SUPREME COURT OF PRINCE EDWARD ISLAND

Transcription

1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: Simpson v. Carewco et ors PESC 07 Date: Docket: S1-GS Registry: Charlottetown Between: Timothy G. Simpson And: Plaintiff Carewco Holdings Ltd. and Heronsfield Management Inc. and Metro Credit Union Ltd. and Stewart McKelvey Stirling Scales and Keith Boswell Q.C. Defendants BEFORE: The Honourable Justice Wayne D. Cheverie Appearances: Plaintiff, self-represented Graham Stewart Q.C., solicitor for Metro Credit Union Ryan MacDonald, solicitor for Stewart McKelvey Stirling Scales & Keith Boswell Q.C. Jonathan Greenan, solicitor for Carewco Holdings Ltd. and Heronsfield Management Inc. Place and date of hearing Place and date of judgment Charlottetown, Prince Edward Island November 19, 2009 Charlottetown, Prince Edward Island February 2, 2010

2 Citation: Simpson v. Carewco et ors PESC 07 S1-GS Between: Timothy G. Simpson And: Plaintiff Carewco Holdings Ltd. and Heronsfield Management Inc. and Metro Credit Union Ltd. and Stewart McKelvey Stirling Scales and Keith Boswell Q.C. Defendants Supreme Court of Prince Edward Island Before: Cheverie J. Heard: November 19, 2009 Judgment: February 2, 2010 [17 pages] Practice - Rule 20 - motions by various defendants for summary judgment granted - no genuine issue for trial - plaintiff failed to discharge burden of establishing any real chance of success - all actions dismissed with costs to defendants. RULE CONSIDERED: Prince Edward Island Rules of Civil Procedure, Rule 20. CASES CONSIDERED: Connick v. Ramsay et ors., [2008] PESCTD 42; MacPherson v. Ellis, 2005 PESCAD 10; M. F. Schurman Co. v. Westland Homes Ltd. (1993), 101 Nfld. & P.E.I.R. 122 (PEISCAD); Bank of Montreal v. Masseau, 2004 PESCTD 9; Simmonds v. Murphy (1996), 137 Nfld. & P.E.I.R. 332 (PEISC-TD); UPEI v. Stevenson & ors PESCTD 08; Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.); Nadvornianski v. Stewart Title Guaranty Co. (2006), 82 O.R. (3d) 149 (Ont.S.C.J.). Plaintiff, self-represented Graham Stewart Q.C., solicitor for Metro Credit Union Ryan MacDonald, solicitor for Stewart McKelvey Stirling Scales & Keith Boswell Q.C. Jonathan Greenan, solicitor for Carewco Holdings Ltd. and Heronsfield Management Inc.

3 Cheverie J.: [1] On September 23, 2008, Timothy G. Simpson, the plaintiff ( Simpson ) issued a statement of claim against the following defendants: Carewco Holdings Ltd. ( Carewco ), Heronsfield Management Inc. ( Heronsfield ), Metro Credit Union Ltd. ( Metro ), Stewart McKelvey Stirling Scales ( Stewart McKelvey) and Keith Boswell Q.C. ( Boswell ). Over the years, Simpson had a variety of business dealings with the defendants. From the evidence submitted to the court, it appears Metro was his banker; Stewart McKelvey and Boswell were his lawyers; and Carewco and Heronsfield provided him with interim financing. [2] Simpson s statement of claim seeks a variety of relief against the various defendants. He seeks an order for certificate of pending litigation; an order for payment of debt in various amounts; damages for personal suffering and loss of future revenue; an order for payment (really, reimbursement) of an excessive legal account rendered by Metro s lawyer relevant to the mortgage sale of Simpson s property; punitive damages, pre-judgment and post-judgment interest, and his costs of this action. Each of the defendants moved for an order for summary judgment against Simpson. For the reasons that follow, I conclude that each of the defendants is entitled to an order for summary judgment against the plaintiff, with costs, because in each case it has been established to my satisfaction that there is no genuine issue for trial. Further, Simpson has failed to establish there is any evidence which offers him a real chance of success based on his claims as pleaded. [3] I propose to deal with the motions before the court as follows: The motions 1. Identify each of the three motions; 2. Set out the law applicable to each of the motions; 3. Apply the law to the facts relevant to each motion. [4] Metro moves for an order under Rule 20 of the Rules of Civil Procedure for summary judgment dismissing all or part of the claim against it upon the following grounds: (a) (b) The statement of claim and pleadings disclose no cause of action against Metro; The statement of claim and pleadings disclose no material fact in issue which would create a genuine issue for trial; and

