Court File and Parties

COURT FILE NO.: CV-22-00683452-0000 DATE: 20240112 SUPERIOR COURT OF JUSTICE – ONTARIO (COMMERCIAL LIST)

RE: YURY BOLTYANSKY, SUSANNA YAMPOLSKY, LADISLAV VOJTILA, ELENA KEIMAKH, 12275601 CANADA INC., and WENDY TAN, Plaintiffs AND: JANINA JOSEPH-WALKER, AVENUE DEVELOPMENTS INC., ALPHA FINANCING INC., STEVEN HAZAN, 2380376 ONTARIO LIMITED d.b.a. DOMINION LENDING CENTRES AMBASSADOR MORTGAGE SOLUTIONS, MARK BUSLOVICH, ISHAN DHANAPALA, FIRST FINANCIAL CONSULTING SERVICES (FFCS) LTD., AXESS LAW PROFESSIONAL CORPORATION, and EDOUARD VOSKRESENSKY, Defendants

BEFORE: KIMMEL J.

COUNSEL: Ryan Atkinson and Avi Freeland, for the Plaintiffs (Moving Parties on r. 20 summary judgment motion in Action No. CV-22-00683452-0000) Paul Robson, for the Defendants Janina Joseph-Walker, Avenue Developments Inc. and Alpha Financing Inc. (Responding Parties on both r. 20 and r. 21 motions) Mariam Hanna and Antonios Antoniou, for the Defendants Axess Law Professional Corporation and Edouard Voskresenky (Moving Parties on Rule 21 motion in Action No. CV-22-683420-0000) Michael Piaseczny, for the Defendants 2380376 Ontario Ltd. a/o Ambassador Mortgage Solutions and Steven Hazan James Beesley, for the Defendant Jane Chung, Defendant in Action No. CV-22-683420-0000)

HEARD: October 13, 2023 (With Supplementary Submissions received and heard on November 10, December 5 and December 6-11, 2023)

Endorsement (Plaintiffs’ Rule 20 Summary Judgment Motion)

The Consolidated Proceedings

[1] The January 12, 2023 order of Osborne J. (the “Consolidation Order”) consolidated three proceedings and ordered that they be heard together at the same time, or one immediately after the other, and that they proceed under an agreed common timetable, that included discoveries and other pre-trial steps. The three “Consolidated Proceedings” are:

a. This “Mortgage Action” under Court File No. CV-22-00683452-0000: Boltyansky et al v. Joseph-Walker et al, commenced on June 30, 2022 with effective service on the Joseph-Walker Parties on August 16 and 17, 2022);

b. A “Fraud Action” under Court File No. CV-22-00683420-0000: Joseph-Walker et al v. Smith et al, originally commenced as an application on June 30, 2022; and

c. The “Receivership Application” under Court File No. CV-22-00680291-00CL. [1]

[2] The Consolidation Order was made on the consent or non-opposition of all parties to the Consolidated Proceedings. The procedural timetable appended to that order included this summary judgment motion, which at the time had been served, and a date had been scheduled for it to be heard on January 30, 2023.

[3] In the statement of claim in the Fraud Action the Joseph-Walker Parties expressly plead that these various proceedings have now been consolidated into one large proceeding being case managed on the Commercial List in Toronto, Ontario.

The Loan and the Mortgage

[4] The “Mortgagee Plaintiffs” in this action are six of the lenders under a syndicated loan advanced in October 2020 to Janina Joseph-Walker and her companies, Avenue Developments Inc. and Alpha Financing Inc. (collectively, the “Joseph-Walker Parties”).

[5] The Mortgagee Plaintiffs advanced 29.12% of the loan amount, amounting to a collective principal amount of $585,000.00 out of the total loan amount advanced of $2,010,000 (the “Loan”). There were sixteen other lenders under this syndicated Loan (for a total of twenty-two lenders referred to collectively as the “Mortgagees” or “Lenders” and individually as “Mortgagee” or “Lender”). The Loan was secured by a Mortgage (defined below). The Mortgage went into default in October 2021.

[6] Each of the twenty-two Lenders signed their own lender commitment letter with the Joseph-Walker Parties (“Lender Commitments”) for their specified proportionate share of the total Loan. Each Lender Commitment was entered into upon the same terms that had been offered to the Joseph-Walker Parties by 2380376 Ontario Limited Private Equity Lending (the “Loan Syndicator”).

[7] The total Loan amount was secured by a charge/mortgage registered on title to two properties owned by the Joseph-Walker Parties, located at 9191 Bathurst Street and 9185 Bathurst Street in Richmond Hill, Ontario (the “Bathurst Properties” or the “Mortgaged Properties”), registered as instrument numbers YR3158920 and YR3384865 respectively. The registered charges specified the percentage share of each Mortgagee. The 9191 Bathurst Street mortgage was registered as a second charge (the “Principal Charge”); the 9185 Bathurst Street mortgage was registered as a collateral fifth charge (the “Collateral Charge”). The Principal Charge and Collateral Charge had the same terms and are sometimes collectively referred to as the “Mortgage”.

[8] The stated principal amount of the Mortgage is $2,500,000, however the Mortgagee Plaintiffs and the Joseph-Walker Parties now agree that the total principal amount of the Loan actually advanced and secured by the Mortgage was only $2,010,000. After associated fees and disbursements were paid out of the principal Loan advance, the net Loan proceeds were paid to, and received by, Jane Chung who was the lawyer for the Joseph-Walker Parties, in the total net amount of $1,559,285.77. While questioned by the Joseph-Walker Parties, the reconciliation of how the principal Loan proceeds were distributed and the net amount received has been confirmed by the lawyers on both sides and, in particular, their own lawyer’s trust ledger.

[9] According to the additional terms and conditions of the Lender Commitments, interest is payable at the rate of 18% interest per annum for the first six months and is then increased to 25% per annum thereafter.

The Summary Judgment Motion

[10] The sixteen other Mortgagees are not named as either plaintiffs or defendants in this Mortgage Action. Neither the Statement of Claim nor the Motion Records in respect of the summary judgment motion were served on those other sixteen Mortgagees, although nine of those other Mortgagees are defendants in the Fraud Action and would have been aware of this motion at the time of the Consolidation Order because it had been served and the hearing date was included in the timetable attached to the Consolidation Order.

[11] The Mortgagee Plaintiffs seek summary judgment against the Joseph-Walker Parties for the amounts they claim are owing to them in respect of each of their respective proportionate shares of the total Loan. They seek to enforce their rights under the Mortgage against the Mortgaged Properties (defined below) in respect of the amounts they claim to be owed.

[12] The claims by the Mortgagee Plaintiffs against the other defendants in this Mortgage Action, the “Broker Defendants” (Steven Hazan, 2380376 Ontario Ltd. d.b.a. Dominion Lending Centres Ambassador Mortgage Solutions, Mark Buslovich, Ishan Dhanapala, First Financial Consulting Services Ltd., a.k.a. FFCS) and the “Lawyer Defendants” (Axess Law Professional Corporation and Edouard Voskresensky, who were the lawyers who acted for the Mortgagees), are for misrepresentation, breach of contract, negligence and other breaches of duty having to do primarily with the priority and validity of the Mortgage security for the Loan. Those claims are said to be unrelated to the claims by the Mortgagee Plaintiffs against the Joseph-Walker Parties, except insofar as the extent of damages to be claimed against the Broker and Lawyer Defendants will be determined by any deficiency in the Mortgagee Plaintiffs’ recoveries from the Joseph-Walker Parties. [2]

[13] Summary judgment is not sought in respect of the claims against the Broker and Lawyer Defendants in this Mortgage Action. It was noted in the December 7, 2022 endorsement of Conway J., and has been subsequently reconfirmed, that the other Broker Defendants and Lawyer Defendants to this Mortgage Action do not oppose the summary judgment motion as long as no findings are made against them. The Mortgagee Plaintiffs are not asking the court to make any findings against any other defendant aside from the Joseph-Walker Parties, nor is it necessary for the court to do so to decide this motion.

[14] The Joseph-Walker Parties have asserted in the Fraud Action their own claims against the Broker Defendants and the Lawyer Defendants named in this Mortgage Action and others: The Joseph-Walker Parties have asserted claims in the Fraud Action against their own lawyer, the Mortgagee Plaintiffs, nine of the other Mortgagees and various other mortgagees under other mortgages also registered on title to the Bathurst Properties.

[15] The issues have evolved and the process to get to an adjudication of the Summary Judgment Motion has been frustrating for the parties at times. A lot of time and effort has been devoted by the parties to bring the issues before the court. Many accommodations were afforded by the court to the Joseph-Walker Parties because they were self-represented.

[16] Despite the multitude of sequential and creative arguments raised by the Joseph-Walker Parties in an effort to avoid summary judgment being granted against them in the Mortgage Action, ultimately they cannot delay any longer the basic and irrefutable fact that they were loaned money by the Mortgagee Plaintiffs, they signed the Commitment Letters, they granted the Mortgage, they defaulted on the Loan and there is no evidentiary foundation for the suggestion that the Mortgagee Plaintiffs were involved in or benefited from the alleged fraud. The Mortgagee Plaintiffs are seeking to enforce irrefutable contractual rights.

