COURT FILE NO.: CV-19-00632064
DATE: 20201001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Richard Mayer
Plaintiff
– and –
Mary Saah
Defendant
Ryan Atkinson, for the Plaintiff
Shawn M. Philbert, for the Defendant
HEARD: July 22, 2020
J. Steele J.
[1] This was a motion by the plaintiff for an order granting summary judgment against the defendant for, inter alia, damages in the amount of $33,287.51 (as of December 2, 2019), and an order for possession of the mortgaged property municipally known as 2089-3045 Finch Avenue, North York (the “Property”).
[2] There was also a motion by the defendant seeking leave to amend her Statement of Defence and to issue certain third party claims.
Background
[3] On or about April 27, 2017, the plaintiff (mortgagee) granted the defendant a mortgage, which mortgage was secured on the Property. The mortgage was registered against the Property.
[4] On or about October 29, 2018, the plaintiff and the defendant agreed to increase the principal amount of the mortgage from $22,000 to $27,410 (the “Mortgage”). The Mortgage bears interest at 12% per annum, calculated monthly.
[5] The Mortgage is the second mortgage on the Property.
[6] Default on the Mortgage occurred on or about October 26, 2019 and continues to the present date. The plaintiff has made demands for payment. The plaintiff commenced power of sale proceedings on January 6, 2020.
[7] The defendant sought leave to amend her Statement of Defence and add a counter-claim or issue third party claims against Ben Allison (“Mr. Allison”), 2557311 Ontario Inc., Farzana Tabassum (“Ms. Tabassum”), Carmen Hyman and Sonyette Hyman (the “Third Party Claim”). As discussed below, it is the defendant’s position that Mr. Mayer was part of an elaborate scheme with these other parties. The defendant filed the amended Statement of Defence with her notice of Cross-Motion. I have granted leave to amend the Statement of Defence.
[8] At the close of oral arguments, I asked counsel to provide brief submissions on certain options under Rule 20. There was some misunderstanding regarding my request, so a further brief case conference was convened to reiterate my instructions. I considered those brief submissions following that case conference.
Analysis
[9] The Court has been asked to grant summary judgment in favour of the plaintiff. Rule 20.04 requires that the Court grant summary judgment if “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”.
[10] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out the principles for the summary motion judge to consider in order to determine whether there is a genuine issue requiring a trial based on the evidence before the Court. Specifically, the Supreme Court of Canada indicated that there will be no genuine issue requiring a trial when the summary judgment 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 a just result.”
[11] The Supreme Court of Canada in Hryniak v. Mauldin also explained the process that should be followed by the summary motion judge by providing a roadmap at paragraph 66:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring a 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.
[12] This is a straight-forward case – a mortgage and a default on the mortgage. In fact, the defendant acknowledges in her affidavit dated July 15, 2020 (the “Saah 2020 Affidavit”) that “a mortgage was registered on [her] property, and that the provider of that mortgage was Richard Mayer.”
[13] There is also evidence from Ms. Saah that she received the mortgage funds. At paragraph 39 of the Saah 2020 Affidavit, she stated: “I can advise the court that Carmen gave me the cheque…I went to the bank and cashed the cheque, called Carmen and told her I had the cash and Carmen then met me at the Woodbine Mall, where I gave the $15,000.00 cash to Carmen, who said she would give it to Mr. Allison.” There is also a copy of Ms. Saah’s TD Bank account, which shows a deposit of $15,000 made, then a subsequent cash withdrawal of the same amount. I note that the amount of the initial mortgage was $22,000, but the amount paid directly to Ms. Saah was $15,000. The difference between the $22,000 mortgage and $15,000 cheque received by Ms. Saah is explained in the trust ledger statement provided to Ms. Saah by her lawyer, Ms. Tabassum. In particular, Ms. Saah had provided a direction such that a portion of the mortgage money went to Mr. Allison and there was a pre-payment of a year’s interest on the mortgage, legal fees, and certain other transaction costs.
[14] It is clear on the record that the Mortgage was placed on the Property by Ms. Saah. Mr. Mayer is the mortgagee. Ms. Saah defaulted under the Mortgage in October 2019.
[15] Ms. Saah also received from her lawyer a “closing letter”, statement of account and trust ledger on April 26, 2017. These documents explain the transaction and set out the allocation of funds.
