Ian Fitzgerald PLAINTIFF And: TCG Mortgage Corporation FIRST DEFENDANT AND: BLAIR J. ROGERS SECOND DEFENDANT (discontinued) And: Alexander Wells THIRD DEFENDANT, 2021 NLSC 78

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Fitzgerald v TCG Mortgage Corporation , 2021 NLSC 78 Date : June 02, 2021 Docket : 201901G2178 Between: Ian Fitzgerald PLAINTIFF And: TCG Mortgage Corporation FIRST DEFENDANT AND: BLAIR J. ROGERS SECOND DEFENDANT (discontinued) And: Alexander Wells THIRD DEFENDANT Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 11, 2021 Appearances:

Ian Fitzgerald Appearing on his own behalf Michael Cabot Appearing on behalf of the First Respondent Andrew Wadden, Q.C. Appearing on behalf of the Second Respondent Authorities Cited: STATUTES CONSIDERED: Conveyancing Act , R.S.N.L. 1990, c. C-34 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Boone, J. : INTRODUCTION [ 1 ] Ian Fitzgerald owns a residential property that is subject to three mortgages: one initially held by Scotia Mortgage Corporation, another by TCG Mortgage Corporation and another by his mother.

Scotia Mortgage assigned its mortgage to TCG. [ 2 ] Mr. Fitzgerald is in default of his mortgage obligations and has been since some time in 2018. TCG twice issued Court proceedings to enforce those obligations. Alexander Wells acted as solicitor for TCG in those proceedings. Both those proceedings were dismissed by this Court, once due to procedural deficiencies and once because TCG had never demanded vacant possession from Mr. Fitzgerald. Mr. Fitzgerald has not made any payments on his mortgages for several years. He remains in the house. [ 3 ] In this action, Mr. Fitzgerald sues TCG and Mr.

Wells (he discontinued his action against the Second Defendant). His essential complaint is that TCG and Mr. Wells by their actions have prevented him from selling the home, and thus prevented him from moving to take up a job opportunity in British Columbia which would have allowed his children to live closer to their mother in Alberta. He alleges that if not for the TCG Power of Sale proceeding, then he would have been able to sell his home for an amount including a sum paid in digital currency.

He claims the net proceeds from a sale, lost past and future income, compensation for himself from damage to his credit, and for his children from lost time with their mother. He also claims that Mr. Wells intimidated his previous counsel in the power of sale proceeding by threatening that TCG would sue her for negligence if it was unable to enforce its mortgage (which she had placed), defamed him by making a complaint to the Superintendent of Bankruptcy regarding Mr.

Fitzgerald’s conduct related to a bankruptcy that predated the mortgages, and lied to the Court in the previous power of sale proceeding. [ 4 ] Both TCG and Mr. Wells ask the Court to strike the Statement of Claim because it does not disclose a cause of action. [ 5 ] I have decided that both applications should be allowed and these actions should be dismissed because even if Mr. Fitzgerald proves the allegations in his Statement of Claim then he still would not be entitled to the damages that he claims, or any other remedy. ISSUES 1.

What causes of action can be identified in the Statement of Claim and Response to Demand for Particulars? 2. Do those causes of action have any chance of succeeding? ANALYSIS [ 6 ] This is a pleadings motion. The Defendants say that they do not need to present any evidence because the Plaintiff cannot succeed in his claim, even if I presume that he is able to establish all of the facts that he alleges. [ 7 ] The Plaintiff is representing himself in this proceeding. He drafted the Statement of Claim and Responses to Demand for Particulars without the assistance of legal counsel.

I therefore carefully reviewed his pleadings and I asked him questions during his argument on these motions in order to ensure that I fully understood his complaints and the reasons that he believes that TCG and Wells

should pay him damages. The Claim for Damages due to Interference with Sale of Property [ 8 ] This is the main basis for Mr. Fitzgerald’s claims, and the only basis for his action against TCG. He says that because Power of Sale proceedings were started he could no longer sell his house. [ 9 ] Mr. Fitzgerald says that in 2017 he decided to move to British Columbia. He felt that he could not afford the cost of a move and of acquiring a place to live there while he was paying his mortgage instalments.

Therefore, he allegedly reached an understanding with Scotia Mortgage that he would stop paying instalments, but then pay all of his debt, including arrears, when he sold his home. He says that TCG nevertheless acted on its power of sale under its mortgage because he was in default of payment to Scotia Mortgage, and then refused to listen to him when he told TCG of his understanding with Scotia Mortgage. According to Mr.