[17] After multiple attendances and opportunities, and having considered the issues raised as the situation evolved, including issues raised after the hearing of the Summary Judgment Motion, for the reasons that follow, I find that summary judgment is the proportionate, most expeditious and least expensive way to address the claims and defences as between the Mortgagee Plaintiffs and the Joseph-Walker Parties. However, to achieve this outcome,

a. Steps must first be taken by the Mortgagee Plaintiffs to add as necessary parties the remaining seven Mortgagees who chose not to participate as plaintiffs in the Mortgage Action and have not been named as parties in any of the Consolidated Proceedings (the "Seven Non-Party Mortgagees"). This must be done so that they will be bound by the requested order for possession and the granting of a writ of possession to the Mortgagee Plaintiffs, unless they raise grounds for opposing that relief being granted.

b. The Mortgagee Plaintiffs will need to address the court's concern that the allegations against them in the Fraud Action that mirror exactly the defences raised in this Mortgage Action cannot continue if summary judgment is granted in the Mortgage Action in their favour. The approach that has been taken is consistent with the dismissal of all of the fraud claims against the Mortgagee Plaintiffs, wherever pleaded. The Summary Judgment Motion was brought before the Mortgagee Plaintiffs were added as defendants to the Fraud Action. However, the state of the pleadings has evolved and needs to further evolve. The court considers these claims to have been adjudicated and disposed of but the pleadings need to be regularized.

I am directing that a case conference be convened for the court to consider how the Mortgagee Plaintiffs intend to address these concerns, at or after which the court will provide further directions.

[18] If these concerns are addressed, there remain other procedural issues that will also need to be addressed in the Consolidated Proceedings so that they can be better streamlined and a process put in place to allow them to move forward expeditiously. The Joseph-Walker Parties are entitled to prosecute the alleged fraud against any party that continues to be implicated and the focus of what remains to be adjudicated in these Consolidated Proceedings needs to be on the just adjudication of those remaining claims. Further procedural directions may also be provided by the court with this objective in mind at the next case conference. For that reason, all parties to the Consolidated Proceedings should be on notice of the case conference and provided with the necessary information so that they can participate.

The Loan and Mortgage Defaults and Enforcement Steps

[19] The Mortgage matured on December 1, 2021. Nothing has been paid under the Mortgage since the pre-paid monthly interest amounts and amounts remitted by post-dated cheques were exhausted in September 2021.

[20] Prior to issuing their statement of claim in this Mortgage Action, the Mortgagee Plaintiffs delivered Notices of Sale dated March 4, 2022 under each of the Mortgages (the “Notices of Sale”) seeking payment of the then total claimed outstanding amount of $2,971,448.63 (inclusive of the total principal Loan amount, all accrued and unpaid interest and applicable fees and charges). These Notices of Sale were delivered to all of the other Mortgagees, the Joseph-Walker Parties and all prior registered encumbrancers on title to the Bathurst Properties.

[21] The Mortgagee Plaintiffs originally sought in their Statement of Claim issued on June 30, 2022 and in their Notice of Motion for summary judgment dated November 7, 2022, among other things:

a. Payment in the sum of $3,203,502.79 (the total amount then claimed to be) due under the Mortgage, together with interest at the rate of 25.00% per annum from June 30, 2022, to the date of payment or Judgment in accordance with the Mortgage;

b. Vacant possession of the Mortgaged Properties;

c. A Writ of possession of the Mortgaged Properties; and

d. Payment of any and all additional expenses, charges, costs incurred or to be incurred by the Plaintiffs with respect to the recovery of possession of the Mortgaged Properties and the amounts owing under the Mortgage.

[22] The Mortgagee Plaintiffs subsequently provided an updated order in November 2022 as part of a supplementary motion record in support of this summary judgment motion, in which they reduced the amount of the payment they were seeking to the sum of $779,836.30 as of November 23, 2022, representing their collective proportionate shares of the Loan with outstanding interest accrued to that date, plus interest continuing to accrue at the rate of 25% per annum. Their updated order still seeks vacant possession and a writ of possession in respect of each of the Mortgaged Properties and ancillary relief to give effect to those orders.

[23] The Mortgagee Plaintiffs acknowledge that they learned after issuing the Notices of Sale and Statement of Claim that the total principal Loan advance was only $2,010,000 (not the principal amount specified in the Loan commitments of $2,500,000). The evidence filed on this motion supports the contention of the Mortgagee Plaintiffs that their lawyer sent to Jane Chung, and Ms. Chung received, $1,559,285.77, which was the net amount of the Loan advance after associated fees and disbursements were paid in accordance with the terms of the Lender Commitments and directions provided regarding the payment of funds.

[24] The total amount claimed to be owing to the Mortgagee Plaintiffs as of the date of this motion (October 13, 2023) was $931,932.95, or in the alternative $850,369.52 (if the interest rate on the Mortgage is determined to be 18% per annum rather than the claimed higher rate of 25%). This was calculated based on the principal amount of $585,000 (representing the total that they together advanced in respect of their proportionate shares of the Loan) plus interest for 742 days, specified power of sale fees of $1,500, mortgage renewal fees of $5,850 and legal fees of $48,285.

[25] The Joseph-Walker Parties do not dispute that they received funds from the Mortgagee Plaintiffs, that the Mortgage was registered on title to the Bathurst Properties to secure the Loan advances, that the Mortgage went into default in October 2021 and that it has not been put back into good standing for more than two (2) years. The Joseph-Walker Parties have not attempted to negotiate a payment plan or sell the Mortgaged Properties, and have not demonstrated any plan nor intent to pay back the Loan pending the determination of their Fraud Action.

The Fraud Action and Allegations of Fraud

[26] The Fraud Action started as an application on June 30, 2022, the same day that the Mortgage Action was commenced. There is no evidence that the timing of the commencement of these two proceedings was anything other than coincidental. The Mortgage was not one of the mortgages specifically alleged to have been implicated in the fraud in the application, although for other reasons, nine of the twenty-two Mortgagees had been named as respondents. The application commenced by the Joseph-Walker Defendants was ordered to be converted to an action by the Consolidation Order.

[27] When the reconstituted Statement of Claim in the Fraud Action was finalized and served by email by the Joseph-Walker Parties (then self-represented) on or about February 13, 2023, a number of new defendants were added to it who had not been named as respondents to the application, among them the six Mortgagee Plaintiffs whose summary judgment motion in this Mortgage Action had by then been twice adjourned. It was not until the Statement of Claim was delivered in the Fraud Action and the six Mortgagee Plaintiffs were added that the Mortgage was also alleged to be fraudulent. The Summary Judgment Motion, having been brought earlier, did not seek to dismiss the Fraud Action as against the Mortgagee Plaintiffs.

[28] At this time, nine of the twenty-two Mortgagees plus the six Mortgagee Plaintiffs in the Mortgage Action (for a total of fifteen of the twenty-two Mortgagees) are named as defendants in the Fraud Action. The Broker Defendants, the Lawyer Defendants and Jane Chung (the Joseph-Walker Parties’ former lawyer) are also named as defendants in the Fraud Action. Steven Hazan is not only a Broker Defendant (named in both the Mortgage Action and the Fraud Action) but is also one the other Mortgagees. The Seven Non-Party Mortgagees that are also not named as defendants in the Fraud Action.

[29] The Joseph-Walker Parties generally allege that a fraud was committed by all of the defendants to the Fraud Action in connection with certain loans and mortgages. The allegations do not differentiate between the defendants, but generally assert that:

a. The Joseph-Walker Parties have been the victim of significant fraud perpetrated by the Defendants;

b. As a result of this fraud, the Defendants have, in differing capacities, registered mortgages on the Bathurst Properties, among others, for which the Joseph-Walker Parties received little to no benefit whatsoever;

c. The Defendants now seek to enforce their mortgage(s) to the direct detriment of the Plaintiffs;

d. The Defendants knew or ought to have known about the illegality of their actions;

e. The Defendants have been unjustly enriched at the expense of the Plaintiffs for no juristic reason and are liable to the Plaintiffs for the same; and

f. The Plaintiffs plead that the Defendants all acted jointly in colluding against the Plaintiffs in a conspiracy to defraud the Plaintiffs.

[30] As a result of this alleged fraud, the Joseph-Walker Parties seek, among other things, a declaration that all charges and encumbrances registered in favour of the defendants in relation to the Bathurst Properties with the Land Registry Office are void and an order that they otherwise be deleted from the title of the Bathurst Properties. They also seek damages for slander of title.

[31] Some particulars of the alleged fraud against the mortgage brokers and lawyers named as defendants in the Fraud Action are pleaded, but there are no particulars pleaded in respect of the alleged fraud committed by the Mortgagee Plaintiffs or other mortgagee defendants (in their capacity as mortgagee).

[32] The essential allegations of the Fraud Action were also asserted by the Joseph-Walker Parties in their defence to this Mortgage Action, delivered on September 29, 2022. Aside from disputing the stepped up interest rate of 25% being charged, their primary defences are that:

a. The Mortgagee Plaintiffs do not comprise all of the mortgagees and are not the “rightful claimants” under the Mortgages (para. 3 defence); and

b. The Joseph-Walker Parties were the victims of a fraud perpetuated primarily by Ishan Dhanapala and his team of mortgage brokers and lawyers (herein “Dhanapala Group”) and Jane Chung, resulting in the fraudulent registration of multiple mortgages (including the Mortgage that is the subject of Mortgage Action) (paras. 4-7 defence); and

c. The Mortgagee Plaintiffs should be looking to the Dhanapala Group and/or Steve Hazan for repayment of their debt (paras. 9 and 10 defence).

[33] At various times, both the Mortgagee Plaintiffs and the Joseph-Walker Parties submitted to the court in the context of this summary judgment motion that the Fraud Action is in effect and should be treated as a counterclaim asserted by the Joseph-Walker Parties in the Mortgage Action and, vice versa, the Mortgage Action is in effect, and should be treated as, a counterclaim in the Fraud Action. The evidentiary foundation for and "merits" of the alleged fraud as against the Mortgagee Plaintiffs is the same.

