Court File and Parties

Barrie Court File Nos.: CV-24-1021 and CV-25-2377 Date: 2025-08-25 Superior Court of Justice – Ontario

Court File No.: CV-24-1021 Re: Joseph Spiteri, Plaintiff And: Sandra Mashin, Defendant

Court File No.: CV-25-2377 And Re: Nicholas Mashin, Plaintiff And: Joseph Spiteri, Defendant

Before: The Hon. Mr. Justice R.E. Charney

Counsel: Fay A. McFarlane, Counsel for Joseph Spiteri Nicholas Mashin, Self-Represented

Heard: August 25, 2025

Endorsement

Background

[1] Joseph Spiteri, the Plaintiff in action CV-24-1021, brings this motion under Rules 37.14, 39.01(6), and 59.06 for an Order setting aside the Endorsement of Justice Vallee dated August 6, 2025.

[2] This motion relates to Mr. Spiteri's mortgage action against Sandra Mashin (CV-24-1021). The history of that action is as follows:

July 7, 2025 Summary Judgment Motion

[3] On July 7, 2025, Justice Sutherland heard Mr. Spiteri's summary judgment motion in relation to a defaulted mortgage registered on November 10, 2022. The Plaintiff sought judgment in the amount of $578,007.84 plus an order for a writ of possession.

[4] Justice Sutherland's Decision, released on July 10, 2025 (Spiteri v. Mashin, 2025 ONSC 4048), indicates that the Defendant, Sandra Mashin, was in attendance at the motion. She did not serve any responding materials. The Defendant's lawyer did not appear and advised the Court that he would not be attending "due to not being instructed to attend". The Defendant's spouse, Nicholas Mashin, was also in attendance. He requested an adjournment to serve and file a motion to be added as a party. That request was denied due to the lateness of the request and the history of the litigation. There were peremptory orders in place for the hearing of the motion.

[5] The Defendant did not dispute that the mortgage was in default and that the monies were owed. She acknowledged that the mortgage amount was $480,000 at 11.99% per annum interest. The mortgage matured on November 1, 2023, and the mortgagor made no payments since that date. The mortgage was not renewed.

[6] Justice Sutherland concluded that there was no genuine issue for trial and judgment was granted to the Plaintiff. He stated, at paras. 18-19, 22:

There is no issue that the monies are owed. The mortgage matured in November 2023 and there have been no payments on the mortgage since November 2023. The dispute is mainly that of the quantum of the charges of the plaintiff on the mortgage. The defendant, as stated by Mr. Mashin, opposes any costs award.

The mortgage clearly indicates the interest accrues on the mortgage at the rate of 11.99% per annum. The terms of the mortgage do have terms for late charges and other fees.

The defendant in her pleading suggests that the first mortgagee secured the Property with an incorrect amount. But how this affects the plaintiff's mortgage, which is a second mortgage, is unclear. The defendant has not provided any legal basis that the issue with the first mortgagee somehow affects the second mortgagee's ability to collect on the amount owing under that mortgage.

[7] Sutherland J. granted judgment in the amount of $578,007.84, plus costs ($23,000), and concluded that the Plaintiff was entitled to an order for possession of the property.

July 29, 2025 Motion to Stay

[8] On July 29, 2025, the Defendant brought an urgent ex parte motion seeking an order staying the enforcement of Sutherland J.'s judgment and an order granting Nicholas Mashin leave to be added as a party to the action.

[9] This motion was dismissed by Di Luca J., who held:

This motion is an impermissible collateral attack on Sutherland J.'s decision both on the merits of summary judgment and on the decision re: adjournment to be added as a party. The motion is dismissed.

July 30, 2025 Motion to Stay

[10] On July 30, 2025, the Defendant brought another motion to stay enforcement of the summary judgment and writ of possession ordered by Sutherland J. "pending further order of this Court or the Court of Appeal". No Notice of Appeal had yet been filed.

[11] Speyer J. considered the test for staying a court order pending appeal, and dismissed the motion for a stay, stating:

I find that there is not a serious question to be determined on any appeal that may be filed by the defendant…While the defendant disputes the exact amount that she owes the plaintiff, that dispute relates to relatively small amounts claimed…The defendant does not have any arguable ground of appeal that would result in the judgment against her being set aside in any significant amount.

