



COURT OF APPEAL FOR ONTARIO

CITATION:
1250140 Ontario Inc. v. Bader, 2022 ONCA 197

DATE: 20220309

DOCKET: C69480

Trotter, Coroza and Favreau JJ.A.

BETWEEN

1250140 Ontario Inc.

Plaintiff (Respondent)

and

Parveneh Bader, also known as Pamela
    Bader

Defendant (Appellant)

Heath P.L. Whiteley, for the appellant

Alexander Hora, for the respondent

Heard: February 18, 2022 by
    videoconference

On appeal from
    the order of Justice Frederick L. Myers of the Superior Court of Justice, dated
    April 15, 2021.

REASONS FOR DECISION

[1]

The appellant, Pamela Bader, appeals an order
    finding her liable to pay 1250140 Ontario Inc. (125) $243,992.11 in respect
    of a mortgage debt assumed in 2008.

[2]

The motion judge found that the action was not
    barred by the 10-year limitation period in s. 23(1) of the
Real Property
    Limitations Act
, R.S.O. 1990, c. L.15 (the
RPLA
) because Ms.
    Bader acknowledged the debt within this time frame. Finding that there was no
    genuine issue for trial, the motion judge granted summary judgment in favour of
    125.

[3]

Ms. Bader challenges the motion judges
    conclusions on the applicability of the
RPLA
, and whether she
    acknowledged the debt. We do not accept her submissions and dismiss the appeal.

Background

[4]

In 2008, 125 advanced a loan to Ms. Bader. She
    granted a seventh-ranking mortgage on her home as security. She defaulted on
    the loan that same year.

[5]

In 2010, a higher-ranking mortgagee commenced
    foreclosure proceedings. In that proceeding, on November 15, 2010, Ms. Bader
    swore an affidavit in which she said a charge dated March 25, 2008 in the
    amount of $190,000 in favour of [125] was registered on her property. She
    later indicated her understanding that $243,992.11 was owing to 125 in respect
    of the Seventh Mortgage. Ms. Bader concluded her affidavit by stating:
    Ultimately, I want [the property] sold at a fair price which enables payment
    of all
bona fide
debts owing on the Property and returns my equity and
    life savings in the Property to me.

[6]

On November 15, 2010, 125 commenced a separate
    action against Ms. Bader on the covenant in the mortgage to recover the amount
    owing. However, that action was administratively dismissed for delay on July
    15, 2011.

[7]

On March 29, 2011, the Superior Court approved
    the sale of the property in the foreclosure action. There were insufficient
    funds to satisfy Ms. Baders indebtedness to 125.

[8]

On December 2, 2019, 125 commenced another
    action, again seeking to recover the amount owning under the loan. It also sought
    to set aside the dismissal of its previous action. That motion was
    unsuccessful.

[9]

125 moved for summary judgment on its 2019
    action. The question before the motion judge was whether the claim was statute
    barred, given that Ms. Baders debt to 125 was incurred in 2008 (more than 10
    years earlier).

[10]

The motion judge observed that neither party
    disputed that s. 23(1) of the
RPLA
applied. The section