Narouz v. Fisgard Capital Corporation, 2025 ONSC 1600

COURT FILE NO.: CV-23-93627

DATE: 2025/03/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Wadie Narouz

Plaintiff/Defendant by Counterclaim (Responding Party)

– and –

Fisgard Capital Corporation also known as Fisgard Asset Management Corporation

Defendant/Plaintiff by Counterclaim (Moving Party)

Self-represented

Christopher Shorey, for the Defendant/Plaintiff by Counterclaim (Moving Party)

HEARD: January 15, 2025

Justice k.a. jensen

1This action relates to the enforcement of a $495,000 mortgage registered in favour of Fisgard Capital Corporation (“Fisgard”) on the title to the Plaintiff’s house at 73 Rita Avenue, Ottawa (the “Property”).

2The Plaintiff, Wadie Narouz, first defaulted on the interest payments and then failed to repay the loan on its maturity date. After Fisgard issued a formal demand for payment and a notice of sale, Mr. Narouz commenced an action in which he claimed the following:

(a) a refund of the disbursements that were paid to Fisgard's lawyers and his mortgage broker in 2021, when the loan was originally funded;

(b) a reduction of the 9.24% interest rate that was applied to the mortgage in 2022;

(c) the cancellation of fees incurred as a result of his defaults;

(d) an order that he not be required to repay the mortgage because Fisgard did not advise him to obtain disability insurance; and

(e) a declaration that the notice of sale is invalid because Mr. Narouz made a partial payment towards the indebtedness after the notice of sale was delivered (therefore changing the amount owing).

3On December 20, 2023, Fisgard’s lawyers served Mr. Narouz with its statement of defence and counterclaim in this action. Mr. Narouz failed to serve a statement of defence to Fisgard's counterclaim and on January 12, 2024, Mr. Narouz was noted in default.

4The parties agreed that the noting in default would be set aside on the condition that the matter be heard by way of a summary judgment motion. After the default was set aside, Mr. Narouz filed a defence to the counterclaim on July 15, 2024.

5Fisgard argues that it is clear and obvious that Mr. Narouz’s claims will fail. Therefore, Fisgard requests that summary judgment should be granted in its favour.

6Mr. Narouz argues that the matter should proceed to trial because there are triable allegations of fraud and forgery, breach of fiduciary obligations and duty of care – all of which hinge on credibility determinations.

The Issues

7The issues are whether Mr. Narouz's claim should be dismissed and Fisgard's claim for judgment and possession be granted.

The Test for Summary Judgment

8The Supreme Court of Canada has confirmed in Hryniak v. Mauldin, 2014 SCC 7, that the ultimate question in a motion for summary judgment is whether there is a genuine issue requiring a trial. The court held that a genuine issue requiring trial does not exist if the motion allows a judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

9Once the plaintiff demonstrates that there is no genuine issue requiring a trial, the burden shifts to the defendant to prove that the defence put forward has a real chance of success at trial: Kamalanathan v. CAMH, 2019 ONSC 56, at para. 23. The court is entitled to presume that the defendant has put forth its best evidence on the motion and that if the case were to proceed to trial, no additional evidence would be presented: TD Waterhouse Canada Inc. v. Little, 2009 CanLII 43663, at para. 15.

10In the present case, Fisgard is asking for summary judgment on its counterclaim, which would have the effect of dismissing Mr. Narouz’s claim.

Application of the Test for Summary Judgment

Ability to Make Necessary Factual Findings

11On the evidentiary record and undisputed evidence before me, I am able to make the necessary findings of fact.

12It is undisputed that in October 2021, Fisgard loaned Mr. Narouz $495,000 for a fixed term of one year at 6.99% interest. Interest on the loan was to be paid monthly, with the principal due on the maturity date of November 15, 2022. The loan was secured by a mortgage registered on title to the Property.

13When the loan was advanced, a legal fee of $2,590.50 and a mortgage broker's fee of $9,900 was deducted from the loan (as was $1,609.47 in interest incurred between October 29, 2021, the funding date, and November 15, 2021, the interest adjustment date). Therefore, of the $495,000 loan amount, $480,900.63 was advanced to Mr. Narouz's solicitor, with the balance used to pay the $14,099.97 in disbursements.