4 Page: 2 (c) The evidence discloses no material fact in issue which would create a genuine issue for trial. [5] Stewart McKelvey and Boswell request an order dismissing Simpson s claim pursuant to Rule 20. In the alternative, they request an order striking out paras. 1(a) and 19 of Simpson s claim which seeks an order for a Certificate of Pending Litigation as against Stewart McKelvey and Boswell. [6] While setting out very specific grounds for its motion, Stewart McKelvey and Boswell rely on their assertion there is no genuine issue to be tried in this matter and therefore Simpson s claim should be dismissed in its entirety. They rely on the terms and circumstances surrounding the agreement made among Simpson and all defendants on September 26, 2005 as the key ground in support of their motion. [7] Carewco and Heronsfield also seek an order dismissing Simpson s claim against them pursuant to Rule 20 upon the grounds that: (a) (b) (c) Simpson entered into an agreement with Carewco, Heronsfield, Metro, and Stewart McKelvey dated September 26, 2005; Simpson failed to satisfy his indebtedness to Carewco, Heronsfield, and Metro as set out in the agreement, and as such, Carewco, Heronsfield, and Metro acted in accordance with the terms of the agreement; There is no genuine issue for trial in this matter and Simpson s claim should be dismissed as against Carewco and Heronsfield. Summary judgment - the applicable law [8] In the interests of time and costs, all three motions were heard together. Each of the moving parties put forth their arguments and then Simpson was allowed to respond to all three at once. The applicable law relevant to each of these motions is the same. Rule 20 has been interpreted and applied in numerous cases by this Court. [9] In the case of Connick v. Ramsay et ors., [2008] PESCTD 42, I had the opportunity to summarize the law on summary judgment motions in this jurisdiction. Since there have been no changes to the law in this area since the Connick case, I believe the following paragraphs from that decision continue to guide summary judgment motions: [21] There is no dispute between the parties as to the law to be applied on a motion for summary judgment. That law is well settled and begins with

5 Page: 3 Rule 20. The relevant sections of that rule are: (3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim (1) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest on the mere allegations or denials of his or her pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial. (2) The court shall grant summary judgment if, (a) (b) The court is satisfied there is no genuine issue for trial with respect to a claim or defence; or The parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. A motion for summary judgment invokes a two part test. The moving party bears the onus of establishing there is no genuine issue for trial. Once this onus has been discharged, the second part of the test requires the responding party to establish there is evidence which offers a real chance of success to the responding party based on the pleading which has been filed. (See MacPherson v. Ellis, 2005 PESCAD 10, paras. 18 and 19.) [22] There is no arbitrary or fixed criterion that the motions judge must apply. Each case must be decided on the law and the facts as found on the evidence submitted. It is not sufficient for the responding party to say that more and better evidence will, or may be, available at trial. The onus is on the respondent to set out specific facts and coherent evidence to show there is a genuine issue for trial. An apparent factual conflict in the evidence does not end the inquiry. (See M. F. Schurman Co. v. Westland Homes Ltd. (1993), 101 Nfld. & P.E.I.R. 122 (PEISCAD) at para. 10.; Bank of Montreal v. Masseau, 2004 PESCTD 9 at para. 4[8].) [23] The settled law on summary judgment motions confirms the purpose of Rule 20 is to remove from the trial system matters where there is no

6 Page: 4 genuine issue to go to trial. The motions judge is to take a hard look at the evidence that is presented. While the onus of establishing there is no triable issue is on the moving party, a respondent cannot sit back and do nothing. If the respondent wishes to succeed it should put its best foot forward. When an issue of genuine credibility arises, a trial is required, but there must be something to the credibility issue before a trial is ordered. (See Simmonds v. Murphy (1996), 137 Nfld. & P.E.I.R. 332 (PEISC-TD) at para. 2.) [24] These principles of law have recently been summarized by Jenkins J., (as he then was) in the case of UPEI v. Stevenson & ors PESCTD 08. At para. 33 of his decision, Jenkins J. reconfirms the objective of Rule 20 in that it is used to screen out claims that, in the opinion of the court, based on the evidence presented to the court as required by the Rule, ought not proceed to trial because they cannot survive a good hard look. He then goes on in para. 34 of his decision to quote with approval the following passage from the Ontario Court of Appeal decision in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.): [34] Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4 th ) 257 (Ont. C.A.) provided some clarification or refinement of the principles stated in Schurman that are applicable to the present case. That clarification was more recently repeated in Nadvornianski v. Stewart Title Guaranty Co. (2006) 82 O.R. (3d) 149 (Ont.S.C.J.) at para. 15: Underlying Rule 20 is the premise that little purpose is achieved by having an unnecessary trial. Rule 20 is the mechanism adopted by the Rules of Civil Procedure for deciding cases where it has been demonstrated clearly that a trial is unnecessary and would serve no purpose. I recognize, however, that deciding when a trial is unnecessary and would serve no purpose is no mean task. However, in my respectful view, in determining this issue it is necessary that motions judges not lose sight of their narrow role, not assume the role of a trial judge and, before granting summary judgment, be satisfied that it is clear that a trial is unnecessary. This is not to say that the court is not to consider the evidence which constitutes the record. Indeed, to do so is central to determining the existence of a genuine issue in respect to material facts.... However, at the end of the day, it is clear that the courts accord significant deference to the trial process as the final arbiter of the dispute which has brought the parties to litigation. If there is a genuine issue with respect to material facts then, no matter how weak, or how strong, may appear the claim or the defence, which has been attacked by the moving party, the case must be sent to trial. It is not for the motions judge to resolve the issue.