[34] The fact that advances were made under the Loan by the Mortgagee Plaintiffs is not contested. The Joseph-Walker Parties complain about the net Mortgage proceeds that they ultimately received from this Loan, and complain about various fees, disbursements and other charges that they say the Mortgage proceeds were used to satisfy. The evidence establishes that these were specified in the Lender Commitments and/or were the subject of directions provided by counsel for the Joseph-Walker Parties to counsel for the Mortgagees. Further, it is acknowledged that the interest rates to be charged under the Loan were specified in the Lender Commitments. Thus, there is no serious dispute about the Loan amount that requires a trial.

[35] The Joseph-Walker Parties make various speculative assertions that the Mortgagee Plaintiffs were aware of an alleged fraudulent scheme masterminded by the Broker and Lawyer Defendants. They are suspicious that monies flowed in a circle from the Mortgagees through the lawyers and then back to the Mortgagees as secret fees or commissions. But there is no evidence to support any suggestion that the Mortgagee Plaintiffs have received any funds or other benefits (however characterized) aside from what they were supposed to receive pursuant to the terms of their respective Lender Commitments based on their respective proportionate shares of the Mortgage funds advanced.

[36] In an effort to disprove this speculative assertion, additional evidence of consisting of trust and banking records for the period September 27 and October 13, 2023 was provided by both Ms. Chung (the lawyer for the Joseph-Walker Parties) and the Mortgagee Plaintiffs themselves to demonstrate the flow of funds through the various bank accounts before and after the Loan was advanced.

[37] Further, the available evidence contradicts this assertion: The Mortgagee Plaintiffs say that they have not received the consideration that was agreed to under the Lender Commitments or the Mortgage, let alone anything more than that.

[38] The only evidence of the alleged fraud that the Joseph-Walker Parties have been able to identify from all of the productions of the parties in the Consolidated Proceedings to date is found in an email dated February 7, 2022 from Mr. Hazan (the “February 7 Email”). [3] In this email (written by Mr. Hazan to Alon Hollander, and copied to others including Ms. Joseph-Walker), Mr. Hazan states:

“It appears that we have found a fraudulent document created by Ishan Dhanapala [involving] a 200k mortgage … [arranged with Jane Chung] … in the name of my company (2380376 Ontario Limited) without my consent, and then a letter of direction to Axess Law to pay this 200k to Jane Chung directly on the closing of the second mortgage that Ishan completed without My consent.”

Mr. Hazan goes on in this email to state that he will be joining Ms. Joseph-Walker in her fraud report to the police against Mr. Dhanapala for creating documents and signing commitment letters, as he was unauthorized to do so.

[39] The Joseph-Walker Parties now contend that this February 7 Email is evidence that is material to the determination of this Summary Judgment Motion and submit that it is evidence that a fraud has been perpetrated. They attempt to link it to the Mortgagee Plaintiffs by the following submissions:

a. Based on a lack of discovery evidence from the Broker Defendants, there is a gap in the evidentiary record regarding exactly what the plaintiffs may or may not have known about the fraud perpetrated against the Joseph-Walker Defendants.

b. The Joseph-Walker Defendants seek to make submissions that the [Mortgagee Plaintiffs] were involved in similar fraudulent mortgage transactions involving borrowers other than the Joseph-Walker Defendants in an effort to demonstrate a pattern of similar behaviour by the same characters.

[40] There is no direct or indirect evidence before the court indicating any knowledge on the part of the Mortgagee Plaintiffs regarding the alleged fraud committed by the mortgage brokers and lawyers. At the direction of the court, Mr. Hazan has sworn an affidavit in which he confirms that he is not aware of any involvement that the Mortgagee Plaintiffs or the Lawyer (Axess Law) Defendants had in the fraud that he was referring to in this February 7 Email.

[41] Mr. Hazan’s affidavit sworn December 7, 2023 states as follows in response to the court’s questions that he was directed to answer:

a. Through inadvertence, the February 7 Email had not been originally included in his affidavit of documents. However, it was located after conducting a further review of corporate and personal records following the December 5, 2023 case conference and the court’s directions. He was not attempting to hide this email; in fact, he was the one that sent it to Ms. Joseph-Walker and others on February 7, 2022.

b. The relevant documents/records referred to in the February 7, 2022 email had been included in his affidavit of documents (including the $2,010,000 commitment letter for the second mortgage on the Bathurst Properties that is the subject of this Mortgage Action and the $200,000 commitment letter for a third mortgage that is alleged by Mr. Hazan to have been fraudulently signed by Mr. Dhanapala without Mr. Hazan’s authorization).

c. He has no knowledge or information that the Axess law Defendants or the Mortgagee Plaintiffs had any involvement in or knowledge of the fraud that he referred to in the February 7 Email.

Procedural History

[42] It has taken the better part of a year for the Summary Judgment Motion to be heard since its first return date in November of 2022. There was a period of legitimate delay at the outset to allow a reasonable opportunity for the then self-represented Joseph-Walker Parties to respond. However, there have been a series of delays since the spring of 2023 to accommodate the Joseph-Walker Parties, including delays and requests to re-visit earlier timetabling and scheduling orders both before and after the summary judgment motion was finally heard on October 13, 2023. In the course of all of this, the parties to the Consolidated Proceedings did eventually exchange their productions and there has been some preliminary exchange of evidence through affidavits so the time has not been entirely wasted.

[43] The evolution of the Summary Judgment Motion and the various other procedural steps that it has persisted through provides some important context and background.

November 24, 2022 Appearance

[44] This summary judgment motion was originally returnable on November 24, 2022. Penny J. heard the Mortgagee Plaintiffs’ motion for summary judgment that day, but declined to rule on the motion to give the Joseph-Walker Parties, then self-represented, more time to submit their affidavit material and conduct examinations. At a December 7, 2022 case conference they were ordered by Conway J. to deliver their responding materials by January 10, 2023, and a further hearing date was scheduled for January 30, 2023 at which the court was to determine whether the motion would proceed or be further delayed (dependent, in part, upon whether responding materials were delivered).

January 30, 2023 Appearance

[45] The Joseph-Walker Parties delivered their responding materials late, on January 25, 2023. On January 30, 2023, the summary judgment motion was adjourned and a further case conference was scheduled for March 6, 2023. The parties were to make submissions at the March 6 case conference about whether, in light of the fraud allegations in the responding materials, it would be appropriate to proceed with a summary judgment motion before discoveries or other opportunities had been afforded to the Joseph-Walker Parties to try to substantiate their assertions and speculation about the involvement of the Mortgagee Plaintiffs in the alleged fraud.

[46] At this case conference, the court raised a concern about partial summary judgment and emphasized that this would need to be addressed, at least on a preliminary basis at the next case conference, as part of the court’s gatekeeping function with respect to summary judgment motions.

March 6, 2023 Appearance

[47] At the March 6 Case Conference, after hearing the submissions of the parties, the court ordered that the parties complete the documentary discoveries (that had been timetabled by Osborne J. by the earlier endorsement in the Consolidated Proceedings to be completed by June 30, 2023) and return for a case conference on July 28, 2023 (the “July 28 Case Conference”) to determine whether the summary judgment motion should proceed. Noting that the parties had been attempting to schedule the summary judgment motion for some time, a hearing date was provisionally scheduled for September 27, 2023.

July 28, 2023 Appearance

[48] The Mortgagee Plaintiffs delivered their affidavits of documents by June 30, 2023. Some, but not all, of the other parties to the Consolidated Proceedings did so as well. The Joseph-Walker Parties did not deliver theirs on time. Rather, on the morning of the July 28 Case Conference, they delivered an unsworn affidavit of documents. It did not include any documents that implicated the Mortgagee Plaintiffs in the alleged fraud, nor anything to contradict the claims that the Mortgagee Plaintiffs had advanced that they are entitled to be repaid their proportionate shares of the total Loan, plus contractual interest and prescribed fees associated with the Joseph-Walker Parties’ defaults under the Mortgage.

[49] At the July 28 Case Conference, the court gave procedural directions that afforded the Joseph-Walker Parties the opportunity to conduct examinations in respect of the summary judgment motion until August 29, 2023. That deadline passed without them making a request to conduct any examinations.

September 27, 2023 Appearance

[50] On September 27, 2023 newly appointed counsel for the Joseph-Walker Parties attempted to argue that the summary motion had been deemed withdrawn under r. 37.10.1(4) because a civil motion confirmation form had not been delivered. This argument was not accepted. The Consolidated Proceedings had all been transferred to the Commercial List following the Consolidation Order. Under the Consolidated Commercial List Practice Direction (s. 36), once scheduled, Commercial List matters presumptively proceed unless an adjournment is requested (which must be in special circumstances for a material reason). Motion confirmation forms are not required nor used.

[51] Nonetheless, by an endorsement on September 27, 2023 (the “September 27 Endorsement”), at the request of newly retained counsel for the Joseph-Walker Parties, the court reluctantly granted a further adjournment of the summary judgment motion to October 13, 2023. This adjournment was made peremptory to the Joseph-Walker Parties at their counsel’s suggestion, to afford them yet a further opportunity to put their best foot forward and present some evidence or particulars of the alleged fraud against the Mortgagee Plaintiffs and to complete the contemplated pre-hearing steps under the court’s July 28, 2023 endorsement that had not been adhered to by them. The procedural directions provided by the court on September 27, 2023 permitted the Joseph-Walker Parties to deliver further supplementary responding materials, and extended the deadline to conduct examinations (including r. 39.03 examinations) with factums to follow.

