Court File and Parties

Court File No.: CV-19-625454 Date: 2020-08-18 Superior Court of Justice - Ontario

Re: HSBC Bank Canada, Plaintiff And: Elina Bi Yun Tsai and Derek Tat Kuen Lin, Defendants

Before: Schabas J.

Counsel: Kamaree Sweetland, Counsel for the Plaintiff No one appearing for the Defendants

Heard: August 18, 2020, in writing

Endorsement

[1] The plaintiff moves for summary judgment against the defendant Elina Bi Yun Tsai (“Tsai”) arising from the default on a mortgage by the defendants. Tsai effectively concedes liability in her statement of defence, citing her failure to obtain financing from a third-party lender, and she has not responded to this motion.

[2] The motion was scheduled to be heard on August 5, 2020; however, following a chambers appointment with me on August 4, 2020, I determined that the matter could be heard in writing.

[3] The plaintiff’s claim arises out of loan facility by which the plaintiff advanced $3,405,780.00 and $844,220.00 by way of a mortgage loan to the Defendant. A charge was registered in those amounts, totalling $4,250,000.00 to secure the debt, on a property located at 2 Hyde Park Circle in Toronto.

[4] The mortgage is in default. No payments have been made since February 2019. Under the terms of the mortgage, the plaintiff is entitled to possession of the property and to demand repayment of the amount outstanding. The amounts owing at the time of the defaults in February 2019 are $3,090,690.54 and $778,656.22, respectively

[5] The plaintiff commenced this action by way of statement of claim in August 2019. Tsai’s statement of defence, filed by her lawyer in December 2019, admits the default and that the plaintiff is entitled to possession and to repayment of the full amount with interest. Tsai’s position in her statement of defence is that she is suing a third-party lender for failing to provide financing to her, which caused the default and asks, in the statement of defence, that these matters be tried together. However, no steps have been taken to bring the actions together, assuming that is even appropriate, and the plaintiff is entitled to move for judgment now.

[6] Since the commencement of this action, the defendant Derek Tat Kuen Lin has transferred all of his interest in the property to Tsai.

[7] In my view, there is no genuine issue requiring a trial. Liability is admitted in the statement of defence, the evidence led by the plaintiff provides the evidentiary basis for judgment, and Tsai has not responded to this motion.

[8] Accordingly, the motion is granted and the plaintiff shall have judgment against the defendant as follows:

a. possession of the charged Property municipally described as 2 Hyde Park Circle, Toronto, ON, M3B 3M7, to the Plaintiff;

b. Judgment for the Plaintiff, against the Defendant Elina Bi Yun Tsai, in the amount of $3,090,690.54;

c. pre-judgment interest from 14 February 2019 at the rate 3.050% per annum being the rate contained in the Charge, and post-judgment interest at the rate provided for under the Courts of Justice Act, R.S.O. 1990, c.C 43 as amended;

d. Judgment for the Plaintiff, against the Defendant Elina Bi Yun Tsai, in the amount of $778,656.22;

e. pre-judgment interest from 18 February 2019 at the rate 3.300% per annum being the rate contained in the Charge, and post-judgment interest at the rate provided for under the Courts of Justice Act, R.S.O. 1990, c.C 43 as amended.

[9] I fix costs to be awarded to the Plaintiff in the amount of $6,000, inclusive of HST and disbursements.

Schabas J.

Date: 2020-08-18