COURT FILE NO.: CV-19-2054-000T

DATE: 2020 01 27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROYAL BANK OF CANADA, Plaintiff

AND:

DEOLINDA DA SILVA, JOSE MANUEL DA SILVA also known as JOE DA SILVA and SUSAN DA SILVA also known as SUSAN DA SILVA, Defendants

BEFORE: TRIMBLE J.

COUNSEL: Sarah Woulters for the Respondents/Plaintiff RBC

Peter Carey for the Applicant/Defendants

Asad Ali Moten for Susan DaSilva, Respondent

No on appearing for José Da Silva

HEARD: January 20, 2020

ENDORSEMENT

THE MOTION

[1] Deolinda DaSilva (Mrs. DaSilva) seeks an order that this mortgage enforcement action commenced in Milton by Royal Bank of Canada (RBC) be transferred to Brampton and be tried at the same time or immediately before or after the Brampton family application between her son José DaSilva and her daughter-in-law, Susan, Brampton Court file number FS-17-89626, in which Mrs. DaSilva and RBC are added Respondents.

BACKGROUND

[2] The Royal Bank is the mortgagee of 3249 Escada Dr., Mississauga. Mrs. DaSilva is the registered owner of 50% of the property. José and Susan, between them, are the registered owners of the other 50%. José and Susan are joint tenants with respect to their 50%. Between José and Susan on the one hand, and Mrs. DaSilva on the other, they are tenants-in-common. All of the DaSilvas live in the property. For José and Susan, the property is the matrimonial home.

THE ACTIONS

The Brampton Family Application

[3] Since 2017, José and Susan have been involved in litigation to end their marriage. The main issue in the Application is equalization of net family property.

[4] The ownership of the home is an issue. Susan seeks an order for partition and sale of the property. José seeks exclusive possession of the matrimonial home and says that it should be sold. In her reply, Susan alleges that José had depleted substantial funds from the line of credit registered against the property.

[5] The family matter has proceeded slowly. The first case conference occurred on January 11, 2018. On June 5, 2018, Fitzpatrick J. allowed questioning, following which the parties were ordered to arrange a settlement conference. On November 2, 2018, after a motion on the question, Fowler-Byrne J. ordered further questioning and disclosure, and that the parties arrange a settlement conference after questioning was completed.

[6] The settlement conference was held on April 4, 2019, by which time, José had added Mrs. DaSilva to the Application as an added Respondent. At the settlement conference, Emery J. gave Mrs. DaSilva leave to file her answer without a financial statement, ordered that José and Susan file their replies to Mrs. DaSilva by April 15, 2019, and gave leave for motions including a motion to join RBC as an added Respondent. The settlement conference was adjourned to May 31, 2019.

[7] In her answer, Mrs. DaSilva seeks a declaration that she is the sole and beneficial owner of the property and sues to recover on a promissory note that the couple executed.

[8] With respect to the mortgage, Mrs. DaSilva pleads that she is a woman of limited education and language skills. She contributed $430,000 to the purchase of the property while Susan and José contributed only approximately $63,000. She claims that RBC did not give her the opportunity to, nor did it recommend to her that she obtain independent legal advice before she signed the mortgage documents. She did not understand that she would be liable for the mortgage of $122,900.

[9] Mrs. DaSilva also pleads that in April 2009, Susan and José asked her to sign certain documents that she did not understand that secured a $500,000 line of credit against the property, which has been drawn to its limit. She says that RBC, again, did not give her the opportunity, nor did it recommend to her that she obtain independent legal advice before she signed the documents taking out and securing the line of credit. Between the original mortgage and the line of credit total indebtedness secured against the property, according to Mrs. DaSilva is $603,760.23.

[10] In March 2019, Susan amended her Application to plead how title was being held to the property, that all three titleholders had executed the appropriate documents for the mortgage and line of credit. She also says that she did not know that José had run the line of credit to the limit.

