CIBC Mortgages Inc. v. Harnum, 2022 NSSC 320

SUPREME COURT OF Nova Scotia Citation: CIBC Mortgages Inc. v. Harnum , 2022 NSSC 320 Date: 20221104 Docket: Kentville , No. 505036 Registry: Halifax Between: CIBC Mortgages Inc. Plaintiff v. Sandra Lee Harnum Defendant Judge: The Honourable Justice Gail L. Gatchalian Heard: October 20, 2022, in Kentville, Nova Scotia Counsel: Michael Curry, for the Plaintiff Douglas W. Schipilow , for Jennifer Harnum, Power of Attorney for the Defendant By the Court: Introduction [ 1 ] I must decide whether the Plaintiff, CIBC Mortgages Inc., is entitled to

summary judgment on the evidence. The Defendant, Sandra Lee Harnum, defaulted on her mortgage payments. CIBC Mortgages seeks payment of the amount owed under the mortgage plus interest, and an order for foreclosure, sale and possession of the mortgaged property. Ms. Harnum says in her Statement of Defence that CIBC Mortgages is at fault because it failed to implement automatic mortgage payments from her account as agreed. CIBC Mortgages filed affidavit evidence in support of the motion. Ms. Harnum did not file any evidence in response. Procedural History [ 2 ] CIBC Mortgages filed this Action on March 22, 2021.

In an Order dated July 8, 2021, the Honourable Justice John Keith dispensed with personal service on Sandra Harnum and ordered that service could be effected by handing a copy of the Notice of Action and Statement of Claim to Sandra Harnum’s daughter, Jennifer Harnum, or by posting a copy on the door of Sandra Harnum’s home and mailing it to her. [ 3 ] On April 11, 2022, a Statement of Defence was filed by Jennifer Harnum, Power of Attorney for Sandra Harnum. [ 4 ] On June 17, 2022, CIBC Mortgages filed a motion for

summary judgment on the pleadings, or alternatively,

summary judgment on the evidence. CIBC Mortgages filed affidavit evidence in support of the motion. [ 5 ] The hearing of the motion was adjourned twice. The July 21, 2022 hearing was adjourned on consent. I granted Jennifer Harnum’s request to adjourn the September 14, 2022 hearing, which was opposed by CIBC Mortgages. [ 6 ] The hearing was rescheduled for October 20, 2022. Jennifer Harnum requested a further adjournment. I denied the request in an oral decision. The hearing proceeded. Sandra Harnum had not filed an affidavit or brief. Counsel for Jennifer Harnum had no instructions and therefore did not make oral submissions. Issues [ 7 ] I will consider the motion for

summary judgment on the evidence first. If I find that the motion succeeds, it will not be necessary to consider the motion for

summary judgment on the pleadings. [ 8 ] The first question to ask in a motion for

summary judgment on the evidence is whether there is a genuine issue of material fact. If the answer is “yes,” the motion fails. If the answer is “no,” the second question is whether there is a question of law that requires determination. If the answer to questions 1 and 2 are both “no,”

summary judgment must issue. The onus is on CIBC Mortgages to show that there is no genuine issue of material fact. A material fact is one that would affect the result. If there is no genuine issue of material fact, but there is a question of law, the third question is whether the defence has a real chance of success. The responding party, in this case, Sandra Harnum, must show a real chance of success. If Sandra Harnum fails to show a real chance of success,

summary judgment

issues to dismiss her defence. If the answer to this third question is yes, the fourth question is whether I should exercise the discretion to determine the issue of law. See Civil Procedure Rule 13.04 and Shannex Inc. v Dora Construction Ltd., 2016 NSCA 89 at paras.34 and 36.

