Court File and Parties
COURT FILE NO.: CV-22-00690267 DATE: 20240506 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KING CAPITAL MORTGAGE INVESTMENT CORPORATION Plaintiff – and – TOVA ASSOR Defendant
Counsel: James M. Butson, for the Plaintiff
HEARD: May 3, 2024
PAPAGEORGIOU J.
Overview
1The Plaintiff seeks summary judgment in respect of an outstanding debt pursuant to a charge.
2The Defendant did not attend and filed no materials. She had filed a Statement of Defence and had been represented by Paul Dineen at that time. Subsequently, Shane Smith attended at CPC Court when this matter was scheduled and indicated that he was counsel of record.
3In response to my assistant’s email requesting a copy of his factum, Mr. Smith wrote as follows on May 2, 2024:
I'm not retained on this matter - I was helping Ms. Assor with matters relating to what, in her view, was an illegal eviction / possession of her Crestwood home (and associated matters relating to her efforts at re-financing the Shaftesbury home).
The Shaftesbury property has been sold by the lenders (the Plaintiffs) and is closing in about a month. Ms. Assor does not have any funds to retain counsel for this matter any longer (nor did she have any to begin with).
May I suggest this motion be adjourned until the sale closes? (and perhaps it would be discontinued at that time by the Plaintiffs).
4Counsel for the Plaintiff advised that from March 2023 until the May 2, 2024, email, Mr. Smith, continued to correspond with Plaintiff counsel about this matter including advising that the Defendant was attempting to list the property for sale. At no time prior to the email of May 2, 2024, did he advise that he was not formally retained.
5I am not satisfied that there is any reason to adjourn this motion at this time. As noted, Mr. Smith scheduled the motion advising that he was the Plaintiff’s counsel. He does not say anywhere, including in his May 2, 2024, email that the Defendant is unaware of this motion even if Mr. Smith is no longer retained.
Decision
6For the reasons that follow, I grant summary judgment.
Analysis
The Summary Judgment Test
7In accordance with r. 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), the court shall grant summary judgment if:
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
8In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and a judge may exercise any of the following powers under r. 20.04(2.1): (1) weighing the evidence; (2) evaluating the credibility of a deponent; and (3) drawing any reasonable inference from the evidence.
9The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, explained:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
10In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party cannot rest solely on allegations in a pleading. Each side must “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9. Furthermore, “a summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial”: Diao v. Zhao, 2017 ONSC 5511, at para. 18.
Background
11The Plaintiff entered into a Charge/Mortgage of Land with the Defendant securing $2,300,000 and interest at the rate of 10 % per annum.
12The said Charge provides for payment of interest only as follows:
The sum of $19,166.67 representing payment of interest only shall be paid on the 20th day of each and every month commencing on the 20th day September 2021, to and including the 20th day of August 2022.
13Pursuant to the above-noted Charge the Defendant, Tova Assor, agreed to be bound by the provisions of the Standard Charge Terms filed as number 200033, and the said Defendant acknowledged receipt of a copy of same.
14The said set of Standard Charge Terms further provides, inter alia, that if the Chargor is in default in payments of the amounts due and owing under the said Charge, then at the option of the Chargee, the whole of the principal amount owing thereunder, together with accrued interest as aforesaid shall immediately become due and payable.
15The said set of Standard Charge Terms further provides in part, that the chargee may pay all premiums of insurance and all taxes and rates which shall from time to time fall due and be paid in respect of the charged premises, and that such payments together with all costs, charges and expenses on a solicitor and client basis which may be incurred in taking, recovering keeping possession of the said lands, and generally in any other proceedings taken in connection with or to realize upon the security shall be with interest at the rate aforesaid, a charge upon the said lands and any such amounts paid by the chargee shall be added to the debt secured and shall be payable forthwith.
16The Schedule “A” attached to the subject Charge states in part as follows: “CHARGE NOT PAID WHEN DUE”
In the event the Charge is not repaid in full or renewed on or before the Balance Due Date and mortgage payments continue to be delivered on a month to month basis to the Chargee, without a formal renewal agreement being executed between the Chargee and the Chargor, the Chargor acknowledges and agrees that it shall be subject to all and shall pay the Chargee extension fee of 10% (ten) percent of the outstanding principal balance on the balance due date which amount shall become due and payable on the 1st day following the Balance Due Date.
17The Defendant defaulted under the terms and conditions contained in the Charge on or about August 20, 2022, and the said default continues to date. Moreover, the said Charge matured on August 20, 2022, and no further renewal, amendment or extension of charge was offered and/or accepted by the Plaintiff.
18As a result of the continued default of the Defendant, on November 15, 2022, the Plaintiff’s current solicitors, Agueci & Calabretta, caused a Statement of Claim to be issued out of the Ontario Superior Court of Justice which was served upon the Defendant.
19As a result of the continuing default, the Plaintiff’s solicitors, were instructed to issue a Notice of Sale Under Mortgage in connection with the subject charge.
20The Notice of Intention to Enforce Security pursuant to Subsection 244(1) of the Bankruptcy and Insolvency Act was forwarded to the Defendant together with the above-noted Notice of Sale Under Mortgage by registered mail on November 28, 2022.
21As a result of the default, $2,433,231.93 remains outstanding as of November 15, 2022.
22The Defendant filed no materials in response to the motion.
23In her Statement of Defence, the Defendant admits entering into the Charge, the payment terms, the Standard Charge Terms, and the default under and maturity of the Charge. The Defendant also admits the principal owing under the Charge and the interest owing to August 20, 2022, and that the Charge matured at that time. The Defendant further admits the Plaintiffs’ right to possession of the Charged Property and that she is responsible for paying all solicitors’ charges. However, the Defendant denies that it owes the amounts sought in the Statement of Claim for the following reasons.
24In her Statement of Defence, the Defendant alleges that the third mortgagee, ARMC Holdings Ltd. has paid out the Charge herein and commenced a separate action for possession. The counsel for ARMC Holdings Ltd., who is also the Plaintiff’s counsel herein, has advised that the statement of claim issued in that action was issued in error and is not proceeding. Furthermore, the Plaintiff has reviewed its records and says the Plaintiff’s Charge has never been paid and the Plaintiffs confirmed in their evidence that the above amounts remain outstanding.
25The Statement of Defence also alleges that the charged property is tenanted, and the Plaintiff is collecting rents pursuant to its Attornment of Rents. Although this is true, attornment of rents and possession of charged property are two separate remedies that can be exercised in the event of default.
26In order to oppose this motion, the Defendant would have had to provide some evidence from ARMC Holdings to show that it had paid out the charge which she failed to do.
27If the Defendant wished to oppose this or wished an adjournment, she should have shown up or filed some evidence to oppose it.
28I am satisfied that service on Mr. Smith who represented that he was the Defendant’s counsel at CPC court and agreed to schedule this motion is adequate service even though he now contends that he has not been retained.
29I note that his communication to the court does not indicate anything to the effect that the Defendant does not know about this motion.
30In all the circumstances, I conclude that there is no genuine issue that requires a trial.
31As such, the Defendant is liable to pay the aforesaid sum of $2,433,231.93 and interest thereon at the rate of 10.00% per annum from November 15, 2022, to the date of judgment or payment.
32There were two proceedings before me related to the same property and the same debtor, the Defendant, Ms. Assor, in file number CV-22-00691359. I will address costs in this decision for both matters.
33Counsel requests costs in the amount of $11,000 for both matters inclusive of time, HST and disbursements. I am satisfied that this amount is fair and reasonable and within the reasonable contemplation of the Defendant.
Papageorgiou J.
Released: May 6, 2024