7 Page: 5 The foregoing represents a summary of the law, factors, and approach to be employed in the case at bar. [10] Therefore, despite additional judicial comment over the years, each of the motions before the court must satisfy the two part test, i.e. each of Metro, Stewart McKelvey and Boswell, and Carewco and Heronsfield, must discharge the onus of establishing there is no genuine issue for trial. Once discharged, the test requires Simpson to establish there is evidence which offers him a real chance of success. Application of the law to the facts [11] Rule 20.01(3) allows each of the moving parties to file supporting affidavit material or other evidence to buttress their motions for summary judgment. Likewise, Rule 20.04(1) mandates Simpson, as the responding party, to set out in affidavit material or other evidence facts showing there is a genuine issue for trial, and the rule specifically dictates that Simpson may not rest on the mere allegations or denials of his pleadings, but must do more. In some of the cases this has been styled as putting your best foot forward or playing trump, or risk losing. I reference these aspects of Rule 20 at this time because Metro filed the affidavit of Ron Clarke, Commercial Accounts Manager with Metro, in support of its motion. Attached to Clarke s affidavit were numerous documents setting out the relationship between Metro and Simpson. On Simpson s request, I ordered the attendance of Clarke for the purpose of crossexamination by Simpson. [12] Likewise, Stewart McKelvey and Boswell filed the affidavit of Keith Boswell in support of their motion. At Simpson s request, I ordered Boswell to attend the hearing for the purpose of cross-examination on his affidavit by Simpson. [13] Finally, Carewco and Heronsfield filed the affidavits of the principals of those companies, namely, Wayne L. Carew and Derek D. Key, Q.C. in support of their motion. As with the other motions, and at the request of Simpson, I ordered Carew to attend the hearing for the purpose of cross-examination. Simpson cross-examined Clarke, Boswell, and Carew. [14] While all defendants moved their motions on evidence as required by Rule 20, Simpson did not file any affidavit with his Respondant s Record. His record contains an attempt to argue various points raised in the affidavits of Clarke, Boswell, and Carew, and their corresponding facta. Simpson s record in response to the motions contains argument only and no evidence. [15] However, on November 12, 2009, Simpson filed his Affidavit of Documents.

8 Page: 6 While this document is generally exchanged with other counsel and not filed with the court, it does contain Simpson s affidavit of November 12, 2009 where he essentially repeats the allegations found in his statement of claim in more detail and attaches documents, some of which are of little use to him in responding to the motions. For example, he attaches a September 19, 2007 without prejudice letter to Key and Carew from Mr. David W. Hooley, Q.C., who he says was his lawyer at the time. The letter purports to outline the documentary history of dealings between Simpson and Carew and Key. The letter is clearly couched in terms of Mr. Hooley s understanding and interpretation of documents provided to him by Simpson. This does not constitute evidence within the meaning of Rule 20. [16] The foregoing review of process and evidentiary basis with respect to all three motions is taken to point out that each of the moving parties complied with the requirements of Rule 20 in grounding their motions, but Simpson did not. In fact, when given the opportunity to respond orally at the hearing of the motions, Simpson s response was to request an adjournment of the hearing in order to obtain a transcript. I ruled against him on that motion because the matter had been adjourned at least twice previously and he had ample time to prepare his submissions. [17] After my ruling, Simpson chose not to offer any argument and, therefore, I am left with the record he filed and his affidavit as contained in his Affidavit of Documents. Given the serious consequences that attend a motion for summary judgment, I find it most unfortunate that Simpson either would not, or could not, advance his position before the court beyond the basic restatement of his statement of claim. Therefore what I m left to examine with respect to each of the motions before me is the evidence and argument submitted by each of the defendants. 1. The Metro motion [18] In his statement of claim, Simpson makes several allegations against Metro. Specifically they are contained in paras. 7, 8, 9, 13 and 17. [19] In para. 7, Simpson refers to a meeting with Metro in 2004 where he, by inference, concedes he was in arrears on his mortgage and loan payments but takes issue with the request from Clarke, on behalf of Metro, that he sign a certain document without having the opportunity to show it to his lawyer. He alleges it was signed under duress. What should be noted with respect to this aspect of the statement of claim, as with other allegations and arguments advanced by Simpson is that he freely acknowledges that he was indebted to Metro and was in arrears on that indebtedness. It was his desire to cut his business ties with Metro which led him to the arrangement with Carewco and Heronsfield, resulting in a Letter of Understanding which I shall address later.

