ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MYRTLE GORDON PAUL and EMMANUEL PAUL
Applicants
-and-
ANNINO VETA, ELEONARO VETA and NOVA SCOTIA SAVINGS & LOAN COMPANY
Respondents
BEFORE: F.L. Myers J.
READ: November 9, 2020
triage endorsement
1The proposed applicants seek an order deleting a reference to an old mortgage from the title register for their former home. The applicants apparently say that the mortgage was paid in full and was supposed to have been discharged decades ago. They have sold the house and their lawyer has undertaken to clear the mortgage from title before he releases the proceeds of sale to the applicants.
2The applicants propose to bring an unopposed application for an order deleting the mortgage from title.
3The applicant’s counsel attended Civil Practice Court to schedule the application on October 6, 2020. At that time, I advised him that unopposed and ex parte matters are being heard in writing at this time. Moreover, a written resolution would happen far sooner than a scheduled oral hearing.
4By email dated November 6, 2020, counsel for the applicants submitted draft, incomplete materials to the email address set aside for urgent matters. The urgency, he said, was extreme because he cannot release the sale proceeds to his elderly clients until he fulfills his undertaking to have the old mortgage removed from title. His clients need the proceeds for necessaries of life.
5Counsel has apparently been unable to have the application heard in the month since he attended Civil Practice Court. He advises:
I have exhausted all of my efforts but have not been able to file this online. I am humbly asking for some direction on how to have my materials filed in the most expedient fashion so I can get this order approved.
6While it is not generally the role of the court to give advice to counsel, I can provide some assistance.
7First, Rules 14.01 (1) and 14.07 (1) of the Rules of Civil Procedure, RRO 1990, Reg. 194, require that an application be commenced by issuing a notice of application. A draft notice of application dated July 15, 2020 is contained in counsel’s email. It is not yet issued.
8During the pandemic, the court has published numerous Notices to the Profession to tell lawyers and the public how various administrative steps can be carried out. Issuing originating process is one such step.
9If one views the court’s website on the internet at https://www.ontariocourts.ca/scj/ the first item at the top of the landing page is a hyperlink entitled “NOTICES AND ORDERS – COVID-19”. When clicked, the hyperlink takes users to this address: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/
10On the NOTICES AND ORDERS – COVID-19 page, the second bullet under the heading “PROVINCIAL NOTICES” is entitled Supplementary Notice to the Profession and Litigants in Civil and Family
Matters Including Electronic Filings and Document Sharing (Caselines Pilot) (October 29, 2020). Clicking that heading takes users to the Supplementary Notice at: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/supplementary-notice-september-2-2020/
11Part 2 of that Supplementary Notice is entitled “Electronic Court Filings – Justice Services Online. It says:
Counsel and parties continue to be discouraged from physically attending courthouses to file documents in person.
Where possible, counsel and parties are encouraged to use the Ministry’s newly expanded Justice Services Online (JSO) platform, including the Civil Submissions Online
12The underlined phrase “Civil Submissions Online” is another hyperlink that takes users who click on it to: https://www.ontario.ca/page/file-civil-claim-online. This is the guide that instructs users how to file their court documents electronically through the internet using the Judicial Services Online platform (or the JSO Portal as it is commonly called).
13The Civil Submissions Online guide explains that the first thing that a person who wants to use the JSO Portal must do is to register as a user of the site by opening an online One-key account. The One-key account also allows online payment of required court fees. The instruction guide then describes the different types of documents that can be issued and filed with the court using the JSO Portal:
Documents you can file online
You can submit certain court documents listed in Rule 4.05.1 of the Rules of Civil Procedure for automatic filing and issuance through the Civil Claims Online section of the site.
You can submit other civil court documents to seek filing and issuance through the Civil Submissions Online section of the site. You will get an email from the court within five business days to tell you if your documents were accepted. These documents are listed under Rule 4.05.2 of the Rules of Civil Procedure.
