BARRIE COURT FILE NO.: CV-20-00001270
DATE: 20210204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ryan Mortgage Income Fund Inc.
Plaintiff
– and –
Muhammad Shamsul Alam and Dilruba Alam
Defendants
Christopher J. Staples, for the Plaintiff
Shahzad F. Siddiqui, for the Defendants
HEARD: January 26, 2021
REASONS FOR JUDGMENT
CAmeron J.
Overview:
[1] This is a motion by the plaintiff for summary judgment. The facts are largely not in dispute. The defendants ultimately admitted they defaulted on the mortgage but dispute the amount owing.
Facts:
[2] The plaintiff moved for summary judgment against the defendants on a mortgage/charge registered against a property known as 341 Elson Street in Markham, Ontario on October 10, 2019. The plaintiff charged the property for a period of one year commencing October 1, 2019 and securing the principal sum of $845,000.00 and interest at the rate of 8.75% per annum. Monthly payments due under the mortgage were $6648.00.
[3] Pursuant to the terms of the mortgage, the defendants agreed to pay all taxes related to the property as and when they became due. The failure of the defendants to comply with this covenant constituted an event of default under the mortgage.
[4] The mortgage is subject to an indemnity payment equal to three full months interest. This indemnity is intended to compensate the plaintiff for the lost opportunity of use of its interest and as a reasonable estimation of the value of administrative time and disbursements expended in dealing with a defaulted mortgage, including contacting and making arrangements with the mortgagors and instructing counsel where enforcement proceedings are commenced.
[5] The mortgage also provides that the defendants agreed to pay certain fees including fees for late or returned payments and a discharge administration fee.
[6] The defendants defaulted in the payment of monthly payments due under the mortgage in March 2020 when that payment was returned NSF. The plaintiff agreed to a three-month payment deferral at the request of the defendants until June 2020. The June payment, however, was also returned NSF. The defendants requested further relief but were denied. The plaintiff did, however, offer to waive the three-month interest charge and to return one month’s payment on the condition that the defendants paid out the mortgage within three months. Unfortunately, the defendants were not able to do this.
[7] As a result of the payment defaults, the plaintiff made demand under the mortgage for the arrears and applicable fees then outstanding on August 27, 2020. Payment of the outstanding amount was not received.
[8] The plaintiff confirmed with the municipality that the property taxes had also fallen into arrears. As of August 28, 2020 those arrears, interest and penalties totalled $8720.41. To avoid the municipality taking action on the arrears, the plaintiff paid the full amount owing on September 18, 2020. This amount was added to the amount owing under the mortgage.
[9] The mortgage matured on October 1, 2020. Therefore, the balance became due in full and was not paid.
[10] On September 1, 2020 the plaintiff caused a notice of sale under the mortgage to be issued and served.
The Position of the Parties:
[11] The plaintiff submits that the total amount owing as of the day this motion was heard, January 26, 2021 is $942,683.78. This includes the outstanding principal and interest to December 21, 2020 including taxes paid of $8740.41 and NSF fees of $750; interest to January 26, 2021; the three-month interest indemnity of $20,174.82; the discharge fee of $175, and property management charges of $56.50.
[12] The plaintiff maintains that the accounting of the amount owing is accurate. The plaintiff admits that there was one double-counting with respect to an NSF fee but that otherwise the amount claimed has been properly calculated. The plaintiff has very reasonably agreed not to pursue the three-month interest charge of $20,174.82 and the NSF charges totalling $750. Once those amounts are deducted from the amount claimed to be accurate by the plaintiff, the total amount sought is $921,758.96.
[13] It is the position of the plaintiff that there is no triable issue and the motion for summary judgment should be granted. It is the position of the plaintiff that as the calculation is computer generated and accurate, there is no need to refer the matter to a Master for a determination of the amount owing under Rule 20.04(3). The plaintiff has provided an affidavit from a representative of the plaintiff that details how the calculation was arrived at. Specifically, the plaintiff has included a print out of a computer generated chart outlining the activity on the file and calculating the final amount owing.
[14] The defendants do not dispute that they have defaulted on the mortgage but take issue with the amount the plaintiff claims is owing. The defendants point to the fact that one NSF charge was double-counted by the plaintiff and to the fact that it appears as though the principal amount has increased over time even though payments were being made. Therefore, it is the position of the defendants that there is a triable issue and this motion should be dismissed. Should I determine that there is no genuine issue for trial, it is the defendants’ position that this matter be referred to a Master for a determination of the amount owing under Rule 20.04(3).
The Law and Analysis:
[15] On a motion for summary judgment, pursuant to Rule 20.04(2) of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, the court must be satisfied that there is no genuine issue requiring a trial and the moving party bears the legal burden of showing that there are no genuine issues for trial. There will be no genuine issue for trial where a judge can reach a fair and just determination on the merits of the motion. A judge can make such a determination where the process allows the judge to make necessary findings of fact; where the process allows the judge to apply the law to the facts; and where the process is a proportionate, more expeditious and less expensive means to achieve a just result. See Hryniak v. Mauldin, 2014 SCC 7, 2014 1 S.C.R. 87, at para. 49.
[16] On a motion for summary judgment under Rule 20.04, a judge must first determine if there is a genuine issue requiring a trial based only on the evidence before the court, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides the judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. See Hryniak, supra. at para. 66.
[17] The respondent to a motion for summary judgment must provide facts and coherent evidence showing that there is a genuine issue for trial.
[18] As became apparent during the hearing, there is no real dispute with respect to the facts of this case other than the amount owing. As such, I find that there is no genuine issue requiring a trial. However, I agree with the defendants that the matter should be referred to a Master for a determination of the amount owing under Rule 20.04(3). There is one demonstrated instance of double-counting and although the calculation is computer-generated, the issue is with the amounts that were inputted, not the resulting calculation based on those amounts.
[19] The motion for summary judgment is allowed in part. The matter shall be referred to a Master under Rule 20.04(3) of the Rules of Civil Procedure for the limited purpose of determining the amount owing by the defendants to the plaintiff.
[20] Given the mixed result in this case, I am declining to award costs.
Justice J. Cameron
Released: February 4, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ryan Mortgage Income Fund Inc.
Plaintiff
– and –
Muhammad Shamsul Alam and Dilruba Alam
Defendants
REASONS FOR JUDGMENT
Justice J. Cameron
Released: February 4, 2021