9 Page: 7 [20] Clarke s evidence as contained in his affidavit in response to para. 7 of the statement of claim discloses that Metro actually called its loan to Simpson on October 21, 2003 and again on July 28, Then Clarke sets out in para. 12 of his affidavit thirteen detailed paragraphs reflecting the extensions and accommodations Metro made to Simpson between 2003 and [21] Of particular interest is the letter to Simpson dated March 25, 2004 which appears as Exhibit 7 to Clarke s affidavit. While Simpson offers no evidence of the specific document that he allegedly signed under duress, I am confident that the letter referred to by Clarke as Exhibit 7 to his affidavit is the document in question. That letter appears to be a confirmation of a telephone conversation had between Clarke and Simpson on March 24, 2004 where the details of a further accommodation to Simpson with respect to his indebtedness to Metro is set out. The last sentence in the letter requests Simpson sign a copy of the letter as his acceptance and understanding and suggests he maintain one copy for his file. The evidence of Clarke at para. 14 of his affidavit is that he did not tell Simpson he could not get legal advice, rather he was requested merely to acknowledge receipt of the letter and apparently Simpson did so. No cause of action arises out of this exchange, nor is there any genuine issue for trial and Simpson has offered no evidence to contradict that of Clarke, which I accept. [22] In para. 8 of his statement of claim, Simpson acknowledges he is one month in arrears on payments to Metro, but that Metro then forecloses on him and are essentially then satisfied by the sale of his land. Later in para. 16 of the statement of claim, Simpson alleges Metro put both of his properties up for mortgage sale on March 20, There is certainly an inconsistency in these allegations, but the fact is Simpson was in violation of his financial obligations to Metro and they merely exercised their legal rights under their security documents. [23] In para. 9 of his statement of claim, Simpson alleges that in February, 2005, representatives of Metro advised him his line of credit had been terminated, although it had been secured by assets and an agreement. Again, the evidence of Clarke as set out in his affidavit at Exhibit 11 demonstrates Simpson had exceeded his $25,000 line of credit. Metro was entitled to take the action it did and I can see no cause of action arising from Simpson s allegation. [24] In para. 13 of his statement of claim, Simpson alleges Metro and others did nothing to find out why Carewco and Heronsfield had not paid out Metro since they had assumed his mortgage with Metro. This allegation goes to the heart of Simpson s action. He apparently thought Carewco and Heronsfield were obligated to pay out his mortgage to Metro in keeping with his agreement with Carewco and Heronsfield as evidenced by the Letter of Understanding ( LOU ). All of the evidence is to the

10 Page: 8 contrary. Metro acted within its legal rights in dealing with Simpson s properties and Simpson s misunderstanding of the legal arrangements between him and Metro, and between him and Carewco and Heronsfield, does not give him a cause of action against them. [25] The key document in all three motions is the LOU dated September 26, 2005 entered into by Simpson, Carewco, Heronsfield, Stewart McKelvey, as per one of the partners, Keith Boswell Q.C., and Metro. It reads as follows: LETTER OF UNDERSTANDING CAREWCO HOLDINGS LTD. AND HERONSFIELD MANAGEMENT INC. LOAN TO TIMOTHY SIMPSON This letter sets forth the understandings and agreements of the persons who have signed this letter below effective as at September 26, 2005 (the Effective Date ): 1. Timothy Simpson ( Simpson ) is currently indebted to Metro Credit Union Ltd. ( Metro ) in the total amount of $55,440.60, comprised of an NELP equipment loan (the NELP Loan ) in respect of which there is owing $3,555.98, a mortgage loan in respect of which there is owing $51, (the Mortgage Loan ), and overdrafts in Metro accounts numbered and totalling $ (the Overdrafts ). 2. Carewco Holdings Ltd. ( Carewco ) and Heronsfield Management Inc. ( Heronsfield ) will make disbursements or assume Simpson s indebtedness to Metro as follows: (a) (b) assumption and payment of monthly interest payments on the Mortgage Loan in the amount that will be calculated on the daily balance, at the contract rate of 8.0% per annum, to Metro for 12 months following the Effective Date; Carewco and Heronsfield shall execute and deliver to Metro an assumption of mortgage agreement in registrable form; it is understood and agreed that the outstanding balance in respect of the Mortgage Loan shall be due and payable on the first anniversary date of the Effective Date; it is further understood and agreed that the assumption of the Mortgage Loan by Carewco and Heronsfield shall not extinguish Simpson s obligations in respect of the Mortgage Loan; and payment to Metro of the lump sum of $5,000 on the Effective Date to repay the NELP Loan and Overdrafts and the balance of such lump sum, if any, to be paid on account of the Mortgage Loan. Upon payment of such