[52] The Joseph-Walker Parties also suggested at the September 27, 2023 hearing that the Mortgagee Plaintiffs may have been reimbursed by Jane Chung (the lawyer who received the Loan advances on behalf of the Joseph-Walker Parties) some of the monies they advanced as part of the alleged fraud. Since the motion was being adjourned, and to provide an opportunity to the Joseph-Walker Parties to try to determine whether there was any factual basis for this theory of how the Mortgagee Plaintiffs might be implicated in the alleged fraud, the court suggested that the Joseph-Walker Parties ask Ms. Chung for information about the flow of funds through her trust account(s).

[53] To that end, procedural directions were provided that allowed the Joseph-Walker Parties to request financial documents from their former lawyer Jane Chung. They did not avail themselves of this opportunity to make any requests of Ms. Chung. No further documents or examinations were requested by the Joseph-Walker Parties. However, upon the court's invitation, Ms. Chung did provide to the parties her trust ledger along with redacted copies of her TD Bank Trust account statement (the containing corresponding payment entries. These documents show that the Mortgagee Plaintiffs never received any portion of their Loan advances back from Jane Chung as had been surmised.

[54] The court also suggested (but did not order) that the Mortgagee Plaintiffs consider providing their own bank statements from October to December 2020 if they wished to address the other side of this theory. The Mortgagee Plaintiffs delivered their fourth supplementary motion record on October 4, 2023, which provides both documentary and affidavit evidence, including each of their bank statements from October to December 2020. This further confirms that none of them received any of their investment back after their respective share of Loan advances had been paid to counsel, and that the net amount of $1,559,285.77 had been paid to Jane Chung on October 22, 2020.

[55] The Joseph-Walker Parties did deliver a supplementary responding motion record on October 2, 2023 (the “Supplementary Responding Motion Record”) containing an October 2, 2023 affidavit of Ms. Joseph-Walker appending various documents, including the February 7 Email (at Exhibit U).

October 13, 2023 Appearance

[56] Despite having suggested that the court make the September 27, 2023 adjournment peremptory to the Joseph-Walker Parties, their counsel requested yet a further adjournment when the matter returned for a hearing on October 13, 2023. The court heard submissions on the adjournment request and reserved its decision. The parties were advised that the decision on this fourth adjournment request would be made in conjunction with the decision on the summary judgment motion, which then proceeded. The court heard the parties’ submissions on the summary judgment (and r. 21 motion in the companion action [4]) and took both decisions under reserve.

October 24, 2023 Appearance

[57] Following the hearing, an urgent case conference was scheduled on October 24, 2023 at the request of counsel for the Joseph-Walker Parties, at which they asked to be given the opportunity to make further submissions in respect of their Supplementary Responding Motion Record, which their lawyer had not seen or adverted to at the time the summary judgment motion was argued on October 13, 2023.

November 10, 2023 Appearance

[58] With leave of the court, a notice of motion was served and the parties filed written Aide Memoires about the evidence contained in the Supplementary Responding Motion Record. A further case conference that was convened on November 10, 2023 to “… hear the positions of each side regarding the proposed further submissions from Mr. Robson, and any anticipated response to those submissions and/or position of the mortgagee defendants in response to this proposed motion [for leave to make further submissions].” The further submissions were focused on the February 7 Email (Exhibit U).

[59] As part of the court’s inherent jurisdiction to control its process and to ensure the fairness of the conduct of proceedings, as well as to ensure their efficiency, the court determined that it was appropriate to consider both the written and oral submissions provided by both sides in respect of Exhibit U to the Supplementary Responding Motion Record (the February 7 Email) in the determination of the summary judgment motion that was at that time under reserve.

[60] Counsel for the Joseph-Walker Parties also asked at the November 10, 2023 case conference for leave of the court to conduct r. 39.03 examinations of two of the parties who are implicated in the fraud referenced in the February 7 Email, namely Mr. Steven Hazan and Mr. Ishan Dhanapala. At the November 10, 2023 appearance, counsel for the Joseph-Walker Parties quite properly acknowledged that no direct evidence implicating the Mortgagee Plaintiffs in the alleged fraud had come to light but suggested that perhaps that might come to light through an examination of Mr. Hazan, the author of the February 7 Email. He also raised concerns about the alleged failure of those defendants (and their companies) to comply with the court’s previous timetable appended to the Consolidation Order of January 12, 2023, which required the delivery of their affidavits of documents in the Consolidated Proceedings by the end of June 2023.

[61] For various reasons detailed in the court’s November 10, 2023 endorsement, this late breaking and after the fact request to conduct witness examinations in support of the Joseph-Walker Parties’ response to the summary judgment motion was denied, after they had allowed two pre-hearing deadlines that had afforded them the opportunity to do so to lapse. However, the court did agree to defer its deliberations on the summary judgment motion pending delivery of any outstanding affidavits of documents from the Broker Defendants, which were ordered to be delivered by November 27, 2023. If anything came to light as a result of further productions made, the parties were invited to identify such and make submissions about this further evidence at the next case conference scheduled for December 5, 2023.

December 5, 2023 Appearance

[62] At the next case conference convened on December 5, 2023, it was confirmed that the affidavits of documents of the Broker Defendants had been received by the Joseph-Walker Parties. [5] They made no submissions about the productions from those parties. According to the Mortgagee Plaintiffs, based on their own review of the productions of the Lawyers and Agents implicated in the fraud, none of the parties’ productions in the Consolidated Proceedings disclose any evidence that the Mortgagee Plaintiffs had knowledge of the alleged fraud or were involved in it. The court accepts their submission that, in the absence of anything having been identified by the Joseph-Walker Parties, it is reasonable to infer that there were no documents in the productions made in the Consolidated Proceedings that implicate the Mortgagee Plaintiffs in any alleged fraud.

[63] The only submission that was made by counsel for the Joseph-Walker Parties about the February 7 Email at the December 5 case conference was to point out that it was not contained in the affidavit of documents produced on behalf of Mr. Hazan on November 27, 2023, despite him having authored it, and to renew the request of the Joseph-Walker Parties (previously denied) to conduct an oral examination of Mr. Hazan specifically about the contents of the February 7 Email. In respect of the latter request, the court re-affirmed its prior ruling that the time for conducting oral examinations in advance of the summary judgment motion had long passed and that it would not be revisited.

[64] That said, counsel for the Joseph-Walker Parties raised the concern that, in the absence of evidence from Mr. Hazan regarding his knowledge and information about the involvement of the Mortgagee Plaintiffs and/or the Axess Law Defendants in the fraud alleged in his February 7 Email, there remains some prospect that they will be implicated by Mr. Hazan when he eventually gives his evidence later in these Consolidated Proceedings. Therefore, directions were given by the court for an affidavit to be provided by Mr. Hazan to address certain points arising out of the February 7 Email (referred to and summarized above).

[65] At the December 5, 2023 case conference, without any advance warning to opposing counsel or an Aide Memoire to alert the court or the other parties, counsel for the Joseph-Walker Parties raised a new legal argument that was not addressed in the previous submissions on the summary judgment motion. They argue that the Mortgage Action is a nullity because the Mortgagee Plaintiffs are only six out of a larger number of Mortgagees under the Mortgage that they are suing on and they have not joined the other Mortgagees as plaintiffs or defendants in this action (and not all of the other Mortgagees are among the parties to the other Consolidated Proceedings, e.g. the Seven Non-Party Mortgagees).

Written Submissions December 6-11, 2023

[66] Over the strenuous objections of the Mortgagee Plaintiffs, the court decided to allow further submissions to be made on this point of law out of a concern that to not do so now could just create further issues down the road and would leave the court in the awkward position of having been told that there is a legal impediment to granting the summary judgment motion without the benefit of full submissions on the point. In accordance with the court’s December 5, 2023 directions, those submissions have now been received and will be considered, among the other issues raised.

The Test for Summary Judgment

[67] Rule 20.04(2) of the Rules of Civil Procedure allows a plaintiff, after the defendant has delivered a statement of defence, to move with supporting affidavit material or other evidence for summary judgment. The court shall grant judgment if it is satisfied that there is no genuine issue requiring a trial with respect to the claim.

[68] There will be no genuine issue requiring a trial when the summary judgment 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”. See Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 49 and 66.

[69] According to the Supreme Court of Canada in Hryniak (at para. 4): “a trial is not required if a motion for summary judgment can achieve a fair and just adjudication ... and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.” The procedure must give the judge confidence that they can find the necessary facts and apply the relevant legal principles so as to resolve the dispute (Hryniak, at paras. 28 and 50).

[70] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based on the evidence before him or her without using the fact-finding powers in subrule 20.04(2.1). If there appears to be a genuine issue requiring a trial, Rule 20.04(2.1) permits the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial: Hryniak, at para. 66. The motion judge is also permitted to use the expanded powers under Rule 20.04(2.2) to direct a procedure such as a mini-trial, rather than a full trial.

[71] The responding party cannot rely on the prospect that additional evidence may be tendered at trial; the respondent must put its best foot forward in response to a motion for summary judgment: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (Ont. S.C.J.), at para. 26, aff’d 2014 ONCA 878, leave to appeal refused, [2015] S.C.C.A. No. 97 (S.C.C.).

