COURT FILE NO.: CV-20-08

DATE: 2021-05-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Farm Credit Canada v. 1047535 Ontario Limited and Mack Todd Manary

BEFORE: The Honourable Mr. Justice P. R. Sweeny

COUNSEL: Michael Cassone, Counsel for the Plaintiff, appearing by zoom

No one appearing for the defendants

Brent Manary appearing by telephone

HEARD: 19 May 2021 at Simcoe

ENDORSEMENT

Introduction

[1] The plaintiff, Farm Credit Canada (FCC), loaned the defendants, 104735 Ontario Limited (104 Ontario) and Todd Mack Manary (Manary), approximately $350,000.00 to purchase and construct a production facility on property legally described as “Part of Lot 2, Concession 3, Geographic Township of Houghton, as in NR604025, Norfolk County, and being all of PIN 50105-0164” (the Property). Manary is the President of 104 Ontario. Title to the Property was taken in the name of 104 Ontario. The loans advanced were secured by a mortgage given on the property to FCC.

PROCEDURAL HISTORY

[2] This matter came before me on May 19, 2021 for the hearing of this motion for summary judgment. I have outlined much of the history of this case in my endorsement issued April 6: Farm Credit Canada v. 1047535 Ontario Limited et al., 2021 ONSC 2541.

[3] This matter was scheduled to be heard on April 29. However, as a result of a Notice to the Profession issued by me on April 22, 2021, the matter could not proceed on that day. I issued an endorsement on May 6, 2021 setting this matter to be heard on May 19. I requested the plaintiff’s counsel to contact the defendant, Manary, using the telephone number that he had communicated with him on to set the dates for the cross-examination, to advise him of this date. I further ordered that my endorsement be mailed. The endorsement was mailed on May 6, 2021.

[4] The defendants were not present at the hearing in person. They were not present by Zoom. Plaintiff’s counsel confirmed that he had left a message about the date. I waited more than 15 minutes.

[5] Mr. Brent Manary, who I had previously ruled was not entitled to speak for the defendants, was present by phone. He addressed me. He raised the issue of a Motion Record of the Moving Party which had been delivered, not by the defendants, but by some entity called “The Manary Clan Trust.” It was not electronically filed. I reviewed the motion record including the cross-examination of Benjamin Vanden Hengel.

[6] The Motion Record sought an order: that I recuse myself, compelling the affiant for FCC to answer interrogatories posed, for summary judgment in favour of Todd Manary, and adjourning the hearing and abridging the time to bring the motion. Brent Manary sought to make submissions about the issues. I advised him that he had no authority to speak. He was not one of the defendants. He was muted at my direction.

[7] The behaviour of the defendants in this matter indicates the clear intention to delay and obstruct the determination of this matter on its merits. At every stage, an adjournment has been sought. I recommended to the defendant Mack Todd Manary that he seek legal counsel when he was last before me on March 24, 2021. It appears he did not.

[8] Mack Todd Manary’s failure to attend is another attempt to delay this matter. The defendants had notice of this hearing date and did not appear. I am satisfied that they did not attend to avoid having this matter heard. I determined it was appropriate to proceed with the motion for summary judgment.

IS SUMMARY JUDGMENT APPROPRIATE?

[9] I have reviewed the extensive material filed by the defendants and the Plaintiff. I heard submissions from counsel for the plaintiff.

[10] In the material filed by the defendants, Manary and 104 Ontario do not dispute that the loans were made, that a mortgage was given, and that there was default on the mortgage. Instead, the defendants raise obscure legal arguments which are not defences to the claim.

[11] I am satisfied there is no genuine issue requiring a trial and that the summary judgment procedure leads to a fair and just determination of this matter in a timely, affordable and proportionate manner: Hryniak v. Mauldin, 2014 SCC 7.

FACTS

[12] The facts are relatively straightforward. In April 2014, the plaintiff loaned the defendants the sum of $198,000.00 pursuant to a loan agreement dated April 1, 2014 and accepted by the defendants on April 10, 2014. This loan was advanced to finance 104 Ontario’s purchase of the property.