14Mr. Narouz states that he was not made aware of the disbursements, and he disputes them for various reasons set out below.

15However, there does not seem to be any dispute that Mr. Narouz received the mortgage loan from Fisgard, the loan has matured, and Mr. Narouz has refused to pay it back.

16Furthermore, there is no dispute that Fisgard complied with the notice requirements under the standard loan terms, and the relevant provisions of the Mortgages Act, R.S.O. 1990, c. M.40, the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, and the Family Law Act, R.S.O. 1990, c. F.3.

17For the following reasons, I find that Mr. Narouz’s claim has no basis in law and fact and his claim against Fisgard is therefore dismissed.

Ability to Apply the Law to the Facts

Legal Fees and Mortgage Broker Fee

18Mr. Narouz's first complaint is regarding the $2,590.50 in legal fees, which were paid to Fisgard's solicitors, Siskinds LLP ("Siskinds"), and the $9,900 broker fee, which was paid to Mr. Narouz's mortgage broker, Mortgage Alliance Company of Canada ("MACC").

19On the basis of the evidence provided on this motion, including Mr. Narouz’s evidence, I find that the legal fees and mortgage broker fees were disclosed in advance to Mr. Narouz and he chose to proceed with the loan anyway.

20The following evidence establishes this fact:

(i) The letter from Fisgard, dated October 22, 2021, approving Mr. Narouz’s mortgage application clearly lists $9,900 as a fee. On October 22, 2021, Mr. Narouz signed the loan approval letter below the line stating:

THE UNDERSIGNED HEREBY ACKNOWLEDGE(S) HAVING RECEIVED AND READ THE LOAN APPROVAL, FISGARD'S STANDARD TERMS – RESIDENTIAL (ONTARIO), AND THE FEE SCHEDULE. FISGARD'S STANDARD COMMITMENT TERMS AND FEE SCHEDULE ARE AVAILABLE: http://www.fisgardcapital.com/wp-content/uploads/standardtermsON.pdf

(ii) The cost of borrowing disclosure dated October 22, 2021, provided that the upfront costs incurred to obtain the mortgage would include a $9,900 broker fee and estimated legal fees of $3,100.

(iii) The disbursement summary dated October 29, 2021, provided that: $9,900 would be paid as "first mtg brokerage fees" to MACC; $500 would be paid to Siskinds as a "rush fee"; and $2,090.50 would be paid to Siskinds for legal fees and disbursements. Mr. Narouz irrevocably authorized and directed Fisgard to make these disbursements out of the mortgage funds. His signature is right below the authorization.

21On cross-examination, Mr. Narouz first denied having signed any of these documents, but later said that he did not remember and that he has had memory problems since suffering a stroke.

22Mr. Narouz was represented by legal counsel, Stephane Côté, in this transaction. He admitted receiving from Mr. Côté, on October 29, 2021, a trust ledger statement indicating that through inadvertence the amount of $14,099.97 (being the total value of the disbursements referred to above) was not advanced to Mr. Narouz. Mr. Narouz admitted in cross-examination that he asked Mr. Côté for details about this.

23Mr. Narouz admitted that he was represented by Mr. Côté on the transaction and that he signed both an "Acknowledgement Re Legal Representation" (the "Acknowledgement") and a "Direction Re: Funds" (the "Direction") at Mr. Côté's office as witnessed by Mr. Côté.

24The Acknowledgement provides that Mr. Côté was his lawyer and that he "explained to [Mr. Narouz] the nature and effect of all documents signed by [him] in relation to this transaction, and [that Mr. Narouz] executed all documents relating to the transaction of [his] own free will." The Direction provides that Fisgard and Siskinds are authorized and directed to pay to or as directed by Fisgard, "in respect of the lending set-up and other fees" (the broker fee) and "on account of accrued and unpaid interest" (the interest adjustment), and to Siskinds in respect of legal fees, disbursements and HST.

25I find that despite Mr. Narouz's inconsistent evidence regarding whether he signed certain documents, there is no doubt that he authorized and directed payment of the fees that he now disputes, and that he did not complain about them at that time. It is more likely than not that Mr. Narouz signed the documents electronically and later did not recognize the signature. This is understandable. An electronic or digital signature can look quite different from one’s handwritten signature. Mr. Narouz has had some health difficulties, including a stroke, that have affected his memory. Therefore, I find it highly likely that Mr. Narouz simply does not remember signing the documents in question and/or he does not recognize his electronic signature.