[11] José amended his Answer to say that Susan was fully aware of the indebtedness secured against the home, and that the money was used for family and his business expenses. He also said his and Susan’s interest in the property were subject to whatever equity Mrs. DaSilva is entitled to when the accounts are taken between the parties.

[12] Mrs. DaSilva amended her answer following the addition in March 2019 of the Royal Bank as an added Respondent. She pled that should RBC initiate any claim in respect of the mortgage or line of credit registered against the property that action should be tried together with this Application and governed by the Family Law Rules. She also asked for damages against José and RBC in an amount necessary to pay out the mortgage and line of credit. She also sought a declaration that she is not liable to RBC.

[13] RBC pleads that the mortgage and line of credit are valid. It relied on the executed documents and the fact that that it gave all the DaSilvas the opportunity to obtain independent legal advice in connection with the mortgage and line of credit. RBC claims that all of the DaSilvas opted not to do so. RBC says that at all times Mrs. DaSilva understood what she was doing.

The Mortgage Action

[14] RBC commenced its mortgage enforcement action in in Milton.

[15] The DaSilvas defaulted on the mortgage on or about August 30, 2018. RBC issued a Statement of Claim on January 24, 2019 and a Notice of Sale on January 30, 2019. Mrs. DaSilva brought the mortgage into good stead and RBC discontinued its action.

[16] The charge went into default again on or about April 16, 2019. The default has never been cured.

[17] RBC issued its Statement of Claim on May 9 and it’s Notice of Sale on May 15, 2019. José and Susan did not defend RBC’s action, so RBC obtained default judgment against José on July 2 and against Susan on August 1, 2019. Mrs. DaSilva defended the action, crossclaiming against Susan and José. Susan defended Mrs. DaSilva’s cross-claim on November 1, 2019.

[18] José either assigned himself or was assigned into bankruptcy on May 23, 2019.

APPLICABLE LAW

Trial Together

[19] Mrs. DaSilva seeks an order transferring the Milton mortgage enforcement action to Brampton and that it be tried together with the Brampton family Application.

[20] Under Rule 6.01 of the Rules of Civil Procedure, the Court has the power, where two or more proceedings are pending in the court that have common questions of law or fact, or where the relief claimed arises from the same transactions or occurrences, has the power to stay one of the proceedings, to consolidate them, or to have them heard at the same time or one immediately after the other.

[21] In exercising its discretion under Rule 6.01, the court should apply the following principles and considerations:

1. The intent of section 6.01 in conjunction with section 138 of the Courts of Justice Act is to avoid multiplicity proceedings, to promote expeditious and that inexpensive determinations of disputes, and to avoid inconsistent judicial findings (see Marot v. Marot, 2019 ONSC 866, at para. 71).

2. There is a non-exhaustive list of factors for the court to consider:

a. To what extent are the issues in the two actions interwoven?

b. Are the same damages sought in both actions in whole or in part?

c. Is a global assessment of damages required?

d. Are the other parties the same?

e. Are the lawyers the same?

f. Is there a risk of inconsistent findings if the actions are not joined?

g. Are the issues in one of the actions more complex than the other?

h. Will the decision in one of the actions likely put an end to or significantly narrow the issues for determination in the other action?

i. What is the litigation statute status of each action?

j. Is there a jury notice in one but not the other of the actions?

k. May steps in one action be used in the other action thereby obtaining efficiencies (such as examinations already conducted in one action applying to the other)?

l. Is the motion being used for delay?

m. Will cost to the parties be saved or increased?

n. Will there be advantage or prejudice to one of the parties if the actions are separate or tried together?

o. Will witnesses have to tell their story more than once?

p. Will a trial together of all of the actions result in undue procedural complexities that cannot be dealt with by the trial judge? and,

q. Is the motion brought over the objection of one or more of the parties?

