COURT OF APPEAL FOR ONTARIO
CITATION: 2137073 Ontario Inc. v. Furney, 2024 ONCA 37
DATE: 20240117
DOCKET: COA-23-CV-0258
Roberts, Coroza and Gomery JJ.A.
BETWEEN
2137073 Ontario Inc., Arye Lankar, Lina Balian, Shawn Gabiel, Elena Keimakh and 2380376 Ontario Ltd.
Plaintiffs (Respondents)
and
Alex Furney and Maryam Furney also known as Miriam Furney
Defendants (Appellants)
Doug Laframboise, for the appellants
Daniel Campoli, Jordan D. Sobel and Avi Freedland, for the respondents
Heard and released orally: January 16, 2024
On appeal from the judgment of Justice Michael Dineen of the Superior Court of Justice, dated February 9, 2023.
REASONS FOR DECISION
[1] The respondents were granted summary judgment for all amounts due from the appellants, including full indemnity costs, under the second mortgage secured against the appellants’ property. The motion judge also struck out the appellants’ statement of defence and counterclaim without also granting leave to amend.
[2] At the outset of the hearing of the appeal, we dismissed the appellants’ adjournment request to allow them to bring a motion for fresh evidence. This appeal has been outstanding for some time. The appellants were represented by counsel (not Mr. Laframboise) who filed their appeal materials. The first scheduled hearing of the appeal on October 18, 2023 was adjourned at the appellants’ request to today’s hearing date and was marked peremptory to the appellants. The appellants have had months to seek to file fresh evidence. In our view, this constituted a further attempt by the appellants to delay these proceedings.
[3] With respect to the appeal, the appellants submit that the motion judge erred in granting summary judgment to the respondents and in striking out their statement of defence and counterclaim without granting leave to amend. They argue further that the motion judge erred in granting judgment when there were other outstanding claims against some of the respondents by them and other mortgagees allegedly with priority over the respondents’ mortgage.
[4] We do not accept that the motion judge made any reversible error.
[5] Having concluded that the appellants were liable to the respondents under the mortgage, the motion judge granted judgment to the respondents. The evidence amply supported the motion judge’s conclusion, including that the appellants entered into the mortgage agreement with the respondents, the respondents advanced the amounts claimed under the mortgage, and the appellants were in default. No further issues regarding the appellants’ liability to the respondents under their mortgage remained undetermined. It is undisputed that the appellants have not sought to date to put the mortgage into good standing.
[6] The motion judge also found that the allegations in the statement of defence and counterclaim were “so unparticularized and poorly explained” that he could not “discern their nature or any factual basis for them”, noting that the appellants had at times, during the course of the proceedings, suggested that they would seek to amend the pleadings, but had not done so.
[7] Finally, the motion judge rejected the appellants’ arguments that other independent claims that may have been commenced by the appellants and other mortgagees in other proceedings justified delaying judgment to the respondents. He noted that judgment in this action did not foreclose the appellants and others from pursuing any such claims.
[8] We are not persuaded that the motion judge erred. The appellants have not shown that there was a risk of inconsistent findings or other prejudice if judgment were granted to the respondents before the adjudication of other unrelated claims. Nor was there any basis to grant leave to amend. The appellants’ pleadings were unintelligible, and they failed to seek leave to amend or provide proposed amended pleadings indicating that the serious deficiencies could be corrected. We see no basis to intervene.
[9] The appeal is therefore dismissed.
[10] In accordance with the terms of their mortgage, the respondents are entitled to their substantial indemnity costs of this appeal from the appellants in the following all-inclusive amounts:
1. 2137073 Ontario Inc. – $11,125.98;
2. Arye Lankar, Lina Balian, Shawn Gabiel, and Elena Keimakh – $11,125.98; and
3. 2380376 Ontario Ltd. - $7,367.60.
“L.B. Roberts J.A.”
“S. Coroza J.A.”
“S. Gomery J.A.”