26Mr. Narouz also argued that he did not receive the disbursement summary from Siskinds that provided a record of the disbursements that were paid out of the mortgage loan on his behalf. He stated that the first time he received this document was during litigation when it was provided as an exhibit to the affidavit of Alison Kiliback. However, Ms. Kiliback provided evidence in her affidavit that Fisgard received the signed disbursement summary from Mr. Narouz’s lawyer, on October 29, 2021. Furthermore, the evidence in this case shows that Mr. Narouz produced his own copy of the disbursement summary after the closing.

27I find it highly implausible that Mr. Narouz was not provided with the disbursement summary for the reasons set out above. I think it is highly likely that Mr. Narouz does not remember having received the document from his lawyer.

28Mr. Narouz argued that Fisgard failed to provide him with information about whether the mortgage fee was paid directly to the mortgage broker, Anis Serri. He stated that Mr. Serri told him that he was not paid the broker fee and therefore, required Mr. Narouz to give him $20,000 in jewellery to secure the mortgage. He argued that Fisgard, MACC and Mr. Serri colluded to obtain his business on a fraudulent basis.

29With respect, there is simply no evidence of any fraudulent transactions. Mr. Narouz said that he attempted to get evidence of fraud and collusion, but Fisgard refused to provide information about MACC’s payments to their brokers. However, even if MACC did not pay Mr. Serri the fee that was deducted from Mr. Narouz’s mortgage, this would not constitute evidence of collusion or a fraudulent transaction by Fisgard. It might indicate that MACC and Mr. Serri had a dispute, and that Mr. Narouz was tangled up in that. However, it would not implicate Fisgard and would not establish that the broker’s fee was illegitimate or illegal in any way.

30If Mr. Narouz had decided to pursue Mr. Serri or MACC through the civil courts, he could perhaps have obtained the information he was seeking. Mr. Narouz has provided no authority indicating that Fisgard was required to provide this information to him upon his demand for it. Nor has he substantiated his claim that Fisgard colluded with anyone to rob him.

31Payment of the legal and mortgage broker fees was a prerequisite to funding the loan. Mr. Narouz agreed to pay them in exchange for receiving the loan. Fisgard would not have funded the loan had he not agreed to pay the fees. Mr. Narouz cannot now claim that he did not know about the fees and would not have agreed to them had he known about them.

32Finally, and importantly, Fisgard was not the recipient of these disbursements. Rather, it merely paid them to third parties as it was authorized and instructed to do by Mr. Narouz.

33There is therefore no legal or factual basis to ask Fisgard to "refund" these amounts, especially as Fisgard did not actually receive them, but rather they went to third parties.

Interest Rate

34Mr. Narouz alleges that the 9.24% interest rate that he agreed to in 2022 is too high and should be reduced. He argues that pursuant to the Unconscionable Transactions Relief Act, R.S.O. 1990, c. U.2 ("UTRA"), the interest rates should be reduced. For the following reasons, this argument is without merit; there is no need for a trial to determine the issue.

35The original term of the loan matured on November 15, 2022. Prior to the maturity date, on September 19, 2022, Fisgard offered to renew the loan for an additional one-year term, which would extend the maturity date to November 15, 2023.

36The original interest rate for the loan was 6.99%. However, between October 22, 2021 (when the loan was originally granted) and November 15, 2022 (the maturity date for the original term of the loan), Bank of Canada interest rates increased by 3.5%. When Fisgard offered to renew the mortgage, it did so at 9.24%, which was only a 2.25% increase from the original rate. This is not an unconscionable interest rate at a time when interest rates had generally risen by 3.5%.

37As stated by this court in Smit v Pluim, 2015 ONSC 7945, at para. 16:

The Unconscionable Transactions Relief Act R.S.O. 1990, c. U.2 (“UTRA”) gives the court fairly broad powers relating to annulment or reformation of a contract in circumstances in which the court finds that, having regard to the risk and all of the circumstances, the cost of the loan is excessive and that the transaction is harsh and excessive.