(see: CNR v. Holmes, 2011 ONSC 487, at para. 44)

Motion to Transfer

[22] The criteria stipulated by Rule 13.1.02(2) for transfer of an action are:

a. where the events or omission that gave rise to the claim occurred;

b. where the damages were sustained;

c. where the subject matter of the litigation is located;

d. the community’s interest in the proceeding;

e. the convenience of the parties;

f. whether there are crossclaims, counterclaims or subsequent party claims;

g. advantages or disadvantages of particular place with respect to the most expeditious and least expensive determination of the proceeding;

h. availability of judges and facilities; and,

i. any other relevant consideration.

[23] In addition to these factors set out in the Rule, the jurisprudence gives rise to the following legal principles:

a. Whether to change venue is an “holistic exercise”, not one of merely a totting up the factors (see: Chatterton v. M & M Meatshops Ltd., 2014 ONSAC 1897 (Div. Ct.), at para 35);

b. It is the Plaintiff’s right to select the place of trial (see: McDonald v. Dawson, 1904 CarswellOnt 419, 8 OWR 773, at para.1);

c. Modern jurisprudence has tempered the Plaintiff’s right to select the place of trial and applies a more nuanced and balanced approach. The Plaintiff must satisfy the Court that the place for the conduct of the action which she has selected is a reasonable place. If the Plaintiff’s choice is reasonable, the onus shifts to the party seeking to change venue to satisfy the court that its proposed venue is “significantly better than the plaintiff’s” (see: Siemens Canada Ltd. v. Ottawa, 2008 CanLII 48152 (ON SC), [2008] O.J No. 3740, paras. 25 & 37).

POSITIONS OF THE PARTIES

Mrs. DaSilva

[24] Mrs. DaSilva seeks an order that the RBC action be transferred to Brampton and tried together with the Brampton family law proceeding between José and Susan. She says that it is the most expeditious and just thing to do. The issues are the same between RBC and all of the others in both proceedings and should be decided at the same time, in the same place. The family law matter in Brampton is procedurally advanced, settlement conferences having been held.

RBC

[25] RBC says that the Brampton Superior Court is notoriously slow and the Milton court relatively fast in dealing with proceedings. Further, while the courthouses are equidistant from Mrs. DaSilva’s home, Milton, is a less busy Court, will have shorter lines and is easier for Mrs. DaSilva (who uses a walker) to get in and out of the building. Further, RBC argues that it should not be dragged along in a complicated, process-laden family law proceeding.

Susan DaSilva

[26] Susan generally supports RBC’s position. She takes no particular position with respect to the venue. There is only one asset at issue in the family matter: the house. In her view, the civil motion should proceed first regardless of the venue.

[27] Jose did not participate in the motion.

RESULT

[28] Applying the factors listed under rule 13.1.02(2), the Milton action is transferred to Brampton.

[29] Applying the factors under rule 6.01, I order that the evidence obtained in each proceeding apply equally to the other.

[30] I make no order with respect to how the trial should proceed, but this is without prejudice to that question being revisited on a fuller record.

ANALYSIS

Transfer Motion

[31] Considering the factors under rule 13.1.02 and the applicable principles of law, the transfer of the RBC mortgage action from Milton to Brampton is in the interests of justice.

[32] The first six criteria of rule 13.1.02(2)(b) weigh in favor of moving the Milton action to Brampton. The house and all the parties (except RBC) are located in Peel. The DaSilvas’ damages were sustained in Peel and the subject matter of the litigation is in Peel. RBC’s damages were suffered wherever its head office is located. I assume that RBC is better able to absorb the costs associated with the change in venue than the personal litigants.

[33] RBC’s argument focussed on the Rule 13.1.02(2)(b) criteria concerning the advantages and disadvantages of a particular place and the availability of facilities. RBC advanced a principled argument that Milton is the more favorable jurisdiction applying the criteria under rule 13.1.02. RBC relies on one of the DaSilva’s former solicitor’s statement that the court in Brampton is notoriously slow, and argued that it is common knowledge that files in Milton move more quickly than files in Brampton.