11 Page: 9 lump sum, Metro will provide a partial release of its Mortgage Loan security in respect of Lot 8 in Simpson s subdivision in Stanhope, P.E.I., and Simpson s legal counsel (as referred to below) will release the $15,000 now held by such counsel in trust to repay and satisfy the second mortgage now in respect of such Lot Carewco and Heronsfield will advance to Simpson the total sum of $80,000, less the amounts assumed or paid by them in respect of Simpson s indebtedness to Metro as stated in paragraph 2 above; such advance to Simpson shall include the amount of $15,000 to be paid immediately by Simpson in respect of the promissory note referred to below and shall also include any amounts previously advanced to Simpson by Carewco and Heronsfield prior to execution of the security referred to in paragraph 4 below. 4. As security for Carewco and Heronsfield, Stewart McKelvey Stirling Scales ( SMSS ), legal counsel for Simpson, shall, subject to the terms of this letter of understanding, hold in trust and escrow two deeds of conveyance, each executed by Simpson in favour of Carewco and Heronsfield, in respect of provincial parcel number (Green Meadows) and also in respect of provincial parcel number (West St. Peters) (each a Deed, and collectively the Deeds ). 5. In the event that Simpson neglects or otherwise fails to repay and satisfy his indebtedness to Carewco and Heronsfield on or before the first anniversary date of the Effective Date, Carewco and Heronsfield may agree with Simpson to extend or renew such indebtedness as they may agree, and failing such agreement, legal counsel for Carewco and Heronsfield, namely, Key McKnight & Maynard ( KMM ), may provide written notice to SMSS on behalf of Simpson that SMSS must, within 10 days of receipt of such notice in writing, deliver such one of the Deeds as shall be specified in such notice to KMM for registration and filing. Simpson shall not object to or protest the delivery of any such notice and hereby instructs SMSS to deliver the Deed as specified in the notice. 6. Prior to any registration or filing of such Deed by KMM, Carewco and Heronsfield shall execute, and KMM shall deliver to SMSS, a duly executed satisfaction of mortgage, in registrable form, in respect of the collateral mortgage given by Simpson to Carewco and Heronsfield in respect of the lands and premises referred to in such Deeds. Concurrently with delivery of such satisfaction of mortgage, Carewco and Heronsfield shall also return and deliver to Simpson the original copy of a promissory note made by Simpson in the principal amount of $80,000, marked and annotated paid in full by Carewco and Heronsfield.

12 Page: Carewco and Heronsfield shall be entitled to grant such extensions of time or other indulgences in respect of satisfaction and repayment of Simpson s indebtedness to them as Carewco and Heronsfield may agree to in their sole and absolute discretion. Simpson acknowledges and agrees that he shall use his best efforts to complete the development of and sale of lots in the subdivision located on the Green Meadows property. 8. The parties signatory hereto acknowledge and agree to the foregoing, to the extent that they may be obligated or directed by this letter of understanding. This letter may be executed by fax signature and in counterparts, all of which when taken together shall constitute one and the same letter. 9. All documentation with respect to the foregoing shall be prepared by Simpson s legal counsel at his cost and expense. DATED effective the 26 th day of September, SIGNED SEALED & DELIVERED ) in the presence of: ) (Sgd.) Keith M. Boswell ) (Sgd.) Timothy Simpson Witness ) TIMOTHY SIMPSON SIGNED SEALED & DELIVERED ) in the presence of: ) CAREWCO HOLDINGS LTD. (Sgd.) Hazel Mullins ) Witness Per: (Sgd.) Wayne Carew SIGNED SEALED & DELIVERED ) HERONSFIELD MANAGEMENT INC in the presence of: ) (Sgd.) Hazel Mullins ) Per: (Sgd.) Derek Key Witness ) SIGNED SEALED & DELIVERED ) STEWART McKELVEY STIRLING SCALES in the presence of: ) (Sgd.) Carol Ann Jones ) Per: (Sgd.) Keith M. Boswell Witness ) Keith M. Boswell, Partner