14Rule 4.05.1 does not list notices of application. But, Rule 4.05.2 (6) provides as follows:
Documents That May be Issued
(6) Any document that may or must be issued under these rules, other than a document listed under subrule 4.05.1 (7) or that is issued for the purposes of rule 60.07, may be issued electronically by using the Civil Submissions Online Portal in accordance with this rule, if the Civil Submissions Online Portal provides for the electronic issuance of the document.
15In summary then, under the Rulers of Civil Procedure as implemented by the Supplementary Notice to the Profession on the court’s website, if counsel wishes to have the notice of application issued, he should send it to the registrar through the JSO Portal.
16Once the application is issued, Rules 38.06 and 39.01 require that the notice of application and all affidavits to be relied upon, respectively, be served on all parties. Rule 38.06 (1) does not contain any exceptions from the requirement to serve all parties as Rule 37.07 (2) does for motions. But, one can always seek an order dispensing with service under Rule 16.04, where it is “impractical for any reason to effect prompt service of an originating process” or “where necessary in the interest of justice,”
17Rule 16.01 (1) requires personal service of the originating process (i.e. the notice of application). The draft notice of application names as respondents the corporate mortgagee and the initial vendors who were the mortgagors (the borrowers) under the impugned mortgage. The unsworn draft affidavit submitted with the request for an urgent hearing explains that the corporate mortgagee “no longer exists” and is “no longer active”. These two contentions are very different things and the difference can affect the issue of service. The exhibits are not attached, so I cannot tell if the corporation has either been dissolved or is simply inactive. One might consider whether the shareholders or Her Majesty might have to be served by virtue of the relevant corporate statute or the doctrine of escheat.
18There is no mention in the draft, unsworn affidavit of the whereabouts of the initial mortgagors. Nor is there any obvious reason why they are named as parties let alone not served. If the mortgage was duly assigned to the applicants and they paid it in full over time, I do not see any need for naming the initial mortgagors from whom the vendors bought the house and took over the mortgage.
19One might have thought that if the proposed application was one of extreme urgency that the affidavit would have been sworn by now and submitted with all its exhibits.
20However, even if the matter was not submitted through the urgent stream but was submitted as an ex parte or unopposed application, as I suggested in CPC, final documents are required. There is another Notice to the Profession that tells counsel and parties how to submit applications that are sought to be heard without notice or on a confirmed unopposed basis (assuming that one has grounds to do so). After one clicks on “NOTICES AND ORDERS – COVID-19” at the top of the landing page of the court’s website, one is taken to a list of provincial and regional notices. If one clicks on the hyperlink for “Toronto”, you are taken to a page entitled: “Notice to Profession – Toronto” that sets out the Toronto Expansion Protocol for Court Hearings During COVID-19 Pandemic at https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-to/ .
21Part C.1.1 of this Notice explains the procedures for having civil matters heard in Toronto. Subsection (3) provides:
- All motions and applications to a judge made without notice, on consent of all parties, and that are confirmed as unopposed, will be heard in writing. See section C.3 below for motions and applications for approval of settlements for parties under disability under Rule 7. Motions and applications made without notice, on consent, or on a confirmed unopposed basis may be filed in searchable PDF format through the Civil Submissions Online portal;
22In other words, had counsel simply completed his documents and filed them through the JSO Portal, not only would the notice of application have been issued but the application would have been filed to be heard or read.
23A few additional points need to be considered. In this case, the draft affidavit is written in counsel’s name. Evidence on the key facts (that the mortgage was paid in full and was supposed to have been discharged) is given by information and belief from the clients. Much evidence is adduced with unattributed hearsay and some, like the status of the corporate mortgagee, is adduced as inadmissible double hearsay from a corporate search firm.
24The law of evidence applies to applications and motions in writing. It limits the ways in which parties and counsel can prove facts in court. Just this past week, Justice Carroccia reiterated cogently the need for admissible evidence to be adduced if parties wish to obtain legal relief. In Naclerio v. McLarty, 2020 ONSC 6803, she wrote:
43Rule 39.01(4) of the Rules of Civil Procedure states: “An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.”
44However, where the facts are significantly contested, an affidavit from someone other than an individual with direct knowledge of the circumstances of the matter may be of little assistance.
