An excerpt of the transcript of the examination of Ian Bodnar pertaining to the alleged negotiations confirms that no such discussion took place and that the increased payments were simply an attempt to try to pay down the mortgage faster.
[62] The inconsistency of the Plaintiff’s evidence renders it unreasonable to conclude that the continued and increased payments resulted from negotiations in November 2000 with the Boban Estate to keep the interest rate at prime plus 4%.
[63] Similarly, other than the bald assertion of Bodnar that had she known sooner that Boban was enforcing the 14% interest rate she would have negotiated a new loan, there is no evidence to substantiate this allegation. There is no evidence that she ever requested a statement of the amount owed. Certainly, she was aware in 1996, three years after she claims that the prime plus 4% interest rate was to be implemented, that Boban was taking the position that interest was 14%.
[64] There is no triable issue as to whether alleged acts of part performance preclude operation of the Statute of Frauds. The evidence is clear and does not support Bodnar’s position. Bodnar’s claims are precluded by the Statute of Frauds.
Alleged Oral Agreement:
[65] If I am incorrect in my analysis as to the operation of the Statute of Frauds, there remains no triable issue as to whether there was an oral agreement that interest was prime plus 4%. There is simply no evidence other than Ian Bodnar’s assertion that there was an oral agreement with Peter Boban Sr. for a renewal of the mortgage every three years at an interest rate of prime plus 4%.
[66] What evidence there is available, suggests that this was not the case. I point to the following:
a. According to Bodnar, the agreement with respect to interest was struck in 1993, or possibly some time before that. However, the 1996 action commenced by Boban with respect to the mortgage specifically claims interest at 14%. This action provides evidence regarding Boban Sr.’s intention with respect to the interest rate applicable to the mortgage.
b. There has been no evidence presented by the Bodnar’s that when they signed the 1996 consent, they disagreed with the amount claimed in the action on the mortgage or the interest rate of 14%. The consent is silent as to interest.
c. The limited 1997 correspondence between counsel did not reference any change to the interest rate or dispute as to terms of the mortgage.
d. The 1997 extension agreement, while not signed by Boban, was signed by each of the Bodnar’s and is the most telling of all documents. It specifically stated that the terms and conditions of the mortgage remained in effect. The mortgage clearly provided for 14% interest, and not prime plus 4%. There was no reference to any amendment of the rate. Had there been an agreement providing for an interest rate different than that which is reflected in the mortgage, one would have thought the Bodnar’s would have sought to amend this document.
e. The 1998 consent also makes no mention of the revised rate and from this it is a reasonable inference that the interest rate provided for in the original mortgage was to continue.
[67] I also note that in the pleadings and the evidence before the court on this motion Bodnar has alleged two alternate, and incompatible versions of the alleged mortgage interest rate agreement with Boban, who is now deceased and unable to testify. In the examination of Ian Bodnar, held September 7, 2018, Mr. Bodnar deposed that the prime plus 4% agreement was negotiated at the time the original mortgage terms were discussed. He claims that the prime lending rate at the time was 10%. When an additional 4% is added, this results in the 14% rate demonstrated on the face of the Charge/Mortgage. He provided no evidence that prime was in fact 10% at that time.
[68] Despite these statements that the negotiations and alleged agreement as to the interest rate occurred at the time of the original mortgage, Mr. Bodnar subsequently deposed that he negotiated and agreed to the renewal terms of the mortgage when the mortgage came up for renewal in 1993.
[69] Mr. Bodnar’s statements are self-serving. With Boban Sr. having passed away, there is no need for a credibility contest as between the only two individuals who were parties to this alleged conversation. Mr. Bodnar’s evidence undermines his own credibility. Combined with what documentary evidence there is in this matter, leaves me confident that there is no genuine issue for trial as to the negotiated interest rate with respect to the mortgage; it was 14%.