13 Page: 11 SIGNED SEALED & DELIVERED ) KEY McKNIGHT & MAYNARD in the presence of: ) (Sgd.) Hazel Mullins ) Per: (Sgd.) Derek Key Witness ) Derek Key, Q.C., Partner SIGNED SEALED & DELIVERED ) METRO CREDIT UNION LTD. in the presence of: ) ) Per: (Sgd.) D. P. Theriault ) Name: D. P. Theriault ) Title: Manager Lending Services ) (Sgd.) Renee Williams ) Per: (Sgd.) R. E. Clarke ) Name: R. E. Clarke ) Title: Account Manager [26] The affidavits in support of the various motions made it crystal clear that Simpson was indebted to Metro and in arrears on that indebtedness. Metro had bent over backwards to accommodate Simpson over the years, but finally had had enough. Simpson wanted to cut his ties with Metro, so he sought out Carewco, through the person of Mr. Wayne Carew, to obtain interim financing. Carewco and Heronsfield agreed to assume Simpson s mortgage with Metro and make the interest payments only, for one year. This would allow Simpson time to make other arrangements and have the option of paying out the mortgage. [27] As security for its loan, Carewco and Heronsfield applied a generous rate of interest and also had Simpson execute deeds to two of his properties to be held in trust by Boswell until the expiration of the one year agreement. If Simpson stepped up at the end of the year and repaid his financial obligations, then all was well. If he did not, then Carewco and Heronsfield were entitled to receive a deed to one of the two properties held in trust by Boswell. [28] The one year grace period which Simpson bought through his arrangement with Carewco and Heronsfield expired and Simpson did not meet his financial obligations. At that point, Metro exercised its right of mortgage sale and recovered most of the money owing to it through that sale. There was a shortfall and that shortfall was paid by Carewco and Heronsfield. [29] The LOU sets out the financial arrangement among the parties. A plain reading of the document discloses Simpson was buying himself 12 months in which to come up with some solution in order to satisfy his creditors. The LOU does not

14 Page: 12 require Carewco and Heronsfield to pay out Simpson s mortgage, rather they agree to pay the monthly interest for a period of 12 months. The LOU also states that the parties understood and agreed that the assumption of mortgage loan by Carewco and Heronsfield shall not extinguish Simpson s obligations in respect of the mortgage loan. [30] Simpson argues a contrary understanding, but the evidence against his argument is overwhelming. The affidavits which have been filed in support of the various motions provide detail as to how the LOU came into existence. The LOU simply embodies what was agreed to among the parties. There are no genuine issues for trial arising out of these circumstances and despite Simpson s protestations to the contrary, he has offered no evidence in support of his position and it has no chance of success at trial. Therefore, by operation of Rule 20, his action against Metro must be dismissed. 2. Stewart McKelvey and Boswell motion [31] Boswell was Simpson s lawyer. Boswell is a partner in the firm of Stewart McKelvey and provided a 60 paragraph affidavit in support of his motion for summary judgment against Simpson. While that affidavit is detailed and informative, and, in my view, correctly sets out his relationship and dealings with Simpson, the viva voce testimony of Boswell was even more impressive. He set out in detail his business dealings with Simpson, including the fact he took instructions from Simpson for the drafting of the LOU. Although Simpson argues to the contrary, the evidence of Boswell, which I accept, is that he merely put on paper the agreement that had been negotiated among Simpson, Metro, Carewco, and Heronsfield. Boswell was never the author of the LOU. [32] Simpson s allegations against Stewart McKelvey and Boswell are contained in paras. 13, 14, and 15 of his statement of claim. At para. 19 of the Stewart McKelvey and Boswell factum the following appears: Boswell and SMSS did not explain the effect of the LOU to Simpson, and specifically, it was not explained to Simpson that Carewco and Heronsfield were only assuming Simpson s monthly mortgage payments to MCU for a period of twelve (12) months rather than paying out MCU. Boswell and Stewart McKelvey submit that this is an accurate summary of Simpson s allegations as contained in paras. 13, 14, and 15 of his statement of claim. At p. 6 of his Respondant s Record, Simpson agrees. [33] Boswell s evidence at paras. 26 and 27 of his affidavit indicate that several drafts of the LOU were prepared prior to the final draft being finalized and executed.