[16] Accordingly, under the Mortgages Act Mr. Mayer has the right to exercise certain powers, including power of sale of the Property.
[17] Ms. Saah took the position that she did not intend to enter into a mortgage agreement and argued the defence of non est factum in this regard. The evidence on the record before me clearly illustrates an intention by Ms. Saah to enter into a mortgage agreement.
[18] The defendant makes certain allegations in her amended Statement of Defence that she is “an innocent party who was tricked by the Plaintiff, Ms. Tabassum, Mr. Allison, 2557311 Ont. Inc. (c.o.b.) Money that works, Sonyette Hyman, and Ms. Carmen Hyman into entering into the mortgage transactions”. In this regard the defendant argued that the mortgage is vitiated on account of certain alleged fraudulent misrepresentation/activities of the plaintiff and/or by his agents which enticed Ms. Saah to enter the mortgage transaction. There is no evidence whatsoever of any fraudulent misrepresentation/activities of the plaintiff.
[19] Based on the record before me, and the submissions of counsel for the defendant, the issue of whether there was an agency relationship between the plaintiff and Mr. Allison, 2557311 Ontario Inc. (c.o.b.) as Money That Works, Ms. Tabassum, Sonyette Hyman and Carmen Hyman (the “Alleged Conspirators”) is the defendant’s primary argument for not granting summary judgment in this case. Unless there is an agency arrangement there is nothing more to this matter than the Mortgage default. If there was evidence of an agency arrangement tying the plaintiff to the Alleged Conspirators, then there could be additional relevant issues. Accordingly, I considered whether there was an agency arrangement based on the record.
[20] The essential components of an agency relationship were set out at paragraph 53 in Royal Securities Corp. v. Montreal Trust Co., 1966 CanLII 173 (ON SC), [1967] 1 O.R. 137 (affirmed by the Court of Appeal, 1967 CanLII 224 (ON CA), [1967] 2 O.R. 200):
Keeping in mind that it is often dangerous to seek concise definitions of complex legal relationships, I will set out what I believe to be the essential requisites for or ingredients of an agency relationship:
The consent of both the principal and the agent;
Authority given to the agent by the principal, allowing the former to affect the latter's legal position;
The principal's control of the agent's actions.
[21] The defendant raised allegations that she was duped by the Alleged Conspirators to, inter alia, enter into the Mortgage as part of an elaborate scheme that would put “people like [Ms. Saah] in a better financial position than [they] were prior”. Her evidence included an agenda for a “Funding Angels Meeting”. However, there is no documentary evidence of an agency arrangement tying the plaintiff to a “Money That Works” venture or the “Funding Angels Meetings” (the “Alleged Money Scheme”).
[22] There is no nexus on the record between the plaintiff and Sonyette Hyman or Carmen Hyman. These individuals are church sisters of Ms. Saah, one of whom introduced her to Mr. Allison.
[23] Mr. Allison is a mortgage broker, who assisted Ms. Saah in finding a mortgagee (Mr. Mayer). Mr. Allison is also the director of 2557311 Ontario Inc. (c.o.b.) as Money That Works. The fact that Mr. Allison introduced Ms. Saah to Mr. Mayer does not make him an agent of Mr. Mayer. There is no evidence that Mr. Mayer somehow engaged Mr. Allison to act as an agent on his behalf or vice versa.
[24] Ms. Tabassum was the real estate lawyer who worked on the mortgage transaction for both parties. As it was a private mortgage transaction under $50,000, she was permitted to act for both the lender and the borrower under Rule 3.4-14 of the Rules of Professional Conduct, provided certain other Rules are complied with.
[25] Ms. Saah made a complaint to the Law Society of Ontario (“LSO”) about Ms. Tabassum, alleging that she may have, inter alia, acted in a conflict of interest and failed to recommend that Ms. Saah seek independent legal advice (“ILA”). There was no written waiver of Ms. Saah declining ILA, but Ms. Tabassum advised the LSO that she recommended ILA to Ms. Saah who declined. The LSO, in a letter to Ms. Tabassum, dated December 30, 2019 “concluded that the investigation did not uncover sufficient evidence of professional misconduct to warrant further regulatory proceedings” and that they have closed their file. Again, there is no evidence of any agency relationship between Mr. Mayer and Ms. Tabassum. She was the lawyer for both parties on the mortgage transaction.
