Court File and Parties
COURT FILE NO.: CV-23- 92143 DATE: 2024/10/03
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Ronald James Plaintiff – and – Daniel Elias Smith and Marilyn Arditti Defendants
Counsel: Christopher Staples for the Plaintiff Daniel Elias Smith and Marilyn Arditti, Self-Represented
HEARD: September 26, 2024
Reasons for Decision on Summary Judgment
SOMJI J
Overview
1Ronald James seeks summary judgment for the Defendants’ failure to pay the outstanding principal, interest, and fees for a mortgage loan taken by the Defendants in January 2022 and which matured in February 2023 (the “Mortgage”).
Adjournment Request
2Mr. Smith appeared in court requesting an adjournment of the motion. I denied the request for the following reasons. A demand letter was forwarded to the Defendants on April 13, 2023 for repayment of the mortgage. A statement of claim was issued on May 12, 2023. A statement of intent to defend was filed on/around July 6, 2023, but since that time the Defendants have not filed any further materials in support of their defence. Furthermore, the matter went to a case conference before Associate Justice Perron on May 12, 2024. The Defendants requested an adjournment of the case conference, but it too was denied. AJ Perron set out timelines for materials to be filed for the summary judgment motion, but the Defendants failed to meet those deadlines as well. The Defendants have had over 18 months to obtain counsel or file a defence and have failed to do so. Mr. Smith’s suggestion that there was an issue with the cashing of a few cheques in 2023 does not constitute grounds for adjournment of the motion nor does it constitute an issue that would warrant a trial in this matter.
Appropriateness of Summary Judgment
3Upon review of the materials filed, I find that a summary judgment motion is proportionate, expeditious, and the least expensive manner in which to address the factual and legal issues raised. Upon review of the materials filed by the Plaintiff, I am satisfied that the pleadings allow me to make the necessary findings of fact and apply the law in relation to the alleged breach of contract: Hryniak v Mauldin, 2014 SCC 7, 2014 1 S.C.R. 87 at para 49.
Background and Facts
4Based on the materials filed, including the Plaintiff’s factum, I am satisfied that the Defendants entered into the Mortgage for a period of one year on February 15, 2022, and secured a principal of $379,500. Prior to the maturity of the mortgage, the Defendants were provided with an option to renew the mortgage on various conditions. The Defendants failed to meet those conditions and the mortgage renewal could not be processed. The Mortgage matured on February 15, 2023. In addition, it was determined that there were outstanding realty taxes for 2022 up to April 18, 2023, totaling $10,053.73. A demand letter was subsequently issued and upon failure of the Defendants to pay the outstanding debt, the Plaintiff commenced this legal action.
5Since the Mortgage renewal date, the Defendants have taken no steps to pay down the outstanding debt, interest, and arrears which totals $422,550.68 as of September 26, 2024.
Analysis and Decision
6Included in the amounts owing are particular administrative fees for enforcement that are set out in the mortgage loan document. These fees are explained in the factum with reference to the source document and were also reviewed in court. I find the amounts are recoverable fees.
7I find the Defendants have breached the terms of the Mortgage and the Plaintiff is entitled to summary judgment on the terms and conditions set out in the draft Order. This includes payment of the outstanding debt, interest, and fees listed as well as possession of the property against which the mortgage was secured.
8Counsel advised in court that the Plaintiff has not yet applied for a writ of possession to obtain the property and sell it. This is the anticipated next step. Mr. Smith was advised that if the writ is executed and the house is ultimately sold, the Defendants may be facing additional legal fees for those proceedings.
Costs
9Plaintiff’s Counsel seeks costs on a substantial indemnity basis in the amount of $8,906.40. Counsel filed a Bill of Costs. Counsel has 34 years’ experience but has charged a capped fee of $300/hour.
10In exercising my discretion in awarding costs, I may consider any relevant matter and Rule 57.01(1) which sets out a list of factors that the court may consider. I need not repeat these here, but I have considered them. I find that $8900 is a fair and reasonable costs award in the circumstances of this case.
Somji J.
Released: October 3, 2024