[72] The general approach that the court should take in assessing the evidentiary record on a summary judgment motion is described in Badawy v. TD Bank Group, 2022 ONSC 5445, at para. 28, as follows:

The court must take a hard look at the evidence on a motion for summary judgment to determine whether there is a genuine issue requiring a trial, and may freely canvas the facts and law in doing so. No party is entitled to rely on the prospect of additional evidence that may be tendered at trial; all parties have an obligation to put their best foot forward on a summary judgment motion: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9; Chernet v. RBC General Insurance Co., 2017 ONCA 337, [2017] O.J. No. 2094, at para. 12; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, [2014] O.J. No. 851, at para. 26, aff’d 2014 ONCA 878, [2014] O.J. No. 5815, leave to appeal to SCC refused, [2015] SCCA No. 97. As stated in Dawson v. Rexcraft Storage and Warehouse Inc., [1998] O.J. No. 3240 (Ont. C.A.), at para. 17, “[t]he motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.

Issues to be Decided

[73] The following issues require the court’s determination for the court to decide whether to grant the summary judgment motion of the Mortgagee Plaintiffs:

a. Should the summary judgment motion be adjourned?

b. Is this Mortgage Action a nullity because not all of the Mortgagees are party to it and, if so, can this be remedied under r. 2.01 or by a direction that they be added and/or confirm that they have no objection to the relief sought?

c. Is there a genuine issue requiring a trial in respect of the claims by the Mortgagee Plaintiffs and/or in respect of the claims asserted against them by the Joseph-Walker Parties in defence of this Mortgage Action (and in the Fraud Action)?

Analysis

[74] The identified issues will be addressed in turn.

a) Should the Summary Judgment Motion be Adjourned?

[75] The court’s decision on the request made by recently appointed counsel for the Joseph-Walker Parties for a further adjournment of the summary judgment motion was taken under reserve. The parties made their oral submissions on the summary judgment motion at the hearing on October 13, 2023.

[76] The primary ground upon which the Joseph-Walker Parties requested an adjournment of this summary judgment motion on October 13, 2023 was that the Consolidation Order of Osborne J. was not a proper consolidation order because it ordered both consolidation and hearing together of the three Consolidated Proceedings, or one proceeding after the other, rather than selecting one or the other of those options (as r. 6.02 allows for). In essence, the Joseph-Walker Parties argued that the three proceedings have not in fact been consolidated and, thus, the January 30, 2023 order of Osborne J. (that they did not oppose or appeal) is a nullity and there needs to be a complete re-set of everything that has transpired, including pleadings, documentary discovery, and the Summary Judgment Motion.

[77] In support of this submission, counsel for the Joseph-Walker Parties referred to Paterson v. Stewart Title, 2020 ONSC 4609 for the proposition that when making an order under r. 6 the court should pick one or the other of the options of hearing together or consolidation if the parties are not in agreement. There are two fundamental problems with this position as it relates to this case:

a. First, the January 30, 2023 Order of Osborne J. explicitly states that the application (later to become the Fraud Action once converted) “be consolidated with the companion proceedings [the Mortgage Action and the Receivership Application]." The question of consolidation or hearing together was not in dispute when that order was made. It refers to consolidation and that is how the parties and the court have been proceeding from a practical perspective. The Joseph-Walker Parties themselves referred to the order for consolidation in their Statement of Claim in the Fraud Action and in their other submissions.

b. Second, this argument (among other arguments) that the Consolidation Order was a nullity was raised, and rejected, when the Joseph-Walker Parties requested the previous adjournment on September 27, 2023 that was granted peremptory to them (a term that was suggested by them). This was the fourth adjournment of the summary judgment motion requested by them, the requests having been made on: November 27, 2022, January 30, 2023, September 27, 2023 and now October 13, 2023. Peremptory means peremptory. It would make a mockery of that term if the court were adjourn the Summary Judgment Motion for a fourth time after the third adjournment was made peremptory. This gives raised two bars to the argument now: that it offends the peremptory adjournment order and it seeks to re-litigate an argument previously rejected.

[78] The court in Paterson attempted to clear up an often blurred distinction between orders for consolidation and hearing together or one after the other under r. 6. The distinction is often blurred because it is of no practical consequence or significance in many cases where the orders are often worded in a general way on consent or without any opposition. However, the court in Paterson was dealing with a situation in which there was an identified practical concern to the consolidation of the cases because of a particular strategic consequence to consolidation that might alter the natural sequence of the issues to be adjudicated.

[79] The advantages of consolidation, as described in Paterson (at para. 37) can be:

Consolidation provides the ultimate reduction in proceedings. It will compress two actions into one. It will provide for one set of pleadings, one set of discoveries, a common pre-trial and a single trial, with no prospect of inconsistent findings. It avoids the potential for the two actions to proceed at different paces. It will gather all parties with potential liability to the plaintiffs at the same table and allow for a comprehensive ruling that identifies those liable and explains why.

[80] The court in Paterson observed (at paras. 41-42) that while both consolidation and hearing together will meet the goal of avoiding a multiplicity of proceedings and guard against inconsistent findings, an order for hearing together does not implicitly provide for common pre-trial steps and the sharing of evidence and does not guard against the prospect of the cases proceeding out of lock step. The court adopted (at para. 20) the reasoning in in Wood v. Farr Ford Ltd. at paras. 24-26, including that:

Actions ordered tried together largely offer a savings of time and money, and enhanced convenience, at the trial stage. However, consolidation provides those features from an earlier stage in the proceedings, including: one set of pleadings, affidavits of documents, discoveries and pre-trial memoranda and one pre-trial. (Internal citations omitted).

[81] The Consolidation Order achieved many of the advantages recognized in Paterson. It included a common discovery timetable leading to common hearing dates. There have been no impediments identified to the Consolidated Proceedings being tried in accordance with the procedure contemplated by the Consolidation Order. Pleadings may need to be formalized or regularized, including as a result of this Summary Judgment Motion, but that does not invalidate or nullify the order itself. If anything, this will be made easier if the Summary Judgment Motion is granted as it will no longer require the Mortgagee Plaintiffs to be involved. The Consolidation Order is not a nullity.

[82] The Joseph-Walker Parties also argued that the summary judgment motion should be adjourned, or the court’s decision deferred, until at least after the oral examinations for discovery in the Consolidated Proceedings. The oral examinations were originally to be completed under the January 12, 2023 timetable by December 31, 2023 but will now be subject to a delayed deadline still to be set. This too was an argument previously made and rejected. The court instead ordered that the parties to the Consolidated Proceedings complete their documentary discovery (e.g. deliver their affidavits of documents) prior to the summary judgment motion being argued, and that the Joseph-Walker Parties be afforded the opportunity (twice) to conduct any examinations they wished to in advance of the motion (which they elected not to do).

[83] Having now heard and considered the full submissions on the adjournment request, with the benefit of the full submissions on the summary judgment motion, the adjournment request of the Joseph-Walker Parties is denied because:

a. The Consolidation Order did consolidate the three proceedings, was made on consent or without opposition of the parties and is not a nullity;

b. The court must give effect to the peremptory nature of the last adjournment on September 27, 2023. The Joseph-Walker Parties have returned after each adjournment with a new reason for a further adjournment. This latest argument about the Consolidation Order did not arise because of anything new that transpired in between the September 27, 2023 and October 13, 2023 return dates for the motion. Peremptory means peremptory, absent some exceptional circumstances, which there are none.

c. The court had already made accommodations to ensure production from, and an opportunity to examine, other parties said to be implicated in the alleged fraud but not participating in this summary judgment motion.

[84] To grant the adjournment would be procedurally and substantively unfair to the Mortgagee Plaintiffs given how long they have waited to have their summary judgment motion heard, and given all of the accommodations that the court had already afforded to the Joseph-Walker Parties. The issues raised had been previously addressed.

b) Is this Mortgage Action a Nullity?

[85] The Joseph-Walker Parties raised for the first time on December 5, 2023 that this action is a nullity because not all of the Mortgagees are parties to this Mortgage Action. They rely upon Morandan Investments Ltd. v. Spohn et al (1987), 58 O.R. (2d) 621 (Dist. Ct.) that, in turn, relies (at p. 623) on Rayner and McLaren, Falconbridge on Mortgages, 4th ed (1977) at p. 458, for the proposition that:

If there are two or more mortgagees, they must both or all be parties to the action, whether they be joint tenants or tenants in common of the land conveyed by the mortgage and one of the mortgagees may bring a foreclosure action and make his co-mortgagees defendants if they will not join as plaintiffs.

[86] The rationale for this is tied to the contractual nature of a mortgage and the common law rule that all parties to a contract be parties to a civil claim under the contract for breach. In the mortgage context, a claim on the covenant for breach and the associated remedies, for foreclosure and sale and for damages, should bind all the parties to the contract (here, the Mortgage), including all Mortgagees.

[87] This, according to the Joseph-Walker Parties, is primarily a joinder issue, not a notice issue. They maintain that the other Mortgagees (only some of whom are parties to the Fraud Action under the umbrella of the Consolidated Proceedings, [6] but not the Seven Non-Party Mortgagees) are necessary parties whose rights will be affected by the outcome of the Summary Judgment Motion and will remain entitled to advance their own claims in additional litigation.

[88] Rule 5.03(1) requires that “[e]very person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be joined as a party to the proceeding.” Further, r. 5.03(2) provides that [a] plaintiff or applicant who claims relief to which any other person is jointly entitled with the plaintiff or applicant shall join, as a party to the proceeding, each person so entitled.” If a person ought to have been joined as a party or whose presence is necessary and they are not a party, the court may order that they be added. If they do not consent to being added as a plaintiff then they will be made a defendant.

[89] I was directed to no section of the Mortgages Act nor any case cited by the Mortgagee Plaintiffs dealing with this joinder issue directly in the context of the enforcement of a mortgage that could be interpreted to have overridden the requirement for all mortgagees under a mortgage to be parties to this action which seeks payment of outstanding amounts owing under the Loan and Mortgage and possession of the Mortgaged Property in furtherance of an intended sale.