The moving party will not suffer irreparable harm if the stay is denied. I understand that the defendant will be required to leave the property, but that result is inevitable.

The balance of convenience favours the plaintiff. He is 71 years of age, and has seen no return on the money that the defendant willingly received from him and no repayment of the principle. He needs to recoup as much of his investment as he can…Any delay in selling the property will jeopardize the plaintiff's ability to recover the debt owed to him.

August 5, 2025 Statement of Claim

[12] Not to be deterred, on August 5, 2025, Nicholas Mashin commenced a new action against Joseph Spiteri (CV-25-2377) in which Mr. Mashin seeks an order declaring that he has an "equitable interest" in the property that was the subject of Mr. Spiteri's mortgage action, an order that Mr. Spiteri's mortgage "is void and unenforceable", and an order "setting aside or vacating the mortgage" and restoring possession of the property to Mr. Mashin. Mr. Mashin takes the position that the mortgage granted to Mr. Spiteri is a second mortgage, and that the second mortgage cannot be enforced as long as the first mortgage remains current.

[13] The Statement of Claim includes a cryptic reference to the earlier proceedings, stating that, on July 7, 2025 "the lender Defendant obtained judgment and possession through a summary judgment motion…On July 31, 2025, the Plaintiff and his spouse were evicted. The Plaintiff was not a party to the action and now brings this new proceeding to assert his independent equitable rights and seek return of possession".

August 6, 2025 Motion for Certificate of Pending Litigation

[14] On August 6, 2025, Mr. Mashin, now the Plaintiff in his new action, brought an urgent ex parte motion in writing for a Certificate of Pending Litigation. The motion came before Vallee J., who found that the affidavit material filed in support of the motion was inadequate. The ex parte motion material did not include or even make any reference to the previous decisions of Sutherland J., Di Luca J. or Speyer J.

[15] Vallee J. ordered the Plaintiff to serve the Defendant with the motion material, but also granted an interlocutory injunction prohibiting the defendant from entering "into a binding agreement of purchase and sale until the court had the opportunity to consider the responding materials and provides an endorsement". Her Endorsement read:

The plaintiff's affidavit is inadequate. In the absence of a listing for sale, I am not convinced that service of the motion will trigger an immediate sale. The plaintiff shall prepare a further affidavit attaching the documents set out above. The plaintiff shall serve the motion documents on the defendant and file an affidavit of service. The defendant shall respond in accordance with the Rules. The defendant shall not enter into a binding agreement of purchase and sale until the court has an opportunity to consider the responding materials and provides an endorsement.

Motion to Set Aside the August 6, 2025 Order

[16] Mr. Spiteri now moves to set aside the August 6, 2025 Order. It was made without notice to Mr. Spiteri, and Mr. Mashin did not make full disclosure as required by Rule 39.01(6), which provides:

Where a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application.

[17] In my view, Mr. Mashin's failure to disclose the Endorsements of Sutherland J., Di Luca J. or Speyer J. is sufficient grounds for setting aside the August 6, 2025 Order. I am satisfied that the Order would not have been issued had those decisions been disclosed to the judge considering the August 6, 2025 motion.

[18] Mr. Spiteri has been presented with an offer that he is now prevented from accepting because of the August 6, 2025 Endorsement.

[19] It is clear that Mr. Mashin's new action is an abuse of process and another impermissible collateral attack on Sutherland J.'s decision on the summary judgment motion. This new action seeks to relitigate the exact issues decided by Sutherland J. in his decision on the summary judgment motion. Since this new action is an abuse of process, Mr. Mashin is not entitled to a Certificate of Pending Litigation or an interlocutory injunction.

[20] I also note that, as a decision on an interlocutory motion made without notice, Vallee J.'s interlocutory injunction could not be granted for a period of more than 10 days (Rule 40.02(1)). It should have expired on August 16, 2025 unless extended by the Court.

Conclusion

[21] This Court Orders:

a. The Endorsement of Vallee J. dated August 6, 2025 is set aside.

b. The Plaintiff, Nicholas Mashin, shall seek the court's approval prior to any further motions being brought by him.

[22] Costs of this motion are fixed at $1,200 payable by Mr. Mashin to Mr. Spiteri within 30 days, this amount to be added to the outstanding amount in the judgment of Justice Sutherland.

Justice R.E. Charney

Date: August 25, 2025