38Mr. Narouz was not required to renew the loan at the 9.24% interest rate. He could have refinanced the loan with another lender at a different interest rate. Mr. Narouz admitted on cross-examination that he knew the loan was renewing at a higher rate and agreed to it anyway.

39In Smit, at paras. 18-20, Woollcombe J. provided the following helpful commentary to guide the analysis under the UTRA:

18It is important to recognize the words of Justice Judson in Ontario (Attorney General) v. Barfried Enterprises Ltd., 1963 CanLII 15 (SCC), [1963] S.C.R. 570, 42 D.L.R. (2d) 137 who observed at para. 12 that:

The wording of the statute indicates that it is not the rate or amount of interest which is the concern of the legislation but whether the transaction as a whole is one which would be proper to maintain as having been freely consented to by the debtor…

19In his decision in Ekstein v. Jones, [2005] O.J. No. 3497 (S.C.J.), Justice Ferguson reviewed that the prerequisites of s. 2 of the UTRA are that (1) the cost of the loan is excessive and (2) that the transaction is harsh and unconscionable. In assessing whether these requirements have been established, both the risk in respect of the money lent and all of the circumstances must be considered.

20Justice Ferguson went on at paras. 48-52 to find that there are two ways to establish that the loan is excessive: by showing that the cost constitutes a criminal rate of interest, or by showing that the cost of the loan is excessive having regard to the risk and all of the circumstances.

40A “criminal rate of interest” is 60% or more.¹ That is not the case here. Therefore, the question is whether the cost of the loan is excessive having regard to the risk and all of the circumstances.

41A loan is "harsh and unconscionable" if either: a) the terms are very unfair; b) the consideration is grossly inadequate; or c) there was an inequality of bargaining power between the parties that one of the parties took advantage of.²

42Mr. Narouz argued that the cost of the loan was excessive in the circumstances: he had, and still has a disability; he has suffered recent health problems; and he was desperate for a loan to resolve the family law proceedings he was involved in with his former wife.

43I do not find Mr. Narouz’s arguments and evidence on this point to be persuasive; they do not give rise to the need for a trial. Firstly, Mr. Narouz agreed to the 6.99% interest rate on the previous term of the mortgage. He did not argue that this interest rate was excessive. It is just the increase of 2.25% that he argues is excessive and harsh. The increase was not unfair or excessive, given the 3.5% Bank of Canada interest rate increase at that time. In fact, Fisgard’s interest rate was less harsh than the Bank of Canada rate.

44Secondly, the consideration provided in exchange for the interest rate was a bank loan of $495,000. That cannot possibly be considered “grossly inadequate”.

45Thirdly, there was no inequality of bargaining power. While Mr. Narouz may have been suffering from health problems, he was represented by legal counsel whose professional obligation required him to act in Mr. Narouz’s best interests. Representation by legal counsel effectively levelled the playing field for Mr. Narouz so that he was in a position of equal bargaining power, notwithstanding his own limitations.

46Mr. Narouz could have pursued a loan from any lender. Mr. Narouz stated that he felt pressured into renewing the loan at the higher rate. However, I see no evidence of him being pushed or pressured into renewing the loan. Fisgard gave Mr. Narouz ample warning that his loan was maturing. This gave Mr. Narouz time to explore renewing at the higher rate with Fisgard or finding another lender. He chose to renew with Fisgard. He may have later regretted this, but that does not provide a legal basis for arguing that the interest rate was unconscionable.

47Finally, Mr. Narouz raised the case of P.A.R.C.E.L. Inc. et al. v. Aquaviva et al., 2015 ONCA 331, 126 O.R. (3d) 108, wherein the Court of Appeal for Ontario determined that the late payment charges and default fees on the mortgage in that case constituted fines or penalties prohibited under s. 8 of the Interest Act, R.S.C. 1985, c. I-15.

48Section 8(1) of the Interest Act stipulates that:

No fine, penalty or rate of interest shall be stipulated for, taken, reserved or exacted on any arrears of principal or interest secured by mortgage on real property or hypothec on immovables that has the effect of increasing the charge on the arrears beyond the rate of interest payable on principal money not in arrears.

