Court File and Parties

COURT FILE NO.: CV-21-00658107-0000 DATE: 20230614 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE TORONTO DOMINION BANK operating as a credit card division as MBNA, Plaintiff – and – ROSE COSTA (a.k.a. ROSARIA F COSTA a.k.a. ROSARIA DE FATIMA COSTA), Defendant

BEFORE: E.M. Morgan J.

COUNSEL: Ryan McConeghy, for the Plaintiff Gurpreet Singh Chandok, for the Defendant

HEARD: June 13, 2023

Motion to Stay Proceedings

[1] The Defendant seeks to stay the proceedings and the judgment of the Court made on December 13, 2012 in favor of the Plaintiff, and to stay the seizure and sale of the Defendant’s property by the Plaintiff pursuant to that judgment.

[2] The Plaintiff brought the action in 2012 to collect a credit card debt. The Defendant filed a Statement of Defense and defended the action. The Plaintiff then moved for and obtained summary judgment on December 13, 2012. That motion was brought on notice to the Defendant and was never appealed. The Defendant was ordered to pay the Plaintiff $46,458.55 plus costs of $2,329.15 and applicable interest.

[3] The Plaintiff registered a Writ of Seizure and Sale on January 16, 2013, which was subsequently renewed on November 30, 2018. In March 2018 and again in April 2019, the Plaintiff advised the Defendant that it would be taking steps to enforce the judgment. The Sheriff’s Office of the City of Toronto mailed out a Notice of Sheriff’s Sale on March 20, 2023, directing the commencement of sale proceedings of the Defendant’s right, title, interest, and equity of redemption in her property.

[4] On March 21, 2023 and April 5, 2023, the Defendant received two letters from the Law Society of Ontario informing her of disciplinary proceedings taken against her former lawyer and the revocation of his license to practice law as a result of professional misconduct. On April 12, 2023, the Defendant retained new counsel, as advised by the Law Society.

[5] Counsel for the Defendant now seeks an adjournment to study the case in order to determine whether there are grounds to set aside the decade-old summary judgment. He advises that the matter will take several months as it is old and the documents have to be collected and reviewed in light of the new information about the Defendant’s former counsel. Defendant’s counsel is of the view that the information about his client’s former lawyer raises a suspicion that the former lawyer’s work may not have been adequate to the task.

[6] Defendant’s counsel also argues that the Plaintiff did nothing to enforce its judgment for several years. He concedes that the execution that the Plaintiff registered was properly renewed and is still valid, but argues that the Plaintiff sat on its rights for a number of years and should now not be able to proceed without at least explaining the delay.

[7] I do not really understand why the review of a straightforward credit card claim brought by a major bank for under $50,000 would take new lawyers several months to review. I also note that the new lawyers have been on board for two months now and still do not seem to have taken any steps toward this review.

[8] Having renewed the execution in a timely way, the Plaintiffs have not lost any of their rights. The cases that the Defendant relies on to argue that the Plaintiffs’ rights have lapsed due to delay are cases in which the Writ of Seizure and Sale had lapsed and was not properly renewed. That is not the case here. Plaintiff’s counsel has preserved of his client’s rights.

[9] I pointed out to Defendant’s counsel at the hearing that just as the Plaintiffs have taken no steps to enforce their judgment, the Defendant has taken no steps to pay it. Defendant’s counsel’s answer is that the Defendant was misled by her former lawyer and so was unaware of her legal position.

[10] In its Notice of Motion, Defendant’s counsel states:

The Defendant agrees to settle the matter going forward mutually and amicably, having new solicitors on the file. In the Interest of Justice and to protect her interests, some more time is required to review the file having a decade old pending litigation. On behalf of Costa, one request of settlement was also put forward to the opposite party.

[11] Separate from the general policy of not letting the court know that a party has made a settlement offer, there is nothing in the Defendant’s position to indicate a real reason for an adjournment. If it turns out that the summary judgment should have been defended differently than it was, the Defendant’s remedy is against her former lawyer, not the Plaintiff. The judgment has been outstanding against the Defendant for ten years; there is no reason for the Plaintiff to have to wait for her new lawyers to review the case she lost in 2013.

[12] I see no grounds for an adjournment, nor do I see any grounds on which to set aside, vary, or stay the judgment. Further, I see no reason that the Seizure and Sale of Property should not proceed on its course. I understand that there is an auction for the Defendant’s property taking place this week, organized by the sheriff. That auction can proceed in the usual way.

[13] It seems to me that if the Defendant has any recourse for losses she may have incurred, the address for that recourse may lie with her former solicitors, not with the Plaintiff.

[14] The Defendant’s motion is dismissed.

[15] The Plaintiff seeks costs of the motion in the total amount of $10,805.63, while the Defendant has submitted a Costs Outline in which he shows that he incurred costs of $5,018.54.

[16] Costs are always discretionary under section 131 of the Courts of Justice Act. Rule 57.01(1)(0.a) of the Rules of Civil Procedure indicates that in exercising that discretion I should take into account the principle of indemnity for the successful party. Rule 57.01(1)(0.b), on the other hand, indicates that I should take into account the reasonable expectations of the unsuccessful party. Given these two criteria and the fact while both sides have modest cost requests, one is double the other, I will use my discretion to fashion a mid-way point.

[17] Using round numbers for convenience, the Defendant shall pay the Plaintiff costs of the motion in the all-inclusive amount of $7,500.

Date: June 14, 2023 Morgan J.