Does the Mortgagee owe the borrower any ‘fiducuary’ duty? In other words, is the mortgage just a contract, like buying gas or groceries?
Here is the latest ONCA case saying that the Mortgagee does not owe any ‘fiduciary’ duty in this particular case.
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TD Bank possessed a mortgage on Mortgagor’s property. Mortgagor defaulted. TD Bank moved for summary judgement. MacLeod J. granted summary judgement to TD (January 13 2017) for the amount and for possession for the purpose of sale.
The Mortgagor then commenced an action (January 22 2018) for a stay on the MacLeod possession order. The Mortgagor alleged:
- that TD owed a fiduciary duty to caution the Mortgagor at time of renewal that there was no insurance on the property and that the Mortgagors could be personally liable.
- that the insurer owed various fiduciary duties to TD Bank and to Mortgagor.
The Bank denied any fiduciary duty and moved for summary judgment and argued that all of the Mortgagor’s claims should have been raised in the action concluded by the MacLeod Order.
Corthorn found that the unrepresented Mortgagor was aware of summary judgment requirements. TD has efficiently asked awareness questions in the cross-examination.
The Mortgagor asserts that he texted TD Bank prior to his mortgage renewal asking about whether he needed to have insurance or whether insurance would somehow be included in the renewal package[1]
Corthorn does not draw the inference from the texts that the Mortgagor wants drawn. Corthorn rather says:[2]
- that the text messages do not absolve the Mortgagor of the Mortgagor’s insurance obligation and the texts do not even suggest that the Mortgagor thinks such.
- the texts do not say the Bank is undertaking an insurance obligation.
- the texts do not say that the Insurer and the Bank would arrange the insurance between themselves.
As to the allegedly fiduciary relation between TD and Mortgagor, Corthorn says:
The ONCA was not prepared to provide free legal counsel:
- [7] …a litigant is not entitled to representation simply because they are unrepresented as there is no broad general right to legal counsel in Canada (Christie v. British Columbia (Attorney General), 2007 SCC 21, [2007] 1 S.C.R. 873 at paras. 23, 26).
The ONCA did not accept a bald assertion of disability by the Mortgagor as requiring free legal counsel. More would have to be proved:
- [8]…It was the appellants’ onus to establish that [the Mortgagor] was “mentally incapable” and to establish the extent of her incapacity if it existed (Costantino v. Costantino, 2016 ONSC 7279, [2016] O.J. No. 5963 at para. 38; Sosnowski v. Johnson, [2006] O.J. No. 3731 (Ont. C.A.), at para. 2). They failed to do so. Accordingly, the motion judge was under no obligation to see that either of the appellants were represented before her. This ground of appeal must therefore fail
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more mortgage enforcement here
[1] this would have ostensibly raised the reliance interest
[2] email and text evidence is usually central in civil litigation. One party seeks to raise inferences from text. Corthorn shows how to demonstrate the distance between the text words and the inference being sought.