[26] Accordingly, the only evidence on the record of the alleged agency arrangement between the plaintiff and the Alleged Conspirators is the affidavit evidence of Ms. Saah. Ms. Saah alleged that certain of the Alleged Conspirators were agents of the plaintiff and made certain representations to induce her to put a mortgage on her home. Mr. Mayer in his affidavit dated July 17, 2020 (the “Mayer Affidavit”) denied that Mr. Allison, Ms. Tabassum, Sonyette Hyman and Carmen Hyman were his agents and denied having any knowledge of the dealings between these parties and Ms. Saah.
[27] There are numerous inconsistencies in Ms. Saah’s evidence such that it calls into question her credibility. A few examples are as follows:
a. In the Saah 2020 Affidavit, she stated: “it was never my intention to execute any mortgage-related documents or give authority to Ms. Tabassum or Mr. Allison to enter into a mortgage agreement on my behalf”. However, Ms. Saah was cross-examined on her affidavit dated September 10, 2019, about the Mortgage by Mr. Atkinson in another proceeding having Court file #CV-18-605458 (the “Green Action”). In the cross-examination of Ms. Saah in the Green Action (the “Saah Cross”) she confirmed that she signed mortgage documents for a mortgage that was registered on her house that Mr. Allison helped her arrange. In the re-examination in the Saah Cross transcript Ms. Saah was asked “Did you think you were borrowing money to put a mortgage on your property?” and Ms. Saah responded “yes”.
b. In the Saah 2020 Affidavit she stated that she “did not agree to re-sign the mortgage renewal because the plaintiff and/or his agents confirmed that any money owed would be paid by Mr. Allison and his company.” And she stated that her “signature is not on the renewal of mortgage document, despite what is stated there and there are no documents executed by me regarding a renewal, and alleged signature of mine is forged”. However, in the Saah Cross, she confirms that when she had not paid back the mortgage money she had to do a second mortgage, which was a mortgage extension.
c. In the Saah 2020 Affidavit she stated: “at no material time did I receive the mortgage proceeds that the plaintiff is suing me for. In short, by executing the mortgage agreement I received zero ($0) dollars…”. Whereas later in the same affidavit she stated: “I can advise the court that Carmen gave me the cheque. I did not get it from Ms. Tabassum. I went to the bank and cashed the cheque, called Carmen and told her I had the cash and Carmen then met me at the Woodbine Mall, where I gave $15,000.00 cash to Carmen, who said she would give it to Mr. Allison. Mr. Allison later confirmed that he received the $15,000.00 from Carmen”.
d. Ms. Saah’s affidavit dated September 10, 2019 in the Green Action (the “Saah 2019 Affidavit”) provided that Ms. Saah attended at Mr. Allison’s office where he handed her the cheque for the mortgage proceeds. As mentioned in c. above, this account differs from the Saah 2020 Affidavit, where she indicated that Carmen gave her the cheque.
[28] Accordingly, given the inconsistencies in Ms. Saah’s evidence, I have accepted Mr. Mayer’s evidence that none of the Alleged Conspirators were his agents and that he had no knowledge of the Alleged Money Scheme.
[29] There is not sufficient evidence on the record before me to find any agency relationship between Mr. Mayer and any of the Alleged Conspirators. As this is a motion for summary judgment with regard to the Mortgage, it is well established that the responding party must “put their best foot forward” and “lead trump or risk losing”. If there was evidence of an agency relationship between the plaintiff and any of the Alleged Conspirators, then the defendant should have put such evidence forward. For example, the defendant could have examined any of the Alleged Conspirators before the hearing of this motion. As noted by Justice Diamond in Crisafi v. Urban Landmark Realty Inc., 2018 ONSC 191 at para. 57: “…[T]he provisions of Rule 39.03 of the Rules of Civil Procedure explicitly allow a party to examine a witness before the hearing of a pending motion by service of a summons to witness.”
[30] As noted by Justice Diamond in the Crisafi case, the expanded powers set out in Rules 20.04(2.1) and (2.2) are not tools of the parties. The parties cannot rely on a further opportunity to present their evidence. They had an obligation to put forward their best evidence at the summary judgment motion. These expanded powers are for the Court to use if it is satisfied that there is a genuine issue requiring a trial and the Court needs additional information.