[90] The Mortgagee Plaintiffs point to the Notices of Sale that were served on all twenty-two mortgagees under the Mortgage. That does not address the joinder problem that is raised by Morandan. The Seven Non-Party Mortgagees may have been on notice of a sale but they have not been served with the Statement of Claim or Summary Judgment Motion in the Mortgage Action and, importantly, they would not be bound by any decision of the court in these Consolidated Proceedings to which they are not party and they could not be prevented from later objecting or taking a position inconsistent with the relief sought by this motion. That is a joinder problem.

[91] While the Mortgagee Plaintiffs seek to distinguish Morandan and suggest that this court has allowed investors with fractional interests in syndicated mortgages to advance and collect on a claim without all the mortgagees being parties to the proceeding, most of the cases they cite are not mortgage enforcement cases.

a. One (Ferraro et al v. Neilas et al, 2022 ONSC 2737, 79 E.T.R. (4th) 295) arose in the context of a trust relationship established under a guarantee agreement between the mortgage broker and investors in a syndicated mortgage after the mortgage had already been enforced. That gave rise to an investment loss that was subject matter of the decision.

b. Another (Kotzeff v. Seniorscare Corporation, 2018 ONSC 6173, 81 M.P.L.R. (5th) 353) was not about enforcing a mortgage but rather had to do with the treatment of sale proceeds under a settlement after the fact.

c. In the third case that the Mortgagee Plaintiffs rely upon (Cai v. Hyde Park Residences Inc., 2014 ONSC 835, 23 B.L.R. (5th) 232) the issue of the enforcement of a fractional interest in a mortgage by one mortgagee (based on a direct contractual relationship under a participation agreement) was not contested, and the mortgagor in that case had acknowledged liability.

[92] Morandan applied the general rule of equity, that all parties with interest in the subject matter of a suit are to be made parties to it, to prevent future litigation and to ensure that no injustice is done to parties interested in the subject matter (as articulated in Coulson et al v. Secure Holdings Ltd. et al (1976), 1 C.P.C. 168 (Ont. C.A.), at pp. 172–73). To proceed otherwise and attempt to adjudicate the rights of parties present without the others would be “futile” and potentially prejudicial.

[93] It is submitted by the Mortgagee Plaintiffs that when the Mortgage debt being claimed is particularized in fractional amounts [7] that are distinct from the interests of the other Mortgagees, no injustice is done to any interested parties by collecting on the distinct debt. Under these circumstances all necessary parties are before the court that would enable the court to fully adjudicate the issues in question. Each mortgagee’s percentage interest in the mortgage is clearly stated on the charge itself and similarly evidenced in individual mortgage contracts. They suggest that because of this feature, their collection of their distinct debt will not prejudice any claim made by any of the other creditors nor create a duplication of proceedings since the fractional loans are distinct.

[94] The Mortgagee Plaintiffs view this after-the-fact joinder argument as a “Hail Mary” technicality that should have been patently obvious at the initiation of these proceedings. If that is so, and if the point is a valid one, then that argument cuts both ways: the Mortgagee Plaintiffs could have avoided the problem by naming all of the Mortgagees in the first place.

[95] In the alternative, the Mortgagee Plaintiffs asked that the court exercise its discretion and apply the curative provisions of r. 2.01(1)(a) and, if necessary and in the alternative, to stay the motion, add any parties the court deems appropriate, and complete the hearing in due course to avoid serious prejudice to the innocent Plaintiffs. I consider that to be an appropriate manner of proceeding, in the circumstances.

[96] While technically each Mortgagee had their own Lender Commitment (contract) there were standard terms and a common Mortgage that the Mortgagee Plaintiffs now seek to take enforcement steps under (e.g. for possession and writs of possession in respect of the Bathurst Properties, and to eventually sell them). Once that has occurred, that remedy will no longer be available to any of the other Mortgagees. Thus, I consider that their rights are affected by the order sought on this Summary Judgment Motion and they are necessary parties, as the granting of possession of the Mortgaged Properties cannot be re-litigated at some later time.

[97] However, the failure to join the Seven Non-Party Mortgagees does not render the Mortgage Action (and summary judgment motion in it) a nullity. The do not to be added as defendants [8] to the Mortgage Action and the Mortgagee Plaintiffs are directed to do so, and to follow the further steps that are described in more detail in paragraphs 17 and 18 above.

c) Is Summary Judgment in this Mortgage Action Appropriate?

i. The Fraud Assertions

[98] To answer this question the court must first determine whether there is a genuine issue that requires a trial in respect of the claims by the Mortgagee Plaintiffs or in the defences raised by the Joseph-Walker Parties. If there is, then there is a further inquiry that the court must engage in, having regard to the additional tools available under r. 20.04. If not, then there is no further inquiry needed and the motion should be granted. See Hryniak, at para. 66.

[99] In this case, because of the Consolidation Order and the parties both proceeding on the basis that the allegations against the Plaintiff Mortgagees in the Fraud Action are effectively a counterclaim in the Mortgage Action (and vice versa), the question of whether there is a genuine issue requiring a trial has been considered under the broad umbrella of the Consolidated Proceedings. To be clear as well, this decision is binding in the Consolidated Proceedings as between the Mortgagee Plaintiffs and the Joseph-Walker Parties in both the Mortgage Action and the Fraud Action.

[100] There is no genuine issue for trial with respect to the entitlement of each of the Mortgagee Plaintiffs to be repaid their proportionate fractional share of the Loan advanced and that they are contractually entitled to be repaid under their respective Lender Commitments, together with contractual interest. [9] There is no genuine issue for trial in respect of the claims by the Mortgagee Plaintiffs in the Mortgage Action.

[101] The Mortgagee Plaintiffs have established that they advanced the amounts specified in their respective Lender Commitments and that they have not been paid anything in respect of their Loan advances aside from the interest up to September 2021 that was covered by pre-paid interest and post-dated cheques. The Joseph-Walker Parties are clearly in default of the Loan and Mortgage. The amounts that were deducted from the Loan advances were in accordance with the provisions of the Lender Commitments and directions provided and the interest and fees now claimed are consistent with the terms of the Lender Commitments signed by the Joseph-Walker Parties with the benefit of independent legal advice.

[102] I turn now to whether there is a genuine issue requiring a trial in respect of the defences raised by the Joseph-Walker Parties in the Mortgage Action, which correspond with their claims against the Mortgagee Plaintiffs in the Fraud Action and are effectively a counterclaim in the Mortgage Action within the umbrella of the Consolidated Proceedings.

[103] All of the allegations of fraud against the Mortgagee Plaintiffs are speculative. The Joseph-Walker Parties complain that they are at a disadvantage in that the fraud was a secret conspiracy. However, even with the benefit of documentary discovery and the many opportunities afforded to them to discover some evidence to implicate the Mortgagee Plaintiffs in the fraud, they have not been able to come up with anything that links the Mortgagee Plaintiffs to any fraud or conspiracy. They did not avail themselves of the opportunities that they were afforded to examine whomever they wanted to about this alleged fraud to uncover evidence of any involvement of the Mortgagee Plaintiffs.

[104] While a peripheral point, the Joseph-Walker Parties did not originally include the Mortgagee Plaintiffs in the fraud claims, and only did so when their application was converted to an action pursuant to the Consolidation Order after this Summary Judgment Motion had been brought. That suggests that the allegations of fraud asserted against the Mortgagee Plaintiffs may have been a strategic attempt to avoid summary judgment. The fact that they have not been able to particularize any aspects of the alleged fraud against the Mortgagee Plaintiffs is consistent with this.

[105] The Joseph-Walker Parties must be presumed by this point, more than a year after having been served with the summary judgment motion, to have put their best foot forward in response to this motion and in support of the allegations of fraud against the Mortgagee Plaintiffs (see Badawy, at para. 28 and they have come up with nothing. The fact that there is some evidence of a fraud having been committed by other parties (e.g. Hazan's assertion in the February 7 Email that a fraud was committed by Dhanapala) is not enough.

[106] Bald assertions cannot defeat a motion for summary judgment. The parties must lead evidence that the court can weigh and from which it can draw inferences. They must “lead trump or risk losing”. See Sosnowski, et al v. MacEwen Petroleum Inc. and Bourdeau, 2020 ONSC 2126, at para. 24, citing Combined Air Mechanical Services Inc. et al. v. Flesch et al., 2011 ONCA 764, 108 O.R. (3d) 1, at para. 56; Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851, 113 O.R. (3d) 401, at paras. 50–51.

[107] Allegations of fraud (forgery) that are completely unsupported will not be sufficient to defeat a summary judgment motion. See Byfield v. Toronto-Dominion Bank, 2011 ONSC 4449, at para. 9. The absence of an evidentiary foundation for a genuine issue requiring trial on a conspiracy allegation is similarly fatal. See Vair v. Ramsammy, 2011 ONCA 788, at paras. 6 and 7.

[108] In the meantime, the Mortgagee Plaintiffs have gone to great lengths to disprove unsupported allegations of fraud by providing their own financial and banking information to show, for example, that the funds were advanced to counsel for the Joseph-Walker Parties and were not paid back to them. There is no logical or legal reason to doubt their evidence.