Genuine Issue of Material Fact? [ 9 ] The first three paragraphs of the Statement of Claim summarize the particulars of the mortgage as follows: • CIBC Mortgages is the mortgagee and Sandra Harnum is the mortgagor of lands located at 61 Eds Lane, Caribou River, Pictou County, Nova Scotia. • The parties entered into the mortgage on September 29, 2006. • The mortgage secured the amount of $95,250.00. • The mortgage was recorded on October 16, 2006 at the Land Registration Office for Pictou County, Nova Scotia, document number 86372548. • The mortgage encumbered lands identified as PID number 65169716 • The mortgage was renewed on August 5, 2011 and on August 3, 2016. • The current interest chargeable is 2.440% per annum. [ 10 ] CIBC Mortgages claims in paragraph 4 of the Statement of Claim that Sandra Harnum defaulted on her mortgage payments and that the following amounts are due: $47,760.90 in principal and $400.14 in taxes, plus interest. [ 11 ] In the Statement of Defence, Sandra Harnum states that she neither admits nor denies the facts in paragraphs 1, 2 and 3 of the Statement of Claim, which contain the particulars of the mortgage.

Sandra Harnum, in her Statement of Defence, acknowledges that the mortgage went into default in 2020. However, she alleges that she came to an agreement with CIBC Mortgage in or about March of 2019, whereby CIBC Mortgage would implement automatic transfers from her account to pay the mortgage. Sandra Harnum alleges that CIBC Mortgages failed to make these automatic payments, resulting in the mortgage going into default. [ 12 ] In a motion for

summary judgment on the evidence, the pleadings serve only to indicate the issues, and the subjects of a genuine issue of material fact and a question of law depend on the evidence presented: Civil Procedure Rule 13.04(4). A party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence: Civil Procedure Rule 13.04(5). [ 13 ] CIBC filed affidavit evidence in support of the motion for

summary judgment on the evidence attaching: (

a) a copy of the mortgage document executed by Sandra Harnum and recorded at the applicable Land Registration office; (

b) proof of the lands encumbered by the mortgage; and (

c) a

summary and detailed statement of account, demonstrating that the amount of $95,250 was advanced to Sandra Harnum under the mortgage, that the mortgage went into default on June 1, 2020, and that the amounts of $47,760.90 in principal and $400.14 in taxes are outstanding.

The evidence of CIBC Mortgages establishes that, as of September 20, 2022, no payments have been made on the mortgage since the date of default. [ 14 ] Paragraph 4.6 of the mortgage document states that if the mortgagor does not meet one or more of her obligations under the mortgage, including the obligation to make payments, she must immediately pay to CIBC Mortgages all outstanding amounts. Paragraph 4.7 of the mortgage document entitles CIBC Mortgages to require the mortgagor to repay the total loan amount immediately if she does not make any payment required by the mortgage.

Paragraph 11.3 of t he mortgage document states that CIBC may enforce its rights by taking one or more actions at the same time or in any order they choose, should the mortgagor not make one or more payments when required. [ 15 ] Sandra Harnum did not file any affidavit evidence. There is no evidence to establish what she says in her Statement of Defence was an alleged agreement whereby CIBC Mortgages would take automatic payments from her account. [ 16 ] CIBC Mortgages has established that there is no genuine issue of material fact. There is no dispute about the material facts.

Sandra Harnum was a party to a mortgage with CIBC Mortgages that encumbered her property. CIBC advanced $95,250 to Sandra Harnum under the mortgage. She was required to make mortgage payments. The mortgage went into default on June 1, 2020. Sandra Harnum has not made any mortgage payments since that date. The mortgage is at least 27 months in default. Sandra owes CIBC Mortgages $47,760.90 in principal and $400.14 in taxes under the terms of the mortgage. Is There a Question of Law? [ 17 ] There is no question of law that requires determination. The terms of the mortgage require repayment of the amounts claimed.

Conclusion [ 18 ] The motion for

summary judgment on the evidence is granted and the Statement of Defence is dismissed. Costs [ 19 ] CIBC is entitled to its costs of the motion. The Tariff C amount for this motion, scheduled for more than ½ hour but less than ½ day, is between $750 and $1,000.

CIBC Mortgages says that as this motion was “essentially” determinative of the entire matter at issue in this proceeding, there should be a multiplier of two times the maximum Tariff amount pursuant to paragraph 4 of Tariff C, based on the complexity of the matter, the importance of the matter to the parties, and the amount of effort involved in preparing for and conducting the application. CIBC Mortgages acknowledges, however, that it will be making a motion for foreclosure, sale and

possession. As such, this motion was not determinative of the entire matter. In my view, a costs award in favour of CIBC in the amount of $1,000, payable forthwith, will do justice between the parties. Gatchalian, J.