[31] I did consider whether the expanded powers of the Court should be employed but determined, in light of the record before me, that this case is not one where those additional powers should be used. There is no genuine issue requiring a trial. There is a valid mortgage in place and a default on the mortgage. With regard to the Alleged Money Scheme, the defendant did not provide evidence to establish any agency relationship between the plaintiff and the Alleged Conspirators, other than the self-serving and unsupported statements made in the Saah 2020 Affidavit. As noted above, Mr. Mayer’s affidavit denied any such relationship.
The Third Party Claim
[32] The defendant had requested an Order granting leave to issue a Third Party Claim, which I have denied. This requested claim relates to the Alleged Money Scheme. In my view this is a different action than the one before me, which relates to a mortgage default. Mr. Mayer has the right to have his Mortgage action determined in a timely manner. If the Third Party Claim was permitted, this would significantly delay Mr. Mayer’s Mortgage matter. In Wilson v. Servier Canada Inc., 2001 CarswellOnt 4267 (Ont. S.C.), the Court stated at para. 23 that the timely resolution of claims is critical to a just and fair court process:
“Our society’s concept of justice dictates that fairness is inherently fundamental to our court processes. Timeliness in the determination of claims on their merits is critical to achieving fairness to the parties. Justice must be done and it must be seen to be done in a timely way and manner. It is prejudicial to plaintiffs to deny them fairness through further substantial delays by granting Servier’s motion [for an order extending the time for issuing a third party claim]. To grant Servier’s motion would inevitably have the result of delaying and frustrating a determination of the common issues on their merits. A basic objective of the judicial system is access to justice”.
[33] I further note that Rule 29.09 provides that “[a] plaintiff is not to be prejudiced or unnecessarily delayed by reason of a third party claim, and on motion by the plaintiff the court may make such order or impose such terms, including an order that the third party claim proceed as a separate action, as are necessary to prevent prejudice or delay where that may be done without injustice to the defendant or the third party.”
[34] In the instant case, I find that it would be prejudicial to Mr. Mayer to further delay his repayment by allowing the Third Party Claim. Mr. Mayer is 87 years old and in poor physical health. He relies on income from Old Age Security and Canada Pension Plan. He indicated in the Mayer Affidavit that to supplement his income he “granted a small mortgage…to the Defendant, Mary Saah…, as she wanted to use it for some sort of investment, which had nothing to do with me.” He further indicated that the difficulty collecting payment on the Mortgage and expenses associated with collecting it are causing him financial hardship.
[35] The agreement between Mr. Mayer and Ms. Saah was for the Mortgage, which she has defaulted on. How Ms. Saah chose to spend or invest the money she received from the mortgage is up to her and has no bearing on Mr. Mayer’s claim to be re-paid on the Mortgage. Any claim Ms. Saah may have against the Alleged Conspirators with regard to the Alleged Money Scheme may be launched by her in a separate action.
Disposition
[36] As I have determined that the Mortgage was placed on the Property by Ms. Saah, she defaulted under the Mortgage in October 2019 and there is no genuine issue requiring a trial based on the evidence:
a. Summary judgment is ordered as against the defendant, Mary Saah, on the Statement of Claim in the amount of $34,933.25.
b. Post judgment interest shall accrue at the post-judgment interest rate under the Courts of Justice Act of 2% as of the date of this Judgment.
c. An Order for possession of the mortgaged property municipally known as 2089-3045 Finch Avenue, North York ON M9M 0A5 is granted to the plaintiff.
[37] The plaintiff had also requested leave of the Court to obtain a writ of possession of the Property. The plaintiff is required to bring a separate motion to the Court, filing evidence to satisfy Rule 60.10, in order to obtain leave for this relief.
[38] With regard to costs, the parties are encouraged to come to an agreement. If no such agreement can be reached by October 15, 2020, the parties may deliver written submissions on costs (not to exceed 3 pages each, double spaced) together with their costs outline to my judicial assistant, Polly Diamante (Polly.diamante@ontario.ca). The plaintiff may deliver his by no later than the close of business on October 28, 2020 and the defendant will have 10 business days to respond. In that case, my costs decision will be released in due course once I have considered these additional submissions.
Released: October 1, 2020 J. Steele J.
COURT FILE NO.: CV-19-00632064
DATE: 20201001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Richard Mayer
Plaintiff
– and –
Mary Saah
Defendant
REASONS FOR JUDGMENT
J. Steele J.
Released: October 1, 2020