49In P.A.R.C.E.L., the plaintiffs loaned $458,488.07 to the defendants. The repayment of the loan was secured by a promise to pay set out in a promissory note. That note was secured, in turn, by a mortgage on real property in the same amount. Both the promissory note and the mortgage provided for an interest rate of 0.75 per cent per annum. The promissory note (but not the mortgage) provided for the escalation of the interest rate to 10 per cent per annum after default. The mortgage provided for a late payment charge of $10 per day and a missed payment fee of $300 for each missed or late instalment. When the defendants stopped making payments under the note and the mortgage, the plaintiffs sued. They obtained summary judgment for the outstanding principal, plus interest at the rate of 10 per cent per annum, plus late payment charges of $7,200 and default fees of $11,110. The defendants appealed.

50The Court of Appeal for Ontario allowed the appeal in part stating that the late payment charges and default fees provided for in the mortgage constituted fines or penalties prohibited under s. 8 of the Interest Act, in the absence of any evidence that the charges in question reflected real costs legitimately incurred by the plaintiffs for the recovery of the debt.

51The facts in the present case are wholly dissimilar to those in P.A.R.C.E.L. In the present case, the interest rate remained the same, regardless of default, and the charges in question were legitimately incurred. Furthermore, as noted below, the only fees that were charged upon default were for legal costs actually incurred.

52Mr. Narouz referred to the case of Sanders v. Canada's Choice Investments Inc., 2023 ONSC 195, in which this court held that a mortgage loan with an interest rate of 34.2% as well as a host of additional fees and onerous requirements was prima facie unconscionable. The mortgagor was a 78-year-old woman, who had Alzheimer’s disease and lived alone in her semi-detached home on a modest annual income of less than $60,000 per year. The evidence showed that strangers visited her home and, through a series of misrepresentations and pressure tactics, persuaded her to take out a $500,000 one-year loan secured by a first mortgage on her house under onerous and usurious conditions.

53Quite clearly, the facts in the present case are not the same or even similar to those in Sanders. Although Mr. Narouz was suffering from health problems, he was represented by counsel throughout the transaction. The conditions of the loan are markedly different from those in Sanders. The increase in the interest rate from the first term was only 2.25%, which was lower than the increase in the Bank of Canada rate of 3.5%.

The Fees Associated with the Default

54Mr. Narouz’s third complaint relates to legal fees that he was charged after his defaults on the mortgage.

55Mr. Narouz failed to pay his property taxes and missed both of his April 15 and May 15, 2023 interest payments (each of which constituted an event of default under the terms of the mortgage). Fisgard’s lawyers sent a demand letter and notice of intent to Mr. Narouz to enforce security. Mr. Narouz then requested a statement of arrears. On May 26, 2023, a statement of arrears was sent to Mr. Narouz. It indicated that $10,824.64 (inclusive of a $500 management fee) was owing, plus $1,500 in legal fees.

56The terms of the mortgage provide that, upon default, Mr. Narouz “agrees to pay all costs, including legal fees and disbursements on a solicitor and own client full indemnity basis incurred by Fisgard in protecting the Lands or enforcing the … Security.” The terms also provide that Mr. Narouz must pay any applicable fees as set out in the Fee Schedule. The Fee Schedule in turn provides that “All fees are subject to change without notice. Legal fees, if applicable, shall be in addition to the fees set forth above.” Mr. Narouz admitted on cross-examination that he initialed each page of these mortgage terms.

57Mr. Narouz paid the $10,824.64 indicated in the May 26, 2023 statement of arrears, but not the $1,500 in legal fees. Nevertheless, Fisgard considered that the loan was put back into good standing.

58Unfortunately, Mr. Narouz defaulted on the loan again when he failed to pay the July 15, 2023 interest payment. Fisgard delivered another demand letter, and this time, it included a notice of sale. Mr. Narouz then failed to pay the August and September 15, 2023 interest payments. Again, Mr. Narouz requested a payout statement. On September 22, 2023, he was provided with a statement of arrears which indicated that he owed, among other things, a $100 NSF (non-sufficient funds) fee, a $500 management fee, $2,723 in legal fees, and a $500 reinstatement fee (although, as the loan was not reinstated, he was never charged the reinstatement fee).

59Mr. Narouz failed to pay the amounts owing. Although he made a partial payment on October 12, 2023, it was insufficient to cover the missed interest payments and the additional legal fees.

