Court File and Parties
COURT FILE NO.: CV-20-84973
DATE: 2021/01/20
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: ALEXANDER FALLE, Applicant -and- WILLIAM ROGER, Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Carine Plamondon, for the Applicant No one appearing for the Respondent
HEARD: Without notice and in writing
ENDORSEMENT
Introduction
[1] This application is for an order discharging a mortgage, in favour of William Roger, in the amount of $6,600. The mortgage is registered against the title to property known municipally as 17 Briggs Avenue, in the City of Ottawa (“the Property”). The applicant purchased the Property in October 1959 and remains its registered owner.
[2] The respondent, William Roger, is said to be deceased. The applicant’s evidence is that the mortgage was paid in full. The applicant did not, however, obtain a discharge of the mortgage from the late Mr. Roger. The applicant seeks relief from the court so as to register a discharge of the mortgage. The applicant plans, once the mortgage is discharged, to effect the transfer of title to the Property from himself, as a single owner, to his spouse, his son, and himself as joint tenants.
Procedural Issues
a) The Supporting Affidavit
[3] This application is brought in writing. The most recent Notice to the Profession with respect to motions and applications has been in effect since September 14, 2020. The categories of motions and applications that may be brought in writing are set out therein. Those categories include, “[e]x parte, consent and unopposed motions and applications”.
[4] The relief sought on the application includes an order dispensing with the requirement to serve the notice of application and the application record on the respondent. The request is therefore for the application to be heard on an ex parte basis.
[5] The only affidavit filed in support of the application is from a solicitor, Matthew Ebbs (“the Ebbs Affidavit”). In his affidavit, Mr. Ebbs identifies that he is acting for the applicant with respect to a residential real estate transaction. Although not identified as such, the court infers that the transaction on which Mr. Ebbs is acting is the transfer of title of the Property from a sole owner to three joint tenants.
[6] Much of Mr. Ebbs’ evidence is based on information provided to him by the applicant. No explanation is provided as to why the applicant did not provide a supporting affidavit.
[7] The Rules of Civil Procedure[^1] set out specific requirements with respect to affidavit evidence based on information and belief in support of (a) an application, and (b) more specifically, an application made without notice. First, r. 39.01(5) provides that, “[a]n affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.” The evidence based on information and belief is identified as such in the Ebbs Affidavit. To that extent, the Ebbs Affidavit complies with the requirements of the Rules.
[8] Second, r. 39.01(6) provides that, “[w]here a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application.” I am not convinced that, by relying on the Ebbs Affidavit, the applicant has complied with this requirement.
[9] For example, at para. 4 of his affidavit, Mr. Ebbs says, “The Applicant has advised me, and I truly believe that the mortgage was paid in full and that the Applicant does not owe any amount of money under the said Mortgage.” The only issue on this application is whether the mortgage has been paid in full and the applicant is entitled to a discharge of it. The applicant is likely in a position to address the following points:
• The circumstances that led to the registration of the mortgage on title to the Property;[^2]
• How the mortgage was paid and the date as of which it was paid in full;
• What efforts, if any, the applicant made to obtain a discharge from the late Mr. Roger; and
• Why, if the applicant was unable to secure a discharge from the late Mr. Roger, the applicant did not take steps previously to obtain an order of the court providing for the discharge of the mortgage.
[10] I accept that those matters may not be contentious almost 50 years after the mortgage was registered on title. I find, however, that those matters fall within the category of “material facts” such that “full and fair disclosure” is required under r. 39.01(6).
[11] As another example, at para. 5 of his affidavit, Mr. Ebbs says, “The Applicant has advised me, and I truly believe that the Mortgagee, William Roger, passed away many years ago. As such the Applicant is unable to obtain a mortgage discharge without the intervention of the court.” Unless the applicant has first-hand knowledge that Mr. Roger passed away many years ago, then the information in para. 5 of the Ebbs Affidavit is double hearsay, at a minimum. Double hearsay falls short of the requirements of r. 39.01(6). I expect that the applicant is in a position to set out the extent of his first-hand and/or, if required, second-hand knowledge with respect to Mr. Roger’s passing.
[12] There is another problem with the Ebbs Affidavit. At para. 6, Mr. Ebbs says, “In any event, the time for seeking recovery of monies due under the said Mortgage has expired pursuant to sections 22 and 23 of the Real Property Limitations Act, R.S.O. 1990, c. L.15”. It is up to the court to determine whether the relevant limitation period has expired. The statement made at para. 6 is argument and not evidence. A factum is not required for an application in writing. There may, however, be circumstances where a brief factum may be helpful to the moving party to obtain the desired relief. One such circumstance is on an ex parte application.
[13] Similarly, the statement made at para. 8 of the Ebbs Affidavit is not evidence. Mr. Ebbs says the following: “Pursuant to section 12(8) of the Mortgages Act, R.S.O. 1990, c. M.40, where it appears that all money due upon a mortgage has been paid and a discharge cannot be obtained without undue delay and expense, the court may make an order discharging the mortgage.” In his affidavit, Mr. Ebbs attempts to address the first part of the two-part requirement set out in s. 12(8). He identifies that the mortgage is said to have been paid in full.
