OSHAWA COURT FILE NO.: CV-21-1164 DATE: 20231011

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Augustine D’Souza and Cedric D’Souza, Plaintiffs - and- Valeria Dawn Dye, Defendant

BEFORE: The Hon. Madam Justice A.A. Casullo

COUNSEL: Augustine D’Souza, Self-represented No one appearing for Cedric D’Souza Mr. J. Cook, Ms. S. Ristic, for the Defendant

HEARD: September 29, 2023

Endorsement

Overview

[1] The Defendant, Valerie Dye, brings this motion for summary judgment dismissing the action brought by Plaintiffs, Augustine D’Souza and his son, Cedric D’Souza.

[2] Augustine [1] was the only Plaintiff in attendance. When asked where Cedric was, Augustine advised the court that Cedric was not really a party to any of the contracts at issue. This confused me, and I took Augustine to the Trust and Indemnification Agreement (the “Agreement”), appended as Exhibit “A” to the Defendant’s affidavit sworn in support of this motion. On the Agreement’s signature page was Cedric D’Souza’s name, and above it a signature. Augustine said that that was his (Augustine’s) signature, not Cedric’s. When I reviewed Augustine’s affidavit (the “Affidavit”), [2] dated August 15, 2023, I concede that the signatures looked to be the same.

Underlying Action

[3] The Defendant, Valerie Dye, is a barrister and solicitor practicing in Whitby, Ontario.

[4] The Plaintiffs claim damages for, inter alia, breach of contract, breach of fiduciary duty, breach of trust, and negligence as against the Defendant Dye. According to the statement of claim, the Plaintiffs allege that they transferred $86,000 into Dye’s trust account pending finalization of a mortgage transaction. The transaction was in respect of a property located at 1208-65 Oneida Crescent, Richmond Hill, Ontario. Ms. Montaque was purchasing the Property as a bare trustee for the buyer, Mr. Howell.

[5] After the funds were transferred, the Defendant advised the Plaintiffs that she could not assist both sides of the transaction, and suggested the Plaintiffs retain another lawyer, which they did. When the Plaintiffs asked the Defendant to transfer the funds to their new lawyer, they were advised that the Defendant had already released the funds prior to the mortgage being registered. This has resulted in a significant financial loss to the Plaintiffs.

[6] The Plaintiffs allege that despite the Defendant declining to act further for them, she still owed them a continuing duty of care in handling the funds.

[7] The statement of defence alleges that the Defendant was never retained by the Plaintiffs, although the Defendant acknowledges meeting Augustine socially on one occasion before the transactions at issue.

[8] The Defendant agrees that $86,000 was deposited into her trust account, “by Mr. Howell or someone on his behalf.” However, despite my repeated queries as to who actually made the deposit, counsel for the Defendant could not or would not provide an answer.

Test on Summary Judgment

[9] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194, provide that the court shall grant summary judgment if it “is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence” (emphasis added).

[10] Rules 20.04(2.1) and 20.04(2.2) empower the court to weigh evidence, evaluate the credibility of a deponent, and to draw reasonable inferences from the evidence.

[11] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, held as follows:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[12] Once the moving party demonstrates a prima facie right to summary judgment, the evidentiary burden then shifts to the responding party to provide evidence that there exists a genuine issue requiring a trial [r. 20.02(1)(2)].

[13] As the Court of Appeal has held, the responding party to a motion for summary judgment has an obligation to “lead trump or risk losing”: see Corchis v. KPMC Peat Marwick Thorne, [2002] OJ No 1437, at para. 6.

Analysis

[14] The facts surrounding the transaction are hazy and in dispute. There is a bare trustee, Ms. Montaque, buying the Property for Mr. Howell. When the Property was transferred to Ms. Montaque, she entered into a mortgage on the property. Thereafter, Cedric and Ms. Montaque reached an agreement with Mr. Howell, that would allow Cedric to take title to the Property. This was documented in the Agreement referenced above. However, while the Agreement was entered into in July of 2020, it was backdated to July 16, 2019. The Defendant acted as a witness to the Agreement.

[15] There is also a fourth mortgage registered against the Property in the amount of $6,000. It appears the Defendant is the mortgagee.

[16] None of this passes the “smell test.”

[17] Rule 20.02(2) makes it clear that a responding party must file an affidavit or other evidence in response to a summary judgment motion and cannot rely solely on the allegations in their pleadings. While Augustine did not file formal responding material to the summary judgment motion, he did serve an Affidavit seeking an adjournment of the initial August 17, 2023, hearing date. The Affidavit indicates that Augustine is in possession of a void cheque proving he deposited the funds into the Defendant’s trust account. The Affidavit also indicates that Augustine has a copy of the bank transfer from his account to the Defendant’s trust account.

[18] Pursuant to r. 20.04(2.1) I am entitled to draw reasonable inferences from the evidence. Here, the evidence raises more questions than it answers. Who deposited the $86,000 into the Defendant’s trust account? If it was the Plaintiffs, their claims of breach of contract/fiduciary duty/trust, or negligence may have traction.

[19] The ultimate burden of proof rests on the party bringing the motion. In these circumstances, I am unable to come to a fair and just determination on the merits of the motion. I am not satisfied on the evidence that the Defendant has established there is no genuine issue requiring a trial.

[20] I permitted Augustine to make submissions. I acknowledge that whatever Augustine said is not evidence for me to consider in deciding the motion. I have specifically not done so.

[21] I firmly believe that a cautious approach should be exercised when motions for summary judgment are brought against self-represented parties. If successful, such motions could have significant, typically financial, implications.

[22] While I could find no case on this precise principle, I look to the Court of Appeal’s decision in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 DLR (4th) 497 for guidance.

[23] Although Kawartha-Haliburton is concerned with summary judgment in a child protection hearing, what “fairness” equates to in the context of summary judgment motions generally can be culled from the decision. In essence, summary judgment motions are meant to winnow out cases that have no chance of success (see para. 78). Courts should be loath to grant summary judgment on matters that may have merit, but are not adequately presented by self-represented litigants at the summary judgment stage.

[24] The Affidavit served in respect of the adjournment request was not sworn, but it is signed. Augustine has not been cross examined on its contents. The Affidavit states that Augustine has tried without success to retain counsel. It further indicates that he is elderly and not computer literate. This was born out during the hearing, as a friend had to guide Augustine to the Defendant’s documents as they were referenced.

[25] Most importantly, the information concerning the void cheque and bank statement potentially go to the heart of the Plaintiffs’ action against the Defendant. The fact that the information is not contained in a responding motion record is not fatal to the Plaintiffs’ position on this motion for summary judgment. In the best way he could, Augustine has put his best foot forward.

[26] Accordingly, the Defendant’s motion for summary judgment is dismissed, as there is a genuine issue requiring a trial.

[27] There shall be no order for costs.

[28] Given Augustine’s computer challenges, the trial shall be heard in person.

[29] Should the Plaintiffs maintain their self-represented status, they may find useful guidance in the Civil Law Handbook. Out of an abundance of caution, a PDF copy of the Civil Law Handbook will be included in the email releasing the endorsement.

[30] Cedric must attend the trial. While Augustine may act in person pursuant to r. 15.01(3), there is no provision in the rules permitting Augustine to represent Cedric.

[31] Finally, it would be remiss of me not to acknowledge the fair treatment the Plaintiffs have received from Mr. Cook and his associate, Ms. Ristic, and their efforts to guide the Plaintiffs through the summary judgment process.

CASULLO J. Date: October 11, 2023

Footnotes

[1] For ease of reference, I will refer to the Plaintiffs by their first names.

[2] Discussed in further detail below.