Court File and Parties
COURT FILE NO.: CV-22-00691359 DATE: 20240506 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. SHAYTZAG MEDICINE PROFESSIONAL CORPORATION and ANDREW UNGER PROFESSIONAL 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 and agreed to the scheduling of the motion.
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 Plaintiffs 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 Defendant Ms. Assor’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 Plaintiffs entered into a Charge/Mortgage of Land with the Defendant securing $700,000 and interest at the rate of 10% per annum.
12The Standard Charge Terms provide as follows:
T H E Ch a r g ee , on d e f a u l t of p a y ment b y the Ch a r g o r for a t l e a st fi f te e n ( 15) d a y s, m a y , on a t l ea st t hir t y - fi v e (35) d a y s ' not i c e e nt e r on a nd le a se the l a nd or o n d e f a ult of p a y m e nt b y t h e Ch a r gor for a t le a st fi f t ee n (1 5 ) d a y s, m a y , on a t le a st th i r t y - fi v e (35) d a y s ' not i c e e nter on a nd s e ll the land. The C h a r g e e m a y l e a se or s e ll the land without e nte r ing in t o po s s e ss i on the re of.
13The s a id s e t of S tand a rd Ch a rge T e rms fu r th e r provid e , in t e r a l i a , that if the Ch a r g or is in d e f a ult in p a y m e nts of t h e a moun t s d u e a nd owi n g und e r the s a id Ch a r g e , t h e n a t t h e opt i on of the Ch a rg e e , the whole of the prin c ipal a mount owing the re un d e r, to g e ther with acc ru e d in t e r e st as a f o r e s a id shall i m medi a te l y b e c ome d u e a nd p a y a ble.
14T h e s a i d s e t o f S t a nd ar d Ch ar g e Ter m s f u r th e r p r o vid e s i n p ar t , that the c h a r g e e m a y p a y a ll pr e m i ums of insur a n c e a nd a ll ta x e s a nd r a tes whi c h sh a ll f r om t i me to t i me f a ll due a nd be p a id in r e sp e c t of the c h ar g e d pr e m i s e s, a nd that s u c h p a y ments t o g e th e r wi t h a ll c ost s , c h ar g e s a nd e x p e ns e s on a sol i c i t or a nd c l i e nt b a sis whi c h m a y b e inc u r re d in taki n g , r ec o v e ri n g a nd k ee pi n g possession o f t he s a id l a n ds, a nd g e n e r a l l y in a n y oth e r pr o cee di n g s ta k e n in c onn ec t i on with or to re a l iz e upon the s ec u ri t y s h a ll be with in t e r e st a t t he r a t e a f o r e s a id, a c h a r g e upon t h e s a id l a n ds a nd a n y su c h a moun t s p a id b y t h e c h a r g e e s h a ll be a dd e d to the d e bt se c u r e d a nd sh a ll be p a y a ble f o rth w i t h.
15T h e S c h e d ul e “A ” a t t ac h e d t o th e su b j ec t Ch ar g e s t a t e s i n p ar t “ CH A RGE N O T P A I D W H E N D UE”
I n the e v e nt the Ch a r g e is not r e p a id in full or r e n e w e d on or b e fo r e the B a l a n c e D u e D a te a nd mort g a ge p a y ments c ont i nue to be d e l i v e r e d on a mon t h to mon t h b a sis to the Ch a r g e e , without a fo r mal r e n e w a l a gr e e m e nt b e ing e x ec uted b e tw e e n the Ch a r g e e a nd t h e Ch a r g or, the Ch a r g o r ac knowl e d g e s a nd a g re e s that it sh a ll be subj ec t t o a ll a nd sh a ll p a y the Ch a r g e e e x tension f e e of 10% (t e n) p e r c e nt o f the outs t a nding pri n c ipal b a lan c e on the b a la n c e due d a te whi c h a mount sh a ll b ec ome due a nd p a y a ble on t h e 1 st d a y followi n g the B a la n c e Due D a te . ”
16T he Defendant d efa u l t e d und e r t he t e r ms a n d c o n di t ions c o n t a in e d in the Ch ar g e on or a bo u t A u g ust 2 0 , 20 2 2, a n d the s a id d efa ult c on t inu e s t o d a t e . Mo r e ov er , t he s a i d Ch ar g e m a tu re d o n A u g ust 20, 20 2 2, a nd no f u r th e r re n ew a l, a m e n d m e nt or e xt e n s ion of c h ar g e wa s o ffere d a nd / or acce pt e d by the Plaintiff s.
17The Plaintiff filed materials showing that it was owed $753,780.03 as of December 6, 2022.
18The Defendant filed no materials in response to the motion.
19In her Statement of Defence, t he Defendant a d m its e n t er ing into the Ch ar g e , the p a y m e nt t er ms, t he S t a n d ar d Ch ar G e Ter ms, a nd the d efa u l t und e r a nd m a tu r i ty of the Ch ar g e . T h e Defendant a lso a d m i ts the p r in c ip a l o w ing und e r the Ch ar g e a nd the int ere s t o w ing t o A u g u s t 20, 2022, a nd th a t the Ch a r g e m a tu re d a t th a t tim e . T he Defendant f u r t h e r a dmi t s t he Plaintiff s’ r i g ht to p o ss e s si o n of the C h ar g e d P r op er ty and th a t she is re s p on s ible f or p a y ing a ll so l i c i t o r s’ c h a r g e s. H o we v er , the Defendant d e n i e s th a t i t o we s the a mo u nts sou g ht in t he S t a t e m e nt of C l a i m for the following reason.
20T he Defendant a ll e g e s t h a t the thi r d mo r t g a g ee , ARMC H o l din g s L td. h a s p a id o u t the C h ar g e h ere in a n d c o mm e n ce d a s e p ara te ac t ion f or po s s e s sio n . T he c o u ns e l f or A R MC H o l din g s L td., w ho is a l s o the Plaintiff ’ s c ouns e l h ere in, advised t h a t the st a t e m e nt of c l a im issu e d in th a t ac t i o n wa s is s u e d in err or a n d i s not p r o cee din g . F u r th e r mo re , the Plaintiff has reviewed its records and t he Plaintiff ’ s C h ar g e h a s n e v e r b ee n p a id . T he a b o ve a mo u nts re m a in o ut s t a n d in g .
21In 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.
22If the Defendant wished to oppose this or wished an adjournment, she should have shown up or filed some evidence to oppose it.
23I 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.
24I note that his communication to the court does not indicate anything to the effect that the Defendant does not know about this motion.
25In all the circumstances, I conclude that there is no genuine issue that requires a trial.
26As such, the Defendant is l i a ble t o p a y the a f o r e s a id sum of $753,780.03 a nd in t e r e st the re on a t the r a te of 1 0 .00% p e r a nnum f r o m D ece mb e r 6, 2 022, to t he d a te of ju d g ment or p a y m e nt.
27Costs will be dealt with in a companion summary judgment motion in matter CV022-0069267 brought before me today in respect of a different lender, but the same property, the same counsel and same Defendant.
Papageorgiou J.
Released: May 6, 2024