Fitzgerald, TCG “jumped the gun” on its power of sale proceeding because it was trying to take advantage of a temporary gap in registration created by inadvertent release of the mortgage to his mother. He also claims that TCG refused to take any payments from him and was determined to go ahead with power of sale proceedings. [ 10 ] Mr. Fitzgerald’s claims cannot succeed. The actions of TCG did not preclude him from selling his home, moving with his children to British Columbia and taking a job there. The power of sale proceeding does not legally impede Mr.

Fitzgerald from selling the house and redeeming the mortgages until TCG sells the property or obtains vacant possession from him. There is no cause of action on the basis of which Mr. Fitzgerald can claim the damages he seeks in this action as a result of the failure of TCG to effectually enforce his obligations. Any failure on the part of TCG to comply with its obligations under the mortgages or the Conveyancing Act , R.S.N.L. 1990, c. C-34 , can, pursuant to s. 12 of that Act , be taken into account on any action for deficiency.

The Act also restricts the ability of the mortgagee in respect of the sale price of the home. Moreover, the Act provides in s. 14(6) that a mortgagee “shall not be answerable for an involuntary loss happening in or about the exercise or execution of the power of sale ….” [ 11 ] The Statement of Claim against TCG and Mr. Wells based on interference with the sale of the property is therefore struck because even on a generous reading of the factual allegations made by Mr. Fitzgerald it fails to disclose a cause of action on which he could possibly succeed in his claim for damages.

Defamation [ 12 ] The Statement of Claim alleges that Mr. Wells “wrote a complaint to the Superintendent of Bankruptcy …with the intent to damage [Mr. Fitzgerald’s] good name and cause further stress and undue hardship to [Mr. Fitzgerald]”. [ 13 ] The only possible cause of action in which this allegation could fit is one for defamation. However, Mr. Fitzgerald does not allege that the complaint by Mr. Wells was false, which is required for a successful plea in defamation. I discussed this with Mr. Fitzgerald during argument and he never alleged that the complaint by Mr.

Wells was false. [ 14 ] The Court should not strike a Statement of Claim for lack of a cause of action in a circumstance where the provision of particulars could cure the deficiency. I might have allowed Mr. Fitzgerald a chance to consider whether he wished to make a specific amendment to allege that the complaint to the Superintendent was false, but counsel for Mr. Wells informs me that this same allegation is the subject of a separate defamation action by Mr. Fitzgerald against Mr. Wells. [ 15 ] Therefore, the Statement of Claim claiming damages from Mr. Wells based on a complaint he made about Mr.

Fitzgerald to the Superintendent of Bankruptcy is struck. Intimidation [ 16 ] The Statement of Claim alleges that Mr. Wells threatened legal action against Mr. Fitzgerald’s legal counsel during the first power of sale proceeding. Mr. Fitzgerald elaborated on this allegation in a Reply to a Demand for Particulars and during argument. He said that his counsel in the power of sale proceeding had acted for him and for TCG in placing the TCG mortgage. Mr.

Wells allegedly said to her that if the power of sale proceeding was not successful due to a deficiency in registration, then TCG would hold her responsible for its resulting losses. [ 17 ] The only cause of action which would fit this allegation of fact and result in an award of damages is the tort of intimidation. A successful cause of action for intimidation requires a threat to take unlawful action with which the recipient complied causing loss to the plaintiff. In this case, the alleged threat seems to be one that was to seek lawful remedy. More importantly, Mr.

Fitzgerald conceded during argument that he suffered no loss as a result of the alleged threat because he successfully argued against the power of sale proceeding. [ 18 ] The Statement of Claim claiming damages for threats allegedly made by Mr. Wells is struck. Misrepresentation [ 19 ] Mr. Fitzgerald alleges in the Statement of Claim and Response to a Demand for Particulars that, during the initial power of sale proceeding, Mr. Wells lied by denying to the Court that he had refused to take mortgage payments from Mr. Fitzgerald.

In the Statement of Claim he said that this could constitute “economic fraud” and “perjury”. There is no action for perjury. An action for misrepresentation would require proof of damage. The power of sale proceeding was dismissed, so, even if Mr. Fitzgerald did establish the facts alleged it would not result in any entitlement to damages. [ 20 ] The Statement of Claim based on alleged lies and fraud is struck.

CONCLUSION and DISPOSITION [ 21 ] The Statement of Claim does not disclose a cause of action against either TCG or Mr. Wells which has any chance of success. Therefore, the Statement of Claim is struck pursuant to Rule 14.24(1)(a), and the action dismissed against both Defendants. The Defendants shall have their costs, taxed on Rule 55, Appendix 1, Column 3 of the Rules of the Supreme Court, 1986 . _____________________________ Daniel M. Boone Justice