Supreme Court

SUPREME COURT OF Nova Scotia

Citation:  Grand Mortgage Investment Corporation v. Publicover, 2015 NSSC 5

Date: 20150109

Docket:  Hfx No. 420839

Hfx No. 420842

Hfx No. 422341

Hfx No. 422342

Registry: Halifax

Between:

                             Grand Mortgage Investment Corporation

Plaintiff

v.

Donald Elias Publicover of 34 Melody Drive,

Brookside, Nova Scotia, B3T IT3

Defendant

Robertson, J.:

[1]             The plaintiff seeks orders for summary judgment and orders striking the defendant’s defences pursuant to Civil Procedure Rules 13 and 88.  The plaintiff also seeks orders of foreclosure and sale under Rule 72.

[2]             The matter was to be heard on April 17, 2014, but was postponed by consent order to allow the defendant to file amended statements of defence, which were filed June 11, 2014.

[3]             The court has before it the affidavit evidence of the defendant, Donald Elias Publicover, and the affidavit evidence of Keith Cummings on behalf of the plaintiff Grand Mortgage Investment Corporation and the affidavit of John Christopher Dopp on behalf of the plaintiff.

[4]             The application pertains to four mortgages made between Donald Publicover as mortgagor and Grand Mortgage Investment Corporation as mortgagee for mortgage loans secured by his properties located at West Dover in Halifax County, the particulars of which are as follows:

Hfx No. 420842 – Mortgage in the amount of $240,250 dated October 31, 2012.  Secured by Lot No. 3, 6922 Prospect Road.  PID No. 40260580.  Assessed at $220,000.  Amount claimed as of October 21, 2013 - $251.693.51

Hfx No. 420839 – Mortgage in the amount of $140,000 dated December 14, 2012.  Secured by Civic No. 100 West Dover Road.  PID No. 40067936.  Assessed Value $11,900.  Amount claimed as of October 21, 2013 - $145,640.16

Hfx No. 422341 – Mortgage in the amount of $140,000 dated January 16, 2013.  Secured by Civic No. 6916 Prospect Road.  PID No. 40304727.  Assessed value $98,000.  Amount claimed as of October 21, 2013 - $145,640.16

Hfx No. 422342 – Mortgage in the amount of $140,000 dated April 24, 2013.  Secured by land located at Main Road, West Dover.  PID No. 40067209.  Assessed value $68,000.  Amount claimed as of October 21, 2013 - $145,640.16

[5]             Defence counsel has relied on the following authorities:  Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44; Body Shop Canada Ltd. v. Dawn Carson Enterprises Ltd., 2010 NSSC 25; Murphy v. Murphy, 2009 NSSC 138; Canada (Attorney General) v. Lameman, [2008] 1 S.C.R. 372;  Cook’s Oil Company Ltd. v. Parkhill Construction (1980) Ltd., 2005 NSCA 36; MacNeil v. Bethune, 2006 NSCA 21; Wolfson Estate v. Wolfson, [2005} O.J. No. 6083; Gurarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; Little Island Fisheries Ltd. v. Royal Harbour Seafoods Inc., 2009 NSSC 301; and Papaschase Indian Band No. 136 v. Canada (Attorney General), [2004] 4 C.N.L.R. 110 (Alta.Q.B.).

[6]             Counsel for the plaintiff has relied on Central Guaranty Mortgage Corporation v. Eastland Development Limited et al. (1991) 109 N.S.R. (2d) 200 and Royal Bank of Canada v. Malouf, [1932] 2 W.W.R. 526 [Sask C.A.].

[7]             In more recent cases the law of summary judgment motions has been addressed.  The Nova Scotia Court of Appeal extensively canvassed the principles extant on a motion for summary judgment on the evidence in Coady v. Burton Canada Co., 2013 NSCA 95.  As noted by the court “(T)he legal principles applicable to a motion for summary judgment are not complicated.”  At para. 87, the Court of Appeal laid out the principles related to summary judgment as follows:

[87]        Before turning to the final issue raised on appeal, I wish to provide a quick summary of the law as it presently stands in Nova Scotia concerning summary judgment litigation.   From the jurisprudence to which I have referred as well as the case law cited therein, a series of well-established legal principles have emerged.  I will list these principles in the hope that their enumeration will serve as a helpful checklist or template to guide counsel and judges in their application.  In Nova Scotia:

1.          Summary judgment engages a two-stage analysis.       

2.         The first stage is only concerned with the facts.  The judge decides whether the moving party has satisfied its evidentiary burden of proving that there are no material facts in dispute.  If there are, the moving party fails, and the motion for summary judgment is dismissed.

3.         If the moving party satisfies the first stage of the inquiry, then the responding party has the evidentiary burden of proving that its claim (or defence) has a real chance of success.  This second stage of the inquiry engages a somewhat limited assessment of the merits of the each party’s respective positions. 

