COURT FILE NO.: CV-19-81906

DATE: 2020/11/13

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: THE TORONTO DOMINION BANK, Applicant AND JASON FAYAD and NADIA GHADDAR, Respondents

BEFORE: Justice Sylvia Corthorn

COUNSEL: Michael Swinwood, for the Respondent, Jason Fayad James Butson, for the Applicant Nadia Ghaddar, Self-represented Respondent

HEARD: In writing

ENDORSEMENT

Introduction

1In December 2019, the applicant sought an order related to the management and disbursement of the proceeds from the sale of a residential property under mortgage enforcement proceedings (“the Proceeds”). The relief granted on December 1, 2019, on the return of the application (“the Order”) included the following terms:

a) The applicant is to pay the Proceeds, approximately $25,000, into court;

b) Once the Proceeds are paid into court, the liability of the applicant with respect to the Proceeds is extinguished;

c) The applicant’s costs are fixed at $3,000; and

d) The applicant’s costs are to be paid from the Proceeds, once an order is made for the monies to be paid out of court (i.e. when disbursed to the individual respondents – the former owners of the subject property).

2The relief granted in paragraph (a), above, was as proposed by the applicant. Other terms of the order were as proposed by the applicant on the return of the motion or as determined by the Court.

3The applicant did not comply with para. 1 of the Order. Instead, the applicant paid the Proceeds to “Agueci Calabretta in trust”. Agueci Calabretta is the Toronto-based law firm which represents the applicant in this matter. The Proceeds remain in the firm’s trust account.

4The respondents bring this motion for an order providing for the disbursement of the Proceeds from the Agueci Calabretta trust account.

Discussion

5The applicant, the individual respondents, and the Alberta-based trustee for Ms. Ghaddar (with respect to her financial difficulties) consent to the disbursement of the Proceeds as follows:

Amount in trust $ 25,324.61

Costs per the Order $ 3,000.00¹

“Costs” of this motion $ 2,000.00²

To Nadia Ghaddar $ 10,162.30

To Jasan Fayad $ 10,162.30

6The court does not take issue with disbursement of the Proceeds as set out above. The relief sought on the motion is not, however, sufficient to permit the Proceeds to be disbursed as proposed.

7As noted above, the applicant did not comply with para. 1 of the Order – the Proceeds were never paid into court. It appears that a decision was made by one or more of the parties to avoid the time and expenses associated with payment of monies into court and thereafter with securing payment out of court. That decision having been made, the respondents now require “relief other than that originally obtained”: r. 59.06(2)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”).

8The notice of motion identifies that the motion is brought in writing. It does not, however, identify that the respondents rely on the subrule relevant to motions in writing – r. 37.12.1(1). That subrule permits a motion to proceed in writing where it is on consent, unopposed, or without notice under r. 37.07(2).

9The motion record includes the consent of the parties to the application and of the trustee for Ms. Ghaddar to the proposed disbursement of the Proceeds. The respondents are therefore entitled to bring the motion in writing.

10The respondents have not, however, complied with r. 37.12.1(2), which requires that a copy of the draft order be included with the consent. Instead, the respondents filed a draft order independent of the motion record.

11Subrule 1.04(1) mandates that the Rules “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding.” The relief sought in the notice of motion is specific and limited to the disbursement of the Proceeds; it does not include the boiler plate phrase “such further and other relief as counsel may request and this court deem just”. Regardless, it would be neither expeditious or cost-effective to require the respondents to deliver another motion record to (a) re-phrase the relief sought to accord with r. 59.06(2), or (b) comply with r. 37.12.1.

12The relief requested includes an order that $2,000 be paid from the Proceeds to Elders Without Borders (the lawyers of record for the respondents on this motion), as Mr. Fayad’s “costs” of the motion. The respondents’ respective entitlement to the Proceeds has nothing to do with the costs of this motion. The payment of $2,000 to Elders Without Borders is a payment towards the solicitor-client account of that firm for its work on this motion. The relief granted below reflects that characterization of the payment to be made, on the consent of the respondents, to Elders Without Borders.

Variation of the Order and Relief Granted on this Motion

13The motion record includes a copy of the court’s handwritten endorsement, to which is attached the draft order on the application. The draft order, as revised by the court by hand, is part of and attached to the handwritten endorsement that appears on the back page of the application record. A copy of the Order, as issued and entered, is not included in the motion record. There is no evidence that the Order was ever taken out.

14In light of all of the above, this court orders as follows:

1. The relief granted in the December 6, 2019 handwritten endorsement of this court shall be varied as follows:

a) Paragraph 1 of the order attached to the handwritten endorsement shall be varied to read as follows:

1. THIS COURT ORDERS that the Applicant shall pay to “Agueci Calabretta in trust” the sum of $25,324.61, being the surplus of sale in the hands of the first mortgagee (“the Proceeds”), from the sale under mortgage, of the property municipally known as 263 Titanium Private, Ottawa, Ontario, K1C 0A5, to await any further order of this court.

b) Paragraph 4 of the order attached to the handwritten endorsement shall be varied to read as follows:

4. THIS COURT ORDERS that either Mr. Fayad or Ms. Ghaddar, personally or, the latter, through her trustee, may bring a motion, within this application, for an order for payment from “Agueci Calabretta in trust” for payment of all or a portion of the Proceeds.

c) Paragraph 5 of the order attached to the handwritten endorsement shall be varied to read as follows:

5. THIS COURT ORDERS that, subject to further order of the court, the costs fixed in paragraph 3, above, shall be paid from the Proceeds held by “Agueci Calabretta in trust” when an order is made on motion under paragraph 4, above.

6. THIS COURT ORDERS that the “Proceeds” referred to in the December 6, 2019 order of this court shall be paid from “Agueci Calabretta in trust” as follows:

To Agueci Calabretta $ 3,000.00

To Elders Without Borders $ 2,000.00

To Nadia Ghaddar $ 10,162.30

To Jasan Fayad $ 10,162.30

3. THIS COURT ORDERS that the $2,000.00 payable to “Elders Without Borders” under paragraph 2, above, shall be applied towards the solicitor-client account of Elders Without Borders for its work, on behalf of Jason Fayad, on this motion in writing.

15As noted above, the applicant did not comply with paragraph 1 of the Order. As a result, the applicant’s liability with respect to the Proceeds was not extinguished as it might otherwise have believed. The moving party shall serve the applicant with a copy of this endorsement, the Order (based on the revised relief), and the order issued and entered pursuant to this endorsement.

Footnotes

1. 1Costs of the application, to be paid to Agueci Calabretta as counsel for the applicant.
2. 2Payable to the lawyers of record for Mr. Fayad on the motion – on the consent of the parties and of the trustee for Ms. Ghaddar. This payment is not, however, “costs” – see the discussion in para. 12 of this endorsement.