60Mr. Narouz wrote to Fisgard’s lawyers stating:

I am only required to pay the mortgage arrears. The extra charges and legal fees will be subject to a Notice of Appointment for Assessment under Section 43(4) of the Mortgages Act, or some other judicial review, and do not have to be paid until they are assessed.

61However, Mr. Narouz then failed to make the October 15 or November 15, 2023 interest payments, and also failed to repay the balance on November 15, 2023, which was also the maturity date.

62Over this period, Fisgard incurred a total of $3,102.44 in legal fees, which were added to the mortgage debt ($1,028.22 on September 1, 2023, and $2,075.22 on November 1, 2023).

63Fisgard indicated at the hearing of this motion that it was willing to waive the management fees. Therefore, only the legal fees are in issue in the present case.

64The amount for legal fees was, in fact, incurred by Fisgard and added to the mortgage debt pursuant to the terms of the mortgage that Mr. Narouz agreed to while represented by counsel. I find that the quantum of these fees is reasonable considering that Mr. Narouz had, at that point defaulted twice, resulting in two sets of demand letters, two notices of intention to enforce security, two statements of arrears, a notice of sale, and multiple communications between Fisgard's lawyers and Mr. Narouz.

Disability Insurance

65Mr. Narouz commenced this action on October 20, 2023. Fisgard served its statement of defence and counterclaim on November 9, 2023. Mr. Narouz served a reply and defence to counterclaim on July 15, 2024.

66In his defence to the counterclaim, Mr. Narouz stated that he is not liable to pay back the loan because Fisgard did not advise him to obtain mortgage disability insurance coverage. Mr. Narouz relied on Gowanlock v. The Bank of Nova Scotia et al, 2001 MBQB 160, 157 Man. R. (2d) 124.

67However, Mr. Narouz pleaded in his statement of claim that he was "severely disabled following an accident at work in 2003", that he suffers from "chronic pain, vertebral stenosis, insomnia, depression, and symptoms of post-traumatic stress disorder" and is "incapable of doing the work he did before the accident".

68Moreover, on cross-examination, Mr. Narouz admitted that he received a $140,000 judgment for disability insurance benefits related to the 2003 accident. In a reported decision related to that matter, Master Roger (as he then was) referred to the fact that Mr. Narouz had submitted an expert report which concluded that he was "totally disabled".³ Mr. Narouz also admitted under cross-examination that he is receiving CPP disability benefits, which he applied for in 2020.

69Mr. Narouz did not present any evidence to show that he could have qualified for mortgage disability insurance had Fisgard encouraged him to pursue it. The evidence is that Mr. Narouz has been disabled since 2003. This mortgage was funded in 2021. He would not have been able to purchase insurance related to his pre-existing disabilities.

70Furthermore, there is no legal basis to suggest that Fisgard should have advised Mr. Narouz to obtain disability insurance, even if he would have qualified (which is unlikely). Fisgard is a lender, not a mortgage broker, insurance broker or financial advisor to Mr. Narouz.

71Therefore, the present case is distinguishable from Gowanlock, in which the court found that a bank was selling insurance and providing advice to its customers about insurance. In so doing, the bank assumed a contractual duty and a common law duty of care to provide relevant advice and information which would allow the plaintiffs to make an informed decision. It failed to do so by neglecting to advise the plaintiffs that Ms. Gowanlock's existing policy of disability insurance would terminate upon her signing a consolidation loan agreement.

72In contrast, in the present case, Fisgard was not acting as an agent of an insurance company or selling insurance. Gowanlock is therefore not applicable to the present circumstances.

73Mr. Narouz was working with a mortgage broker and his own lawyer, both of whom could have advised him on various matters related to his mortgage, including whether obtaining mortgage disability insurance was feasible or even possible.

74Therefore, I find that there is no need for a trial on this point because there was no legal requirement for Fisgard to advise Mr. Narouz to obtain disability insurance.

Notice of Sale

75As noted above, on August 9, 2023, Fisgard delivered a notice of sale to Mr. Narouz, and on October 12, 2023, Mr. Narouz made a partial payment of $11,400 towards the indebtedness.

76Mr. Narouz argued that this partial payment invalidated the notice of sale. Specifically, he pleaded in his reply that: "The Notice of Sale dated and signed the 9th of August 2023, is therefore obsolete and is irrelevant and no longer valid because the Notice of Sale dated August 9, 2023, did not account for the new payment made after August 9, 2023."

