Court File and Parties

COURT FILE NO.: CV-22-2066 DATE: 2023-04-05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Haventree Bank, Plaintiff AND: Jennifer Leigh Lording, Defendant

BEFORE: Kurz J.

COUNSEL: Eva Lake, for the Plaintiff

HEARD: In Chambers

Endorsement

[1] The Plaintiff Haventree Bank (the “Bank”) moves without notice and in writing for a writ of possession following a judgment for possession granted on December 14, 2022.

[2] This is the second time that the Bank moves without notice for the same relief. On the first occasion, I dismissed the motion without prejudice to the right of the Bank to bring it again: 2023 ONSC 1077. I did so because of what I described as the flimsy evidence relied upon by the Bank. I wrote at para. 33 of my decision:

Here, I am being asked to make an order for possession that will effectively evict a person (or persons) from their home based on improper materials. If the court is going to make such an order, it should not be too much to ask of counsel and the financial institution they represent that they provide the court will proper materials to substantiate their request.

[3] In this motion, the Bank has attempted to respond to the concerns that I raised in my previous endorsement without referring to it. In other words, the Bank withheld the fact that I previously found its materials to be deficient and dismissed a near identical motion. Had this motion not serendipitously ended up before me and had I not recognized the name of the case, there is a good chance that the judge reading this motion would have been unaware of my concerns, as well as the facts cited below. That judge would not likely be in a position to enter into the considerations set out below.

[4] There is both a common law duty and a duty under Rule 39.01(6) of the Rules of Civil Procedure to make “full and fair disclosure of all materials facts” in a motion made without notice. The “failure to do so is in itself sufficient ground for setting aside any order obtained on the motion…”.

[5] In Misir v. Misir, 2017 ONCA 675 the Court of Appeal for Ontario was explicit about the application of Rule 39.01(6). It stated at para. 17:

17 A party who seeks relief from the court in proceedings without notice is obliged to make full and fair disclosure of all material facts. This is a common law rule that is enshrined in rule 39.01(6). See also Sangster v. Sangster, [2003] O.J. No. 69 (C.A.), at para. 7. It is unnecessary to find that the court was deliberately misled before a court will set aside such an order. The basis of the rule is fairness. As the rule confirms, the failure to make such disclosure is a reason, in itself, to set aside the order made: Mariani v. Mariani, [2010] O.J. No. 1464 (S.C.); Balanyk v. Greater Niagara General Hospital, [1997] O.J. No. 4867 (C.A.).

[6] The leading case dealing with counsel's duty of candour in ex parte matters is the Supreme Court of Canada's decision in Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3. As Arbour J, wrote for the Court at para. 27:

27 In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld: Royal Bank, supra, at para. 11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See, for example, the Alberta Code of Professional Conduct, c. 10, r. 8

[Emphasis added]

[7] In Fox v. Fox, 2014 ONSC 1135 (Div. Ct.), at paras. 11-13, the Divisional Court clarified that the Rule 39.01(6) term, "all material facts" in this context should be interpreted to mean all facts known to the moving party that "might reasonably affect the outcome of the motion". Writing for the Court, Matlow J. explained:

11 The reason for requiring such disclosure is based on the recognition that the judicial officer hearing a motion has only the moving party or their counsel before him. There is usually no opponent present who can file opposing evidence and make opposing submissions. Accordingly, there is a heavy burden on a moving party to tender evidence that he might prefer not to tender so the judicial officer can obtain a reasonably balanced view of those facts that might reasonably affect the outcome of the motion.

12 The burden that rests on the moving party is not to make full and fair disclosure of every fact relevant to the motion. That would be an undue burden that would require the moving party to disclose an unnecessarily large volume of facts of likely little to no probative value. The obligation to make disclosure of "all material facts" should be interpreted to mean only "all facts that might reasonably affect the outcome of the motion".

13 If the judicial officer hearing a motion is deprived of an opportunity to know about all of the material facts known to the moving party because the moving party fails to comply with rule 39.01 (6), the same rule creates a consequence for that moving party. It provides that his failure to comply, in itself, is sufficient ground for setting aside any order made on the motion. "In itself", in this context means that the other party does not necessarily have to establish anything more than the moving party's failure to comply.

(see also: B.K. v. York Region Standard Condominium Corp. No. 1253, 2019 ONSC 4552 at para. 37-38)

[8] In Re Sprott Resource Lending Corp., 2013 ONSC 4350 at para. 11, D.M. Brown J. echoed those comments, writing:

Judges learn from experience that most stories have two sides to them, thus the great reluctance of judges to deal with requests for orders on an ex parte basis. Parties and their counsel can never lose sight of the obligation to make the fullest and most frank disclosure on ex parte applications or motions. Such applications mark a radical departure from the adversarial approach to truth-finding upon which our common law system is built and an exception to the general transparency and openness of our courts when they make orders which affect other parties.

The Application of the Duty of Candour in this Case

[9] Here, the Bank withheld the material fact of my earlier dismissal of a near identical motion as well as the reasons for my doing so. Since I was not seized of this matter, it means that any judge who would be called upon the read this motion other than myself would likely be unaware of my earlier concerns with the Bank’s evidence. To the extent that this motion attempts to resolve those evidentiary concerns, it was incumbent on counsel to cite my earlier decision and set out how the new materials resolve my concerns. I can only assume that the Bank and its counsel chose not to do so. That is unacceptable practice in a motion without notice, whatever the merits of the motion.

[10] I add, as set out below, that there are unexplained material discrepancies between the facts of the two motions. They raise serious concerns regarding the credibility of the evidence offered by the Bank in support of this motion.

Merits of the Motion

[11] I have reviewed the evidence that have been filed in this motion and find that in one material aspect, they contradict the evidence in the previous iteration of this motion. In both motions, the deponent was the same clerk who works at the Bank’s law firm and has no personal knowledge of the matters deposed to. In her affidavit of January 19, 2023, the law clerk swore that on January 4, 2023 an individual named Jason Knight attended at the subject premises to perform an occupancy check. Mr. Knight allegedly spoke to the Defendant. The purported occupancy report of Mr. Knight is unsigned but attached to the deponent’s affidavit.

[12] In the motion now before me, the clerk swears in her affidavit of March 21, 2023 that the inspector who spoke to the Defendant was named Roxanne Medeiros. She makes no reference to Mr. Knight. The allegation is that it was Ms. Medeiros who inspected and spoke to the Defendant on January 4, 2023. In fact, Ms. Medeiros swore her own affidavit confirming her attendance and conversation with the Defendant.

[13] Since the second motion makes no mention of the first, there is no attempt to reconcile the two opposing narratives provided to me. I do not know which to believe and why they differ. In light of my concerns set out above, I am not willing to accept the second set of materials on faith.

[14] I add that if I had not been aware of the first motion, I would not have compared the two sets of affidavits. I would then have been unaware of the discrepancies between the evidence and narratives in the two motions. That is another consequence of the failure to meet the obligation set out in Rule 39.01(6).

[15] While tempted to dismiss this motion, instead I adjourn it to be heard in person before me, on notice to the Defendant, on a date to be set with the court.

[16] Both this endorsement and my previous one, as well as the motion record in this motion shall be personally served on the Defendant, along with notice of the date of the return of this motion.

“ Marvin Kurz J.” Electronic Signature of Justice Marvin Kurz Date: April 5, 2023