45In Jacobson v. Atlas Copco, 2015 ONSC 4, the court dealt with the issue of the use of hearsay affidavit evidence on a motion and had this to say:
27In my opinion, this hearsay evidence is insufficient to establish the purpose for which Skakie sent his message, a central and contentious issue in this motion.
28Of course, hearsay evidence is permissible on a motion by virtue of rule 39.01(4) of the Rules of Civil Procedure which provides: An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
29There are good reasons for this rule. The issues in many motions are collateral to those of the proceedings in which they arise. Allowing hearsay evidence on such collateral issues is in keeping with the proportionality principle expressed in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28, and recognized in rules such as rule 29.2 (proportionality in disclosure) of the Rules of Civil Procedure. However, this derogation from the usual rules of evidence comes at a cost. One of the prices paid relates to the truth-finding process.
30Hearsay evidence is not usually admissible in court because “its evidential value rests on the credibility of an out-of-court assertor who is not subject to the oath, cross-examination or a charge of perjury”: see Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4th ed. (Markham, Ont.: LexisNexis, 2014) at § 6.9, at p. 239.
31Although rule 39.02(1) of the Rules of Civil Procedure permits cross-examination of an affiant, that right is largely illusory when it comes to hearsay evidence. About the best the cross-examiner can hope to do is to cross-examine on whether the affiant truthfully recounted what was said, not whether what was said was true. For this reason, courts have held that less weight and more scrutiny should be given the closer the hearsay evidence comes to the dispositive issue in the motion. [Emphasis added.]
46The defendant has not provided affidavits from anyone with direct knowledge of the circumstances of this matter. As a result, there is a lack of evidence in a number of areas that are relevant to a proper consideration of this matter.
25This case is an application rather than a motion. Rule 39.01 (5) limits the use of evidence on information and belief on applications to only “facts that are not contentious”. Evidence of contentious facts – facts that are not just background or so well documented as to be beyond contention - must come from someone with knowledge of the facts to which he or she attests.
26Finally, I note that counsel has provided a draft factum with his request for urgent relief. It refers to statutes of limitations and to Rule 16.04 on service.
27But the factum does not contain a single reference to any statute or case law that provides a basis for a court’s jurisdiction or entitlement to delete an old mortgage from title in the circumstances alleged.
28Rule 38.09 (1) requires the applicant to file a factum that contains “a concise argument stating the facts and law relied on”. It is generally appreciated when counsel include some reference to applicable law in their concise argument of the applicable law.
29Judges receive numerous motions in writing (or “basket motions” as they are commonly called). It does not take very long to read a properly prepared basket motion. It is far more difficult and time consuming for a judge to deal with a poorly prepared basket motion. Struggling to find proof of service, or proof that it truly is on consent of all parties, or proof of the facts required for the relief sought, takes time and effort. So, the tacit deal is that if counsel provide us with motions in writing that contain the necessary proof of facts and law, we are all too glad to sign them. It’s quicker, easier, and a happier outcome for all concerned. I know of no judge waiting around to incur the extra time, effort, and frustration to reject well-prepared basket motions.
30I do not grant an urgent hearing for this unissued application on an unsworn affidavit that is full of inadmissible material and is not supported by a factum with any law supporting the applicants’ entitlement to the principal relief sought. I do not doubt that the applicants want their proceeds of sale. They have apparently been waiting many months. Once the application is commenced and filed with the requisite proof of facts and legal support, it will be read by a judge with alacrity. It takes approximately five days for documents to get through the JSO Portal to the relevant schedulers in the Civil Trial Coordinators’ Office. The Civil Trial Coordinators and Assistant Trial Coordinators forward ex parte and unopposed motions in writing to judges within a day or two of receipt. Motions in writing that contain the evidence and law needed to support the relief sought are generally signed and released within a few days of being forwarded to a judge in Toronto.
31Finally, counsel are reminded to file a draft order or judgment in WORD format for the judge to consider as part of their basket motion material.
_______________________________ F.L. Myers J.
Date: November 9. 2020