77Mr. Narouz’s argument is without merit for the following reasons. In Aloi v Spencer et al. and three other actions (1980), 1980 CanLII 1572 (ON HCJ), 29 O.R. (2d) 435 (H.C.), the mortgagor made a very similar argument as Mr. Narouz, which was rejected by the court. Justice Osler held that provided the original notice of sale was an accurate statement of the account, a subsequent mathematical change does not invalidate the notice of sale. To find otherwise would not make sense, in the court’s view, because the state of the account is continually changing as interest continues to run and a different amount is due from day to day;new notices of sale cannot be issued each time the amount changes.

78Mr. Narouz argued that the Court of Appeal for Ontario’s decision in Grenville Goodwin Ltd. et al. v. MacDonald et al. (1988), 1988 CanLII 4737 (ON CA), 65 O.R. (2d) 381 (C.A.) applies to the present facts. In that case, the notice of sale set out the amount owing for principal and other amounts on a property, as well as a large amount owing for municipal taxes. However, the taxes were not owing, since the respondent had instructed the receiver to pay them from the profits generated by the sale of the property. The Court of Appeal held that since the notice of sale greatly overstated the amount that was due by including the municipal taxes, the notice was void.

79The facts in the present case are not similar to those in Grenville Goodwin Ltd. There was no misstatement of the amounts owing. They changed over time as Mr. Narouz made partial payments, but he was made fully aware of the amounts owing. Furthermore, in the present case, prior to June 2024, Fisgard had not paid the municipal taxes owing on the Property. Therefore, they were not included in the notice of sale. When the taxes were paid in June 2024, Mr. Narouz was then required to pay them.

80I also disagree with Mr. Narouz that the Court of Appeal for Ontario’s decision in Re Botiuk and Collison et al. (1979), 1979 CanLII 2060 (ON CA), 26 O.R. (2d) 580 (C.A.) applies to the present case. In Re Botiuk, a notice of sale under a mortgage was sent out without having been signed by either the first mortgagee or her solicitor. After the notice of sale was given to the mortgagor, the first mortgagee agreed to new terms of payment, but these new terms were subsequently breached by the mortgagor. The Court of Appeal held that a notice of sale which, through inadvertence, is sent out without being signed is not a proper notice of sale. In addition, the notice had been invalidated upon the first mortgagee's acceptance of revised payment terms and a fresh notice was required following the mortgagor's subsequent default.

81In the present case, there were no inadvertent errors invalidating the notice of sale, nor were there revised payment terms. The mortgage renewal happened before the defaults occurred and the notice of sale was issued, and did not constitute a revised payment term as in Re Botiuk.

82Mr. Narouz also cited the case of 1173928 Ontario Inc. v. 1463096 Ontario Inc., 2018 ONCA 669, 142 O.R. (3d) 1, in support of his argument that a new notice of sale was required to be issued. In 1173928 Ontario Inc., the mortgage statement was incomplete and incorrect. Nevertheless, the Court of Appeal for Ontario held that the errors in the notice of sale were not fatal to its validity based on the standard of commercial reasonableness. Furthermore, in a statement that is directly relevant to the current proceeding, the Court of Appeal for Ontario stated that the changes in a mortgage statement resulting from payments made by the mortgagor do not require a fresh notice of sale. In the words of the Court of Appeal, at para. 86:

Because a notice of sale is a point-in-time document, it does not become inaccurate with the flow of time. The accounts undoubtedly changed, but the usual process for addressing changes in accounts is by the mortgagor requesting a mortgage statement under s. 22 of the Mortgages Act, not by requiring a fresh notice of sale.

83Thus, Mr. Narouz’s argument that a fresh notice of sale should have been issued after he made a payment of $11,400 to Fisgard on October 12, 2023 is inaccurate.

Notice to Counsel for Mr. Narouz’s Ex-Wife

84Mr. Narouz argued that Fisgard breached its fiduciary duty to him by disclosing information about the present mortgage default proceedings to counsel for his ex-wife. He claims that this has negatively impacted the family law proceedings. He states that the breach of the fundamental obligation of loyalty and confidentiality is so significant that he should be awarded damages in the amount of the outstanding payment on the mortgage loan.