4.         The judge’s assessment is based on all of the evidence whatever the source.  There is no proprietary interest or ownership in “evidence”. 

5.         If the responding party satisfies its burden by proving that its claim (or defence) has a real chance of success, the motion for summary judgment is dismissed.  If, however, the responding party fails to meet its evidentiary burden and cannot manage to prove that its claim (or defence) has a real chance of success, the judge must grant summary judgment.

6.         Proof at either stage one or stage two of the inquiry requires evidence.  The parties cannot rely on mere allegations or the pleadings.  Each side must “put its best foot forward” by offering evidence with respect to the existence or non-existence of material facts in dispute, or whether the claim (or defence) has a real chance of success.

7.         If the responding party reasonably requires disclosure, production or discovery, or the opportunity to present expert or other evidence in order to “put his best foot forward”, then the motions judge should adjourn the motion for summary judgment, either without day, or to a fixed day, or with conditions or a schedule of events to be completed, as the judge considers appropriate, to achieve that end.

8.         In the context of motions for summary judgment the words “genuine”, “material”, and “real chance of success” take on their plain, ordinary meanings.  A “material” fact is a fact that is essential to the claim or defence.  A “genuine issue” is an issue that arises from or is relevant to the allegations associated with the cause of action, or the defences pleaded.  A “real chance of success” is a prospect that is reasonable in the sense that it is an arguable and realistic position that finds support in the record, and not something that is based on hunch, hope or speculation.

9.         In Nova Scotia, CPR 13.04, as presently worded, does not create or retain any kind of residual inherent jurisdiction which might enable a judge to refuse to grant summary judgment on the basis that the motion is premature or that some other juridical reason ought to defeat its being granted.  The Justices of the Nova Scotia Supreme Court have seen fit to relinquish such an inherent jurisdiction by adopting the Rule as written.  If those Justices were to conclude that they ought to re-acquire such a broad discretion, their Rule should be rewritten to provide for it explicitly.

10.       Summary judgment applications are not the appropriate forum to resolve disputed questions of fact, or mixed law and fact, or the appropriate inferences to be drawn from disputed facts.

11.       Neither is a summary judgment application the appropriate forum to weigh the evidence or evaluate credibility.

12.       Where, however, there are no material facts in dispute, and the only question to be decided is a matter of law, then neither complexity, novelty, nor disagreement surrounding the interpretation and application of the law will exclude a case from summary judgment.

[8]             The principles thus summarized lead to a two-step process:

          1.       Firstly, the applicant must show that there is no genuine issue of material fact requiring trial.

          2.       Once this is shown, the respondent must demonstrate that their claim or defence has a real chance of success.

[9]             The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, discussed the first state of the test as being a determination of whether there is a “genuine issue requiring trial” at paras. 49-50:

49     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.

50     These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[10]        Having heard the argument of counsel and having read the pleadings and the affidavit evidence before me, I can say that there is no genuine issue of material fact requiring trial.

[11]        In this case, the defendant has acknowledged to the court that he owes the monies secured by the mortgages, as set out in the plaintiff’s foreclosure documents.  He does not deny that he borrowed the funds and pledged his various properties as security for the indebtedness.  Rather, in paras. 3-9 of the amended defence the defendant advances the novel defence that he made improvident business decisions respecting his planned recreational development of the property and that the plaintiff ought to have known he would be unable to meet his obligations under the mortgages.  Mr. Publicover sought the assistance of a mortgage broker whom he has not joined in this action.  The defendant lays blame for his failed enterprise at the feet of the mortgage broker whom he says ought to have known he did not have the necessary resources or ability to repay the debt. 

[12]        The plaintiff does not argue non est factum.  The amended defence does not provide any particulars with respect to the broker’s alleged misrepresentations nor does it provide any particulars of the plaintiff’s “own negligence, breach of contract or negligent misrepresentation.”  Mr. Publicover’s own affidavit evidence does not provide any further detail or clarification.  The plaintiff’s allegation respecting the mortgage broker’s fee is not material to the plaintiff’s claim nor is it supported in evidence.

[13]        Defence counsel candidly acknowledged that by the defence, he sought more time for the defendant to sell properties and meet its obligations under the mortgages. 

[14]        In my view, the plaintiff’s claim remains unchallenged. There is no genuine issue of material fact requiring trial.  The defendant has failed to meet the evidentiary burden required of him.  His defence stands no chance of success.

[15]        In the result, the plaintiff’s order for summary judgment is granted.  The court is prepared to sign the orders for foreclosure and sale of the subject properties.

[16]        I will be happy to hear submissions on costs in writing failing any agreement between the parties.

                                                          Justice M. Heather Robertson