[70] My findings in this regard are also strengthened by the requirements of s. 13 of the Evidence Act, R.S.O. 1990, c. E. 23. For actions against the estate of a deceased person, s. 13 requires the evidence of the Plaintiff to be corroborated by some other material evidence. There is none in this case. The Plaintiff herself has not given evidence; it was her husband who conducted all negotiations with respect to the mortgage and therefore this is the only evidence on which the Plaintiff relies. As outlined above, Mr. Bodnar’s evidence on certain material issues is contradictory and inconsistent with what little documentary evidence there is.
[71] Furthermore, it is reasonable to assume that there would be no further evidence adduced at trial other than what is now before the court. Aside from the obligations of the parties to put their best foot forward in terms of the evidence filed on a motion for summary judgment, Ian Bodnar has confirmed that there is no other evidence of the conversations he had with Boban Sr.; no one else was present and there is nothing in writing. All the available evidence is currently before the court.
Is There An Enforceable Mortgage in Effect?
[72] I also find that there is no genuine issue for trial with respect to Bodnar’s position that there is presently no mortgage document to enforce; that the original mortgage expired in 1993 and all that the parties presently have is a serious of consents that do not provide for interest. The argument is that there is no enforceable agreement for 14%.
[73] The Plaintiff has provided no caselaw authority in support of her position. This position also strikes me as inconsistent with and is undermined by, Ian Bodnar’s assertion that the agreement with Boban was that the mortgage was to be renewed every three years. The evidence supports the conclusion that the parties have continued to operate from 1993 to 2015 on this basis.
Amount Remaining Owing:
[74] The Plaintiff’s only other dispute with the amount claimed by the Defendant in the counterclaim is with respect to the municipal taxes that arose in 1998. The Plaintiff’s position is that Boban incorrectly added the amount of the municipal tax arrears to the principal owing under the mortgage, even though it was Bodnar who paid them.
[75] Bodnar has provided no proof of payment of the taxes. Boban has provided proof of payment of a substantial portion of the taxes. I note that Bodnar’s assertions are contrary to the November 1998 consent that was signed by the parties. There is no genuine issue for trial with respect to payment of the municipal tax arrears.
Limitations Act:
[76] The parties did not spend any length of time dealing with this issue at the hearing of the motion. Boban claims that the 2-year limitation period provided for in the Limitations Act, 2002, S.O. 2002, c. 24 makes this action statute barred. Bodnar did not address this argument. I queried whether the 10-year limitation period provided for in s. 43(1) of the Real Property Limitations Act, R.S.O. 1990, c. L. 15 may be more applicable. Regardless, given my findings with respect to summary judgment above, this issue does not need to be decided.
Conclusion:
[77] In light of the foregoing, based on the evidence before me, I am satisfied that there is no genuine issue for trial as to the amount owing under the mortgage. The Defendant’s motion is granted. The Plaintiff’s action shall be dismissed, and the Defendant shall have judgment in the amount of $274,762 in addition to post-judgment interest at 14%. Upon the expiry of the appeal period from this order, the amount of $210,376.70 paid into court pursuant to the Order of the Honourable Madam Justice Warkentin dated July 14, 2017 plus any accrued interest shall be paid to the Defendant, Boban.
[78] If I am incorrect as to the amount of the judgment (the amount calculated as owing to September 25, 2019), counsel may schedule a brief telephone appointment before me to address this issue.
[79] Boban is the successful party and should have costs. If the parties cannot agree as to the quantum of costs, the Defendant shall provide written submissions no longer than five pages (not including offers that are attached, a bill of costs, dockets and case law), double-spaced, to be served and filed by July 1, 2020 (assuming resumption of regular court operations no later than June 1, 2020 – failing which – this date will be extended by me accordingly). The responding party shall serve and file their response no later than August 4, 2020 and that response shall also be limited to five pages, double-spaced. Any reply shall be delivered within 10 days of receiving the response and shall be limited to two pages, double-spaced.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: March 25, 2020
COURT FILE NO.: CV-17-0343-000
DATE: 2020-03-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JO-ANN BODNAR
Plaintiff
- and -
THE ESTATE OF PETER BOBAN, deceased
Defendant
DECISION ON SUMMARY JUDGMENT MOTION
Nieckarz J.
Released: March 25, 2020
/lvp