[14] Mr. Ebbs does not, however, address the second part of the two-part requirement. There is no evidence as to (a) what steps need to be taken to identify a representative of Mr. Roger’s estate (“the Roger Estate”), (b) which, if any, of those steps were taken, and (c) the extent of the delay, if any, that might be incurred in identifying a representative of and attempting to secure a discharge of the mortgage from the Roger Estate.
[15] The statement made at para. 8 of the Ebbs Affidavit is, in any event, law or argument and not evidence. Once again, if the applicant believes it is necessary to address legal issues in that manner, he may wish to consider filing a brief factum in support of the relief sought.
[16] In summary, evidence in compliance with rr. 39.01(5) and (6) is required in support of the application.
b) The Request to Dispense with Service
[17] It is incumbent upon the applicant to provide the court with evidence in support of all forms of relief sought on the application; that includes the request for an order dispensing with the requirement to serve the notice of application, application record, and, if made, the order on the respondent. That aspect of the relief requested is addressed in a single paragraph in the Ebbs Affidavit.
[18] At para. 11, Mr. Ebbs says, “Finally, the Applicant is seeking an order dispensing with service on the respondent, William Roger, of the Notice of Application, Application Record and the Order”. That paragraph is nothing more than a repetition of the relief requested in the notice of application. It is not evidence in support of the relief requested. The evidence discussed above, with respect to Mr. Roger’s passing and efforts made to identify a representative of the Estate, et cetera, is relevant to the request for an order dispensing with requirements with respect to service of documents.
[19] The evidence before the court is not sufficient to support an order dispensing with the requirements for service of documents.
c) The Grounds in Support of the Application
[20] In each of items 5 and 6 listed as the grounds in support of the application, the applicant cites a statutory provision (including the section number) and provides a brief explanation as to the substance of it. At items 7 and 8, however, the applicant merely cites a Rule or subrule from the Rules. A summary of the substance of the Rule or subrule cited is not provided. It is not sufficient to merely cite a Rule, rule, or subrule. A brief explanation or summary of its substance must also be provided.
[21] For example, citing “Rule 38”, the Rule governing jurisdiction and procedure on an application, is not sufficient. There are 13 subrules within Rule 38; it is covered in 12 pages of Watson & McGowan’s Ontario Civil Practice 2021.[^3] It is not up to the court to guess as to the subrules on which the applicant is relying.
d) Additional Relief is Required
[22] The applicant must consider the relief required because Mr. Roger is deceased. Subrule 9.03 identifies remedies for matters such as a proceeding commenced against a person who died before the proceeding was commenced.
[23] The applicant may also want to consider r. 10.02, which specifically addresses the representation of a deceased person:
Where it appears to a judge that the estate of a deceased person has an interest in a matter in question in the proceeding and there is no executor or administrator of the estate, the judge may order that the proceeding continue in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent the estate for the purposes of the proceeding, and an order in the proceeding binds the estate of the deceased person, subject to rule 10.03, as if the executor or administrator of the estate of that person had been a party to the proceeding.
[24] If the applicant intends to seek relief under either rr. 9.03 or 10.02, then evidence in support of the relief requested is required. That evidence may, in large part, be included in the evidence discussed in previous sections of this endorsement.
Disposition
[25] I am mindful that the monetary amount involved is $6,600 and that the substantive relief sought is not complex. Regardless, I find, based on the issues involved, including because the applicant seeks to proceed on an ex parte basis, that it is proportional and just to require the applicant to address the matters raised in this endorsement.[^4]
[26] The application is adjourned to permit the applicant to file supplementary materials in support of the relief sought. It is open to the applicant to continue this proceeding in writing or to request an oral hearing. The applicant shall identify in the supplementary materials filed whether he intends to proceed in writing or to an oral hearing of the application.
[27] I remain seized of the matter. When filing the additional materials, the applicant shall request that the court’s administrative staff bring the materials to my attention.
Madam Justice Sylvia Corthorn
Released: January 20, 2021
COURT FILE NO.: CV-20-84973
DATE: 2021/01/20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALEXANDER FALLE, Applicant
-and-
WILLIAM ROGER, Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Carine Plamondon, for the Applicant
No one appearing for the Respondent
HEARD: Without notice and in writing
ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: January 20, 2021
[^1]: R.R.O. 1990, Reg. 194 (“the Rules”). Unless otherwise identified, all Rules, rules and subrules referred to in this endorsement are from the Rules. [^2]: The Deed of Land attached as an exhibit to the Ebbs Affidavit identifies that the late Mr. Roger was not the owner of the Property previous to the applicant. [^3]: Derek McKay & Michael Foulds, Watson & McGowan’s Ontario Civil Practice 2021 (Toronto: Thomson Reuters, 2020), at pp. 1023-1035. [^4]: Rules, rr. 1.04(1) and (1.1).