[109] The unsupported allegations of fraud should not prevent the Mortgagee Plaintiffs from collecting on what they are owed or require them to remain in an action against other parties alleged to have committed a fraud on the Joseph-Walker Parties, at continued expense and inconvenience. I am reminded of the observation of the Court of Appeal many years ago (on a motion to strike involving a broad brush claim making allegations to implicate a multitude of directors and officers in a claim that was wholly unparticularized, not unlike this one), in Budd v. Gentra Inc. (1998), 111 OAC 288 (C.A.), at para. 50:

[50] I am left with the uneasy impression that the claim against the directors and officers personally is included in the appellant's statement of claim for purposes other than to ultimately establish their personal liability. If this impression is correct, those claims are properly characterized as an abuse of process. A "shot gun" approach to the naming of defendants in a lawsuit which serves to needlessly add parties to the proceedings must be discouraged. It can only further complicate and prolong what will of necessity be lengthy and complicated litigation.

[110] The Mortgagee Plaintiffs characterize this as a simple debt collection which the Joseph-Walker Parties have managed to delay for more than two years by (i) making unsupported allegations of fraud, (ii) filing last minute materials, (iii) changing lawyers on several occasions, (iv) and seeking repeated indulgences from the court for more time. The Mortgagee Plaintiffs and their lawyers will not be required to attend these proceedings any further once they have obtained judgment for the debt that is owed. Summary judgment will simplify the proceedings, by significantly reducing the number of parties that must participate and the mounting legal costs of the debt collection. It will also refocus the Fraud Action so that it can be pursued.

[111] The Mortgagee Plaintiffs want to avail themselves of their right to try to exercise their mortgage enforcement remedies while there may still be equity in the Bathurst Properties. They are concerned that the Bathurst Properties are highly leveraged by approximately $11,827,500. It may be unlikely that the Mortgagee Plaintiffs, or any of the other mortgagees on the Bathurst Properties, will be able to recover their investments from a sale of the Bathurst Properties. However, their position is that the longer time goes without a sale of those Mortgaged Properties, the more those chances will be diminished.

[112] If they do take possession and sell the Mortgaged Properties, it will be for the benefit of all encumbrances that are ahead of their own and any on par with their own, including the other Mortgagees.

[113] The Joseph-Walker Parties’ defence to the Mortgage Action largely relies upon the conduct of the Lawyer Defendants and Broker Defendants in furtherance of the alleged fraudulent scheme conceived of and implemented by Ishan Dhanapala and his associates, who the Joseph-Walker Parties have sued (in the Fraud Action, specifically referred to in the Statement of Defence) and against whom they have asserted a crossclaim. The claims by the Joseph-Walker Parties against the Lawyer and Broker Defendants and other parties would not be impacted by the granting of summary judgment except insofar as they may crystalize some of the damages claimed by the Joseph-Walker Parties.

[114] In the circumstances where the Joseph-Walker Parties have continuing claims against some of those other Mortgagees (which they do, including Mr. Hazan and some of his relatives), steps can be taken to ensure that those other Mortgagees' share of any sale proceeds are held in trust pending the outcome of the claims by the Joseph-Walker Parties against them. However, the claims and enforcement remedies of the uninvolved Mortgagee Plaintiffs should not be held up over this.

ii. The Effects of the Consolidation Order

[115] Beyond the speculative assertions by which they seek to implicate the Mortgagee Plaintiffs in the alleged fraud against the brokers and lawyers, the Joseph-Walker Parties main argument at the return of the Summary Judgment Motion was that the Mortgage Action was an abuse of process because it was a collateral attack on what their new counsel described as the “Main Action”, namely their Fraud Action. They asserted that the Mortgagee Plaintiffs were seeking by this motion to isolate their dispute without allowing the court to benefit from a fulsome and complete evidentiary record and to “escape liability in the [Fraud Action] by bringing the within [summary judgment] motion.”

[116] Despite the Consolidation Order and its effects, and despite having themselves characterized the allegations in the Fraud Action as a counterclaim in the Mortgage Action (with the concurrence of the Mortgagee Plaintiffs), counsel for the Joseph-Walker Parties argued at the hearing that there was an “architectural problem” because of the failure to properly consolidate the actions.

[117] This argument is misplaced. It appears to be a result of the lack of familiarity of newly appointed counsel for the Joseph-Walker Parties with the procedural history of these now Consolidated Proceedings. This Mortgage Action was not a response to (and could not be viewed as an attack upon) the Fraud Action because the Fraud Action did not exist when the Mortgage Action was commenced on June 30, 2022. Rather, that same day (seemingly coincidentally), the Joseph-Walker Parties commenced an application against primarily their brokers and lawyers and the mortgagees under certain other mortgages. It was not until later, when the application was converted into the Fraud Action (in February of 2023) that the Mortgagee Plaintiffs were even named as defendants and alleged to have been implicated in the fraud.

[118] If anything, it is the Joseph-Walker Parties who appear to have strategically expanded the Fraud Action upon its conversion to include the Mortgagee Plaintiffs so as to collaterally attack the summary judgment motion that had already been brought in this Mortgagee Action. However, more importantly, what this demonstrates is the wisdom of the Consolidation Order that was made in January 2023, given all of the overlapping claims.

[119] If it were not for the Consolidation Order, then there would have been a concern about whether to grant summary judgment in this action in favour of the Mortgagee Plaintiffs if they would remain as defendants facing all of the same allegations of fraud as have been raised in this Mortgage Action as grounds for denying summary judgment.

[120] While no parallel motion was brought for the dismissal of the Fraud Action as against the Mortgagee Plaintiffs in this action, that is the effective outcome of granting summary judgment in this action, having regard to the defences raised and the de facto treatment of the Fraud Action as a counterclaim in this action, which must also be dismissed. The same issues and same parties renders it res judicata. The Consolidation Order provides the umbrella within which to achieve this in the Consolidated Proceedings, and it is the most proportionate, expeditious and least expensive means of achieving the just result in the claims as between the Mortgagee Plaintiffs and the Joseph-Walker Parties.

iii. No Genuine Issue Requiring a Trial

[121] I find that there is no genuine issue requiring a trial. Accordingly, there is no need for me to resort to any of the fact finding powers under r. 20.04. The summary judgment process has allowed me to make the necessary findings of fact regarding the Loan advances by the Mortgagee Plaintiffs, the defaults of the Joseph-Walker Parties under the Mortgage and the amounts of principal and interests outstanding and payable to them. The summary judgment process has also allowed me to apply the law regarding the requirement of the responding parties on a summary judgment motion to put their best foot forward and not rely on bald assertions with respect to the absence of any evidence to support a finding or even a foundation for a finding of any involvement of the Mortgagee Plaintiffs in the alleged fraud.

[122] In these circumstances, and under the umbrella of the Consolidation Order, I find it to be in the interest of justice to provisionally grant summary judgment [10] in favour of the Mortgagee Plaintiffs, rather than requiring them to remain in these proceedings and have their mortgage enforcement rights ensnarled in the serious claims of fraud that the Joseph-Walker Parties are pursuing against the brokers and lawyers. See Hryniak, at paras. 49 and 66.

[123] There has been a fair and just adjudication of the fraud claims/defences advanced by the Joseph-Walker Parties against the Mortgagee Plaintiffs. Granting summary judgment in these circumstances is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. The procedure followed, with all of the accommodations and adjournments and opportunities to obtain some foundational evidence of the alleged fraud over the better part of a year that have not led to any substantiation of the claims asserted against the Mortgagee Plaintiffs, gives me confidence that the dispute as between the Mortgagee Plaintiffs and the Joseph-Walker Parties can and should today be resolved without the necessity of a trial. See Hryniak, at paras. 28 and 50.

iv. The Continuing Claims: Partial Summary Judgment

[124] The fraud claims can continue independently against those other parties, none of whom have implicated the Mortgagee Plaintiffs in any of the allegations. The Mortgagee Plaintiffs also have other contingent claims that they themselves are advancing against certain of the Broker and Lawyer Defendants named in the Mortgage Action. Those are unrelated to the fraud claims being advanced by the Joseph-Walker Parties. They are contingent claims that can be independently pursued if, as and when appropriate.

[125] The Ontario Court of Appeal has stated that: “Summary judgment might not be in the interest of justice where there is a ‘ risk of duplicative proceedings or inconsistent findings of fact’.” That must be balanced against the consideration of whether “the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate and cost-effective approach.” Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2021 ONCA 589, 462 D.L.R. (4th) 731, at para. 32.

[126] The situation in Heliotrope was similar to this case. Funds were loaned and secured by mortgages, which went into default and the mortgagees moved for summary judgment to enforce repayment of the loan in reliance upon the mortgage security. As in this case, there was no serious dispute that the money was loaned and that the defendants had defaulted in payment of the loans. In Heliotrope, the mortgagors also brought claims against other parties for damages related to the loans. In this case, both the Joseph-Walker Parties and the Mortgagee Plaintiffs also have brought claims against other parties for damages in relation to the Loans. In Heliotrope the court still found that it was appropriate to grant summary judgment, as too have I in this case.

[127] The Mortgagee Plaintiffs assert that there is no risk of inconsistent findings in this action if summary judgment is granted against the Joseph-Walker Parties even if their contingent claims against the Lawyer and Broker Defendants continue because the issues are sufficiently separate and distinct, and those other defendants do not object to the claims against them continuing even if summary judgment is granted against the Joseph-Walker Plaintiffs. I agree.

[128] The primary distinction between this case and Heliotrope is that the mortgagors (Joseph-Walker Parties) have not only brought claims against other parties for damages in relation to the Loan (in their crossclaim in this action as well as in the Fraud Action) but have also asserted those claims against the Mortgagee Plaintiffs, not only in their defence of this Mortgage Action but also in the Amended Statement of Claim in the Fraud Action. Thus, to grant summary judgment requires an effective dismissal of the claims in the Fraud Action against the Mortgagee Plaintiffs (deemed to be a counterclaim in the Mortgage Action).

