



COURT OF APPEAL FOR ONTARIO

CITATION: Bank of Montreal v.
    Georgakopoulos, 2021 ONCA 60

DATE: 20210201

DOCKET: C67262

Strathy C.J.O., Zarnett and
    Sossin JJ.A.

BETWEEN

Bank of
    Montreal

Plaintiff (Respondent)

and

Peter Georgakopoulos and Anka
    Georgakopoulos

Defendants (Appellants)

Peter Georgakopoulos and Anka
    Georgakopoulos, acting in person

Christopher J. Staples, for the
    respondent

Heard: January 25, 2021 by video conference

On
    appeal from the judgment of Justice Jane Ferguson of the Superior Court of
    Justice, dated June 11, 2019, and from the costs order, dated July 26, 2019.

REASONS FOR DECISION

[1]

The appellants appeal from the judgment that was
    granted against them on a motion for summary judgment that was brought by the
    respondent (the Bank).

[2]

The judgment ordered the appellants to pay the
    Bank $342,316.74, representing advances the appellants had received from the
    Bank and interest thereon. It declared an equitable mortgage in favour of the Bank
    over property owned by the appellant, Peter Georgakopoulos (Peter), described
    as 300 Front Street West, Suite 4501, Toronto (the Toronto Property), to
    secure these amounts. It ordered Peter to pay a further sum of $28,072.89 to
    the Bank, representing a credit card debt, and interest thereon. And it
    dismissed the appellants counterclaim.

[3]

On appeal, the appellants raise what are
    essentially four arguments. First, they argue that the motion judge lacked
    jurisdiction to deal with any aspect of the Banks claims. Second, they argue
    that the evidence proffered by the Bank was wrongly accepted by the motion
    judge and did not justify summary judgment. Third, they argue that the motion
    judge lacked the authority to declare an equitable charge against the Toronto
    Property, given the nature of  Peters  title to it. Fourth, they argue that
    their counterclaim was improperly dismissed.

[4]

We do not accept the appellants arguments.

[5]

As to jurisdiction, the Banks action was for
    (i) repayment of amounts it alleged had been drawn by the appellants under a
    line of credit facility, after the facility was supposed to have been cancelled
    and after the security the appellants had provided for loans under the Line of
    Credit Agreement had been discharged; (ii) an equitable mortgage to secure
    those amounts; and (iii) payment by Peter of a credit card debt. The Superior
    Court of Justice has subject matter jurisdiction over all those claims. As this
    court stated in
80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd.
,
    [1972] 2 O.R. 280 (C.A.), at 282, except where there is a specific provision to
    the contrary, the Superior Courts jurisdiction is unrestricted in substantive
    law in civil matters. Nor is there merit to the appellants argument that there
    was an absence of personal jurisdiction over them, or that they have sovereign
    immunity.

[6]

As to the evidence, we are not persuaded that
    the motion judge committed any reversible error in concluding that there was no
    genuine issue requiring a trial. A motion judges conclusion that there is no
    genuine issue requiring a trial is one of mixed fact and law which, in the
    absence of extricable legal error, will only be disturbed on appeal for
    palpable and overriding error:

Hryniak v. Mauldin
,

2014 SCC 7, [2014] 1 S.C.R.
    87, at paras. 80-84.

[7]

Although the appellants say the Banks evidence
    was inadmissible hearsay, the respondents primary evidence was that of a Bank
    employee who swore that this matter was within her responsibility, and that the
    facts she deposed to were within her personal knowledge or determined from the
    face of documents exhibited to her affidavit.
[1]
The motion judge was not legally required to disregard this evidence.

[8]

As to the sufficiency of the evidence, it is
    important to consider both what the Banks evidence was, and what other
    evidence there was.

[9]

The Banks evidence was that a Line of Credit
    Agreement had been entered into between the Bank and the appellants in 2008. It
    provided for a demand credit facility of up to $295,000, secured by a mortgage
    on the appellants property in Oakville. The appellants repaid the loan on
    August 6, 2015, out of the proceeds of sale of the Oakville property, and the
    mortgage on the Oakville property was discharged. The credit facility was
    supposed to be blocked by the Bank, so there could be no further advances, but
    by mistake it was not. The appellants then drew another $295,000, which they
    were not authorized to do, and which they did not repay.

[10]

The Banks evidence was also that it never
    intended to lend funds to the appellants on an unsecured basis, and that the
    appellants had no reason to believe that the Bank would do so, given the terms
    of the Line of Credit Agreement and the fact that, earlier in 2015, the appellants
    had approached the Bank for mortgage financing for a new property. In July
    2015, Peter purchased the Toronto Property, and, after August 6, 2015, when the
    unauthorized drawings from the Bank took place, paid off another lenders
    mortgage on that Property. The motion judge found the Banks funds were used to
    pay the other mortgage.

[11]

Finally, the Banks evidence was that Peter had
    not repaid his credit card debt in a sum exceeding $28,000.

[12]

As for evidence to the contrary, the motion
    judge found there to be none. She stated that the appellants had proffered no
    evidence contradicting the evidence of [the Bank] or the advances of money
    received by them.

[13]

It was accordingly open to the motion judge to
    conclude that there was no genuine issue requiring a trial and to grant summary
    judgment for repayment of the amounts advanced and the credit card debt. Her
    conclusion is not tainted by any palpable and overriding error.

[14]

We also find no reversible error in the motion
    judges conclusion that there was no genuine issue requiring a trial as to
    whether to grant a declaration of an equitable mortgage. She adverted to the
    correct legal test for granting such relief as set out by this court in
Elias
    Markets Ltd. (Re)
(2006), 274 D.L.R. (4th) 166 (Ont. C.A.), at paras.
    63-65. It was open to her on the Banks evidence to infer a common intention
    that advances would be secured against real property, and to consider the
    Toronto Property as coming within that common intention, given the prior
    dealings about mortgage financing for a new property and Peters use of the
    funds drawn from the Bank to pay down a mortgage on the newly acquired Toronto Property.
    As the motion judge noted, the appellants had provided no coherent evidence
    in response.

[15]

Finally, we reject the appellants submission
    that there is no jurisdiction to declare an equitable charge over the Toronto
    Property, given that Peter is the owner of this property as verified by title
    records. The power to grant an equitable charge is well established: see
Elias
.
    The mortgagor or chargor under such a charge will necessarily be the title
    holder.

[16]

The motion judge also did not err in finding
    that there was no genuine issue requiring a trial with respect to whether the counterclaim
    should be dismissed. The motion judge found that no evidence in support of it
    had been proffered.

[17]

Shortly prior to the hearing of the appeal, the
    appellants submitted an affidavit and a document entitled Bills of Equity,
    which were accepted for filing on the basis that it would be up to the panel to
    decide whether to admit them. The Bills of Equity are irrelevant. The affidavit
    consists essentially of argument and does not meet the test for admission of
    fresh evidence.

[18]

The appeal is accordingly dismissed. The Bank is
    entitled to its costs of the appeal fixed in the sum of $7,000, inclusive of
    disbursements and applicable taxes.

G.R. Strathy
    C.J.O.

B.
    Zarnett J.A.

Sossin
    J.A.





[1]
She also said that any information derived from others was believed
    and the source of it disclosed, although no such information was specifically
    identified in the affidavit.