[13] In May 2014, the plaintiff loaned the defendants the additional sum of $150,000.00 evidenced by a loan agreement dated May 26, 2014 and accepted by the defendants on June 3, 2014. This loan was advanced to finance construction costs of production/processing facility on the property.

[14] As security for the loans, 104 Ontario granted the plaintiff a mortgage dated April 14, 2014 securing the sum of $400,000.00 plus interest at a ceiling rate of 18% per year. The mortgage was registered in the Land Registry Office as document number NK69596.

[15] On or about August 1, 2019 the defendants defaulted on their obligation under the loans and the mortgage. They have not cured their default. The plaintiff has demanded payment and the defendants have not paid.

[16] On October 25, 2019, the plaintiff issued and sent to the defendants a demand for payment of loans, notice of intention to enforce security pursuant to section 244 of the Bankruptcy and Insolvency Act, R. S.C. 1985, c. B-3 and a Notice of Intention to Realize on Security pursuant to section 21 of the Farm Debt Mediation Act, S.C 1997, c. 21

[17] On January 21, 2020, the plaintiff issued a statement of claim against the defendants seeking possession of the property and payment of the loans.

THE DEFENCES ARE NONSENSE

[18] As I have noted, the defendants do not dispute that the loans were advanced, the mortgage was granted and registered as security for loans, and the mortgage and loans are in default. Instead, the defendants assert “Organized Pseudolegal Commercial Arguments” of the type set out in Meads v. Meads, 2012 ABQB 571.

[19] The defendants allege that Manary is a tribesman of the non-status Kinakwii Nation and the Anishinabek Solutrean Indigenous Métis Nation (ASMIN). The Kinakwii Nation website indicates it was founded by William Allen of the Baldwin family (Grand Chief of the Great Circle) and Jon of the Maskell Family (Chief Protector) under notices dated July 1, 2010. The website includes an application to become a member of the Kinakwii Nation and indicates for the price of $300.00 per year anyone can become a member of Kinakwii Nation by filling out an application. The ASMIN website also includes an application for membership which indicates that for the price of $225.00 anyone can become a member of the ASMIN Nation. In any event, the status of Manary is not relevant in this case.

[20] The defendants also assert some duty to consult which has no application in this case. The assertion is nonsense.

[21] They assert that the land against which the FCC registered the mortgage is unceded land. This assertion is nonsense. There is no admissible evidence to support this assertion. This is the land which was purchased by 104 Ontario with the funds advanced by FCC.

[22] The defendants also raise a number of other defences or alleged triable issues in the factum which were not pleaded in the statement of defence. These include that FCC is an artificial entity that created money by printing up numbers in their computer and whether FCC is a bank or a financial institution. These and all the asserted triable issues are nonsense.

[23] The defendants received the funds, the defendants signed the documents evidencing the loans, the defendant 104 Ontario granted the mortgage, and the defendant, Manary, was the President of 104 Ontario. The funds were used to purchase the property and to make improvements to the property. The defendants have defaulted on their obligations and FCC is entitled to payment of the full debt owing plus prejudgment interest plus costs.

CONCLUSION

[24] The defendants are indebted to the plaintiff in the amount of $305,460.28. The plaintiff is entitled to prejudgment interest on the amounts of the loans as follows: $170,553.80 at 4.941% per annum commencing on January 17, 2020 until payment and $130,644.43 at 5.30% per annum commencing on January 17, 2020 until payment. In addition, the plaintiff is entitled to possession of the Property.

[25] The plaintiff is entitled to its costs on a substantial indemnity basis in accordance with the standard charge terms. I have reviewed the bill of costs and fix the plaintiff’s costs on a substantial indemnity basis in the amount of $35,000 all-inclusive. The costs will bear interest at the rate of 4.941% from the date of judgment.

[26] In the result, plaintiff shall have judgment against the defendants in accordance with the draft judgment signed by me.

[27] For completeness, I will address the Motion of the Moving Party. I note that the moving party has no standing to bring a motion in this proceeding. The defendants did not appear. I have reviewed the motion record and find that the objections made on the cross-examination were appropriate objections as the questions were irrelevant to the issues in this case. The Motion of the Moving Party is dismissed.

Sweeny R. S. J.