[129] For the reasons previously outlined in this endorsement, there having been no genuine issue requiring a trial raised in respect of the fraud claims despite the very many opportunities that were provided for the Joseph-Walker Parties to do so, it is entirely appropriate for the dismissal of those claims to be subsumed in the granting of this summary judgment motion. They are embodied in the Joseph-Walker Parties' defence of this action and were at the forefront of the Joseph-Walker Parties’ opposition to this motion throughout, despite the inability to particularize or substantiate them in the more than a year that has elapsed.

[130] In a decision upholding the grant of summary judgment in which concerns about partial summary judgment were raised, Brown JA writing for the court helpfully outlined what the Superior Court of Justice should be mindful of when deciding whether to hear a summary judgment motion (which must equally be considered on the motion itself), in Malik v. Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215, at para. 62:

When faced with a request to hear a motion for partial summary judgment, a motion judge should make three simple requests of counsel or the parties:

(i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;

(ii) Show how partial summary judgment will get the parties’ case in and out of the court system more quickly;

(iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

[131] Given how this case has been conducted so far, it will undoubtedly be cheaper for the Mortgagee Parties not to be involved in defending unsubstantiated allegations of fraud against them. Litigating multi-party proceedings involving twenty to thirty parties is unwieldy. Granting summary judgment will allow some of the parties to get their case in and out of court more quickly and allow them to pursue mortgage enforcement remedies that have been stalled by the much slower pace at which the more complex, disputed and fact-dependent fraud claims are proceeding.

[132] With the Consolidation Order and the streamlining of the fraud claims as between the Joseph-Walker Parties and the Mortgagee Plaintiffs (the dismissal of which will follow from the granting of the summary judgment motion), and the compartmentalization of the continuing claims against the brokers and lawyers that do not implicate the Mortgagee Plaintiffs, I am satisfied that there is no risk of inconsistent findings in those continuing claims once the pleadings have been regularized. My confidence in that is reinforced by the Consolidation Order that was intended to ensure precisely by having them decided by the same judge.

v. The Requested Order for Possession

[133] The Mortgagee Plaintiffs rely on r. 60.10 pursuant to which the court may grant leave for a writ of possession to be issued if the court is satisfied that all persons in actual possession of the land have received sufficient notice of the proceeding and have had the opportunity to apply to the court for relief.

[134] The Joseph-Walker Parties were served with Demands for Possession on August 17 and 18, 2022, and the current occupants of the Bathurst Properties were served on September 14, 2022. All persons in actual possession of any part of the land have received sufficient notice of the proceeding and have had ample opportunity to apply to the court for relief and have not done so.

[135] Apparently, the first mortgagee with a prior registration against the 9191 Bathurst Street Property has already listed that property for sale and may already be in “passive” possession of that Property. The Mortgagee Plaintiffs concede that any order for possession in their favour would have to be made subject to the rights of any prior encumbrancers.

[136] As previously indicated, any order for possession would also have to be made subject to the interests and rights of all of the Mortgagees, not all of whom are on notice of this motion. This is part of the reason why the court’s order granting summary judgment will be provisionally stayed until they can be put on notice. However, subject to any concerns they may raise, the Mortgagee Plaintiffs have satisfied the stated criteria for an order for possession under r. 60.10 and the order can eventually be made subject to the rights of any other prior and pari passu encumbrancers being preserved.

Decision on Summary Judgment

[137] Summary Judgment is the most proportionate, expeditious, and least expensive means to achieve a just result in this case. It is granted provisionally, subject to the Seven Non-Party Mortgagees being added as necessary party defendants and being given a reasonable opportunity to indicate whether they have any objection to the order sought on this motion being granted (with the assurance from the Mortgagee Plaintiffs that their proportionate shares in any Mortgage proceeds will be distributed to them, or held in trust pending the determination of any claims as between them and the Joseph-Walker Parties). They are being added for the sole purpose of ensuring that, barring any objections that change the outcome, they will be bound by the court's order on this motion, including the order for possession and any ultimate sale of the Mortgaged Properties.

[138] The Case Conference contemplated in paragraphs 17 and 18 of this endorsement should be arranged before me through the Commercial List Office once the Seven Non-Party Mortgagees have been added and served with the amended Statement of Claim in the Mortgage Action together with a copy of this endorsement. The order granting summary judgment is stayed pending further directions to be provided at or following this Case Conference.

Costs

[139] In the interest of efficiency and justice, the Mortgagee Plaintiffs had originally indicated in their amended factum filed on the last return of the summary judgment motion that they were prepared not to seek the over $75,000 in estimated additional fees that they claimed to be entitled to pursuant to the terms of the Mortgage, which provides that they are entitled to full indemnity costs. They concede that costs are entirely in the discretion of the court to determine based on what is fair and just and proportionate.

[140] They had included $48,000 in the amounts claimed the legal fees associated with their enforcement of the Mortgage prior to the commencement of litigation (listed as part of the amounts to be paid under the Loan). Since then, and following various further attendances, the original Bill of Costs filed by the Mortgagee Plaintiffs for the Summary Judgment Motion certified their all-inclusive costs of the action and the Summary Judgment Motion to be $36,017.14 on a partial indemnity scale, $50,441.59 on a substantial indemnity scale and $55,249.74 on a full indemnity scale.

[141] In their subsequently filed Bill of Costs, the Mortgagee Plaintiffs included an additional amount of $3,500 in costs for the November 10 and December 5, 2023 case conferences that were necessitated by the failure of counsel for the Joseph-Walker Parties to familiarize himself with the record and make submissions regarding all aspects of the evidence filed (particularly the February 7 Email).

[142] The Bill of Costs submitted by counsel for the Joseph-Walker Parties (who only went on record shortly before the motion was argued) claimed all-inclusive costs of $9,040.28 for the Summary Judgment Motion on a partial indemnity scale (with comparators of $13,365.96 on a substantial indemnity scale and $14,806.80 on a full indemnity scale). An invoice was also submitted by former counsel to the Joseph-Walker Parties in the all-inclusive amount of $4,500 for fees billed up to January 2023, after which she became self-represented for a period of time.

[143] Counsel for the Joseph-Walker Parties further submitted that “[a]lthough the joinder issue was raised late in the day by recently retained counsel for the defendants, the matter of the proper parties to the motion is not just a matter for the defendants. It is a fundamental issue that both sides had an obligation to raise. As such the defendants ask that costs be determined as a part of the costs payable pursuant to the Court’s decision on the motion.”

[144] The Joseph-Walker Parties asked at the hearing for further opportunity to make cost submissions if there was partial success. The summary judgment motion is being provisionally granted. The provisions are the result of an argument raised by the Joseph-Walker Parties but I do not consider them to achieved any measure of success on the motion. Further, while the court did receive submissions on this issue, the timing of it (raised weeks after the motion had already been argued, necessitating further attendances and submissions) is itself a reason not to award any costs to the Joseph-Walker Parties who were not otherwise successful in opposing the Summary Judgment Motion.

[145] I do take the point that the Joseph-Walker Parties make, however, that this is ultimately a problem that was of the Mortgagee Plaintiffs own making in that they could and should have named the other Mortgagees as defendants in the first place, thus I am declining to award any costs in favour of the Mortgagees Plaintiffs for these post-October 13, 2023 hearing submissions and appearances.

[146] In the exercise of my discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and having regard to the relevant factors under r. 57 (with particular evidence on proportionality and reasonable expectations, but also having regard to the outcome and the contractual provisions) I am provisionally awarding the Mortgagee Plaintiffs their all-inclusive partial indemnity costs of the Summary Judgment Motion (over and above the amount of $48, 000 in legal fees specified in the breakdown of the outstanding Loan amount that is to be ordered paid to them) in the all-inclusive amount of $30,000.00. However, if as a result of adding the Seven Non-Party Mortgagees as defendants to this Mortgage Action the summary judgment order remains stayed and is not implemented, then this costs award shall remain similarly stayed.

Order

[147] Summary judgment is provisionally ordered in favour of the Mortgagee Plaintiffs granting their claims against the Joseph-Walker Parties in the Mortgage Action and for the corresponding dismissal of the claims against them in the Fraud Action (that were raised in the defence of this action and the summary judgment motion).

[148] Accordingly, having regard to the specific relief sought in the Notice of Motion, it is ordered that:

a. the possession of the Mortgaged Properties be transferred and delivered to the Plaintiffs, subject to any rights of prior and pari passu encumbrancers;

b. leave is granted to the Mortgagee Plaintiffs to issue writs of possession in this action in respect of the Mortgaged Properties;

c. Janina Joseph-Walker, Avenue Developments Inc., and Alpha Financing Inc. shall pay to the Mortgagee Plaintiffs the sum of $931,932.95 as of October 13, 2023 representing their proportionate share of the Loan advances plus accrued interest to October 13, 2023;

d. Post-judgment interest shall be payable at the rate prescribed under the Courts of Justice Act, not the contractual rate of interest; and

e. Janina Joseph-Walker, Avenue Developments Inc., and Alpha Financing Inc. shall pay to the Mortgagee Plaintiffs, in addition to any enforcement costs included in (c) above, partial indemnity costs of the summary judgment motion in the amount of $30,000.00, inclusive of all fees, disbursements and applicable taxes.

[149] This endorsement and the orders and directions contained in it shall be stayed pending the addition as necessary party defendants to this action of the other Seven Non-Party Mortgagees and the court's further directions regarding the regularization of the pleadings, having regard to the steps detailed in paragraphs 17 and 18 of this endorsement, or such other directions as may be provided pursuant to the court's jurisdiction and authority under rr. 20.05 and 50.13.

KIMMEL J. Date: January 12, 2024