15 Page: 13 Simpson was provided with drafts of the LOU that Boswell prepared and, in fact, Simpson contacted Boswell requesting changes to the LOU. Some of these changes were made. One such change requested by Simpson on September 2, 2005 was that the LOU should contain a provision that if Simpson did not repay Carewco, Heronsfield, and Metro within a year from the date of the LOU, that refinancing and/or renegotiation options would be available to the parties. As per Simpson s request, this revision was included in the final LOU. This entire sequence of events is well documented by Boswell in para. 28 of his affidavit. Exhibit G contains Boswell s notes which reflect the request from Simpson for this amendment. [34] An even more telling exchange between Boswell and Simpson in relation to the LOU is found in para. 24 of Boswell s affidavit. Basically the evidence is that in an dated July 19, 2005, Boswell indicated to Simpson:...by assuming the metro mortgage, rather than paying it out, he is basically advancing you the amount of the metro mortgage. Simpson replied: Hi Keith. That sounds good I ll call you in AM. Thanks TGS. [35] This evidence is instructive. Boswell was on top of this file. He knew Simpson s business, having acted for him for a number of years. He made known to Simpson what the terms of the LOU were and also took instructions and put in place amendments at Simpson s request. Simpson fully understood the mortgage was being assumed and not paid out. [36] There is absolutely no basis for Simpson s claim against Stewart McKelvey and/or Boswell. The insurmountable evidence is that Boswell at all times acted in a highly professional manner in his dealings on behalf of Simpson with respect to the LOU. Boswell s affidavit and the exhibits attached thereto leave no room for doubt. Simpson was buying 12 months via this LOU in order to get his financial affairs in order. There was never any agreement that Carewco and Heronsfield would pay out Simpson s mortgage to Metro. That is a figment of Simpson s imagination. Likewise, not only were Simpson s obligations and terms of the LOU fully explained to him by Boswell complete with the implications of those arrangements, Simpson actively participated and directed certain terms in the LOU. [37] There is no genuine issue for trial here. Simpson has nothing more to offer by way of response except to repeat in a different fashion his statement of claim. Accordingly, Rule 20 requires that his action against Stewart McKelvey and Boswell be struck in its entirety.

16 Page: 14 [38] One final comment. Boswell deposes in para. 58 of his affidavit as follows: 58. At no point in time did Simpson express any dissatisfaction with the services that I provided to him. Specifically, in January of 2007, shortly before his West St. Peters and Green Meadows properties were put up for mortgage sale, Simpson expressed his thanks to me, and specifically thanked me for attempting to help him get out of this mess so that he could keep most of his land. A copy of an that Simpson sent to me, dated January 16, 2007 is attached to my Affidavit as Exhibit O. The supports this statement. Simpson s confidence in Boswell in January 2007 is inconsistent with his protestations that Boswell was negligent and derelict in his duties (para. 16 of the Statement of Claim). Boswell did not bill Simpson for his services from July, 2005 up to the Metro mortgage sale in March, 2007 because Simpson didn t have money for legal costs (Boswell affidavit, para. 57). In return for this generous gesture, Simpson brought this action in Carewco and Heronsfield motion [39] Paragraphs 10, 11, 12 and 16 of Simpson s statement of claim contain allegations against either Carewco or Heronsfield. Again, the focus of these allegations is Simpson s mistaken belief that his agreement with Carewco and Heronsfield somehow required them to pay out his mortgage to Metro. Since they did not pay out his mortgage, he claims they were negligent and in dereliction of duty resulting in his properties being sold at mortgage sale on March 20, [40] The LOU provides the complete answer to these allegations. I have already reproduced it and referenced it in some detail. The fact is that Simpson contacted Carew in May, 2005, seeking interim financing with respect to Simpson s indebtedness to Metro. Carew indicated Carewco was prepared to assist Simpson with a further loan and Carew also advised Metro that Carewco would be willing to assume responsibility for Simpson s outstanding indebtedness, provided Metro agreed to assign its security to Carewco in the event Simpson did not repay his loan to Carewco within one year. In his affidavit, Carew references multiple s and communications among Simpson and all the defendants which culminated in the LOU of September 26, At para. 10 of his affidavit, Carew refers to para. 2(a) of the LOU where it states that:...it is further understood and agreed that the assumption of the Mortgage Loan by Carewco and Heronsfield shall not extinguish Simpson s obligations in respect of the Mortgage...