[34] Notwithstanding RBC’s principled argument, the essence of RBC’s argument really is that it is more convenient and less expensive for RBC to have RBC’s mortgage action tried by itself, in Milton. RBC is the only party to benefit from maintaining the mortgage enforcement action in Milton, and is the only party most able to bear the cost of multiple proceedings.

[35] The status of the family Application does give some concern. RBC argues that its lis will become bogged down in the complicated family law Application. Mrs. DaSilva on the other hand says that the family law litigation is quite advanced, there having been a settlement conference.

[36] Insofar as it affects the interests of RBC and the parties with respect to the matrimonial home, the family Application has only just begun. It is true that the family Application has had its initial case conference and two settlement conferences. Those events all occurred before the issues that now concern the matrimonial home were raise. Production in the family Application has been slow and the subject of at least two orders. José has assigned himself or been assigned in the bankruptcy, which further complicates matters. Mrs. DaSilva and RBC have only been added to the family Application, recently. There is no evidence that the questioning that has been done in the family Application dealt with issues concerning the enforcement and validity of the mortgage or mortgage and title related issues that Mrs. DaSilva raises.

[37] Even considering the status of the family Application, on balance, I find that Brampton is a significantly better place to try the Milton mortgage action.

Trial Together or One After the Other

[38] Mrs. DaSilva seeks an order that the mortgage enforcement action and family Application be tried together or one of the other as the trial judge may direct, with all evidence gathered in one proceeding applicable in the other.

[39] Given that the family Application, insofar as it affects the interests of the DaSilvas and RBC with respect to the matrimonial home, has only just begun, RBC suffers no prejudice by moving the Milton action to Brampton and having the evidence obtained in one proceeding apply to the other.

[40] The only argument mitigating against having all evidence in one proceeding apply to the other is that the mortgage action is governed by the Rules of Civil Procedure and the family Application governed by the Family Law Rules, and that RBC’s and Mrs. DaSilva’s presence in both the mortgage enforcement action and the family Application may create confusion as to which Rules apply to their examinations and documentary disclosure obligations.

[41] I disagree.

[42] Competent counsel such as those involved in these two matters can conduct examinations appropriately and determine which aspects of oral or documentary discovery are governed by the Rules of Civil Procedure or the Family Law Rules. This is not an insurmountable obstacle.

[43] The fact that RBC and Mrs. DaSilva are parties in both of the proceedings should also not be an insurmountable obstacle. To clarify matters, however, I order that the determination of the interests of Mrs. DaSilva and RBC, and of Jose and Susan under the mortgage, be determined under the Rules of Civil Procedure. These interests are not, in their essence, family law questions. Therefore, documentary and oral discovery for these parties on mortgage issues shall be governed by and in accordance with the Rules of Civil Procedure.

[44] I declined to make the order that Susan requests (with which RBC agrees in the alternative) that the issues of the validity and enforceability of the mortgage be determined as a threshold issue, before the family issues are addressed. The suggestion is eminently logical. Because José is bankrupt, the only property issues that affect him that remain alive in the family Application is his interest in the matrimonial home. Such an order would save both RBC and Mrs. DaSilva expense.

[45] Such an order, however, cannot be made at this time. There is insufficient evidence to permit the court to make such an order. Further, making such an order would, in effect, bifurcate the hearings. It is possible, as the record develops, that the validity and enforceability of the mortgage can be dealt with by motion. It is also possible, as the record develops, that there will be sufficient evidence to permit the court to assess whether there should be a bifurcation of the issues as they affect Mrs. DaSilva and RBC. That determination, however, cannot been made now.

[46] I order that these reasons be placed in the Endorsements brief in the family Application.

Costs

[47] If the parties cannot agree on the question of costs, I will determine the question of who pays whom costs, and in what amount, in writing. Submissions will be limited to three double spaced pages, excluding bills of costs, offers to

settle, and authorities. Mrs. DaSilva shall deliver hers by 10 February 2020, and RBC and Susan by 24 February 2020. All submissions must be served and filed by 4 p.m. on the appointed days.

TRIMBLE J.

Date: January 27, 2020

Released: January 27, 2020