85Respectfully, I disagree with Mr. Narouz. Section 22 of the Family Law Act requires parties, like Fisgard, who are realizing upon a lien or a charge on the matrimonial home to give notice to both spouses. In this case, Mr. Narouz’s ex-wife had a claim to the Property arising from an order issued on July 6, 2020 by MacEachern J. providing that until a final order or Minutes of Settlement was signed, the home at 73 Rita Avenue will act as security for the equalization payment and all other issues claimed in the pleadings.

86Therefore, Mr. Narouz’s ex-wife was entitled to notice under the Family Law Act because her interest in the matrimonial home was being affected by the mortgage default action being taken by Fisgard. It was entirely appropriate and in fact, necessary at law, for Fisgard to inform Mr. Narouz’s ex-wife’s counsel of this action.

87Mr. Narouz seemed to suggest that there was inappropriate communication between counsel for Fisgard and counsel for his ex-wife. I see no evidence of that. Counsel for Mr. Narouz’s ex-wife contacted counsel for Fisgard to provide proof, in the form of judicial orders, that she has an interest in the Property. After receiving notice of the proceedings, counsel for Mr. Narouz’s ex-wife, wrote an email to counsel for Fisgard indicating that she was taking no position on the motion for summary judgment. That is the extent of the communication. There was nothing inappropriate in this correspondence. There was no breach of any fiduciary obligation owed to Mr. Narouz.

88Mr. Narouz refuses to believe that his ex-wife has any claim to the Property despite MacEachern J.’s order to the contrary. However, he is incorrect; his former spouse does have a legal interest in the Property and as such, she was entitled to notice of the present proceedings. There is now a certificate of pending litigation on title.

Conclusion on the Summary Judgment Motion

89Fisgard’s motion for summary judgment is granted. Mr. Narouz’s claim against Fisgard is dismissed. There is no chance that Mr. Narouz would succeed in his claim against Fisgard at trial, and no chance that his defence to Fisgard’s counterclaim would prevail.

Requested Orders

90Fisgard seeks:

(i) An order requiring Mr. Narouz to deliver vacant possession of the Property;

(ii) For leave to have a writ of possession issued if Mr. Narouz fails to deliver vacant possession of the Property;

(iii) An order and direction to the local sheriff to enforce any writ of possession issued;

(iv) An order requiring Mr. Narouz to provide Fisgard with any leases relating to the Property; and

(v) Judgment in the amount of $589,802.59, representing the balance owed by Mr. Narouz on Fisgard’s loan to him, plus interest, fees and legal fees.

91At the hearing of the motion, counsel for Fisgard acknowledged that his request for leave to have a writ of possession issued would have to be adjourned because Fisgard had not yet complied with the notice requirements under r. 60.10(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as explained by Gomery J. (as she then was) in Fisgard Capital II Corp. v. Montgomery, 2022 ONSC 978.

92However, Fisgard is entitled to an order for possession of the Property, an order requiring Mr. Narouz to provide them with any leases relating to the Property, and judgment for the amounts claimed.

93This decision will be translated into French. Once the French translation has been provided to Mr. Narouz, counsel for Fisgard may provide me with a revised draft order for my review and signature.

Costs

94Fisgard has been entirely successful on this motion. As such, they are presumptively entitled to their costs on the motion. Fisgard has provided a Bill of Costs for the Summary Judgment and uploaded it to Case Center. Mr. Narouz has not yet provided his submissions on Fisgard’s request for costs.

95Mr. Narouz may provide his written submissions two weeks after the release of the French translation of this decision. His submissions must not exceed 3 pages, using 1.5 spacing and 12-point font.

Justice K.A. Jensen

Released: March 13, 2025

CITATION: Narouz v. Fisgard Capital Corporation, 2025 ONSC 1600

COURT FILE NO.: CV-23-93627

DATE: 2025/03/13

ONTARIO

SUPERIOR COURT OF JUSTICE

Wadie Narouz

Responding Party

• and -

Fisgard Capital Corporation also known as

Fisgard Asset Management Corporation

Moving party

Footnotes

1. 1See Smit, at para. 22.
2. 2See Smit, at para. 21.
3. 3Wadie Narouz v. Desjardins Financial Security, 2015 ONSC 540, at para. 5.