17 Page: 15 Simpson cross-examined him on this point. Carew responded by saying at no time did he indicate to Simpson that Metro would be paid out. According to Carew, the arrangement with Simpson got Metro off his (Simpson s) back for one year by virtue of payment of the mortgage interest. [41] It is interesting that at para. 15 of his affidavit Carew deposes that after Simpson failed to satisfy his indebtedness to Metro on the anniversary date of the LOU, Carew continued to discuss possible alternative financing arrangements with Simpson that would allow him to satisfy his indebtedness to Metro and avoid the properties going to mortgage sale. This point is interesting because this reflects the insertion in the LOU providing for further discussions between Simpson and Carewco and Heronsfield in the event Simpson neglects, or otherwise fails to repay his indebtedness to Carewco and Heronsfield. This is consistent with Boswell s evidence that he was requested by Simpson to insert language in the LOU to allow for further negotiations after default. [42] At para. 16 of his affidavit, Carew swears that from October, 2006 to February, 2007 he sent numerous s to Simpson in efforts to negotiate a resolution that would allow Simpson to retain his land while ensuring his creditors were paid. Attached to his affidavit as Exhibit B are a series of s between Simpson and Carew which support Carew s assertion. These s show Carew made every effort to assist Simpson in his difficulties, but Simpson was his own worst enemy in that he failed to respond in any meaningful way to these overtures. [43] At para. 18 of his affidavit, Carew adds that in addition to the interim financing advanced to Simpson by Carewco and Heronsfield, Carew personally provided Simpson with financial assistance in 2005 and 2006 for which he was never repaid. When asked to expand on that statement while on the witness stand, Carew said he has paid Simpson as much as $5,500 at various times before the LOU was ever discussed. Simpson did not deny this. [44] Although Carewco and Heronsfield were well secured for their interim financing to Simpson, they did go the extra mile with him in a similar way that Ron Clarke of Metro and Keith Boswell of Stewart McKelvey tried to assist Simpson. As for Simpson s claim against Carewco and Heronsfield, there is simply no genuine issue for trial. The LOU is clear and speaks for itself. Simpson has offered no evidence to the contrary and merely relies on the statements in his statement of claim. As in the two prior motions, the motion by Carewco and Heronsfield must be granted. Rule 20 requires summary judgment in these circumstances dismissing Simpson s claim against them.

18 Page: 16 Summary [45] In each of the three motions before the court, the moving parties, i.e. Metro, Stewart McKelvey and Boswell, and Carewco and Heronsfield, have each established there is no genuine issue for trial arising out of Simpson s statement of claim. They have done so on the strength of clear, cogent affidavit evidence supplemented by the viva voce testimony of Clarke, Boswell, and Carew under cross-examination by Simpson. The evidence of each of the deponents was supported by exhibits. [46] Since the first part of the two part test required for summary judgment had been met, the onus then shifted to Simpson to establish evidence which offers a real chance of success to him based on his statement of claim. He offered no evidence. He offered argument only and relied on his statement of claim. This case exemplifies the reason why Rule 20 exists. Each and all of the defendants ought not to be put to the time and expense of a trial. Simpson has no case against them and, therefore, their motions must be granted. Specifically, pursuant to Rule 20 of the Rules of Civil Procedure the plaintiff s claim against the defendants Carewco Holdings Inc., Heronsfield Management Inc., Metro Credit Union Ltd., Stewart McKelvey Stirling Scales and Keith Boswell, Q.C. is dismissed. Costs [47] While costs are always in the discretion of the court, this is a case which warrants the exercise of that discretion in favour of the successful litigants. Rather than delay the matter further by way of written submissions or, indeed, perhaps oral submissions, I have elected to fix the costs. Therefore, in addition to the order of dismissal, I order costs as follows: 1. The Defendants, Carewco Holdings Ltd. and Heronsfield Management Inc., shall be entitled to their costs of this motion, payable by the plaintiff, Timothy G. Simpson, on a partial indemnity basis in the all inclusive amount of $2, The Defendant, Metro Credit Union Ltd., shall be entitled to its costs of this motion, payable by the plaintiff, Timothy G. Simpson, on a partial indemnity basis in the all inclusive amount of $2, The Defendants, Stewart McKelvey Stirling Scales and Keith Boswell, Q.C. shall be entitled to their costs of this motion, payable by the plaintiff, Timothy G. Simpson, on a partial indemnity basis in the all

19 inclusive amount of $2,000. Page: 17 [48] The total amount of costs payable by Simpson to the various defendants is $6,000 which shall be paid in accordance with Rule 57.03(1)(a) within thirty (30) days of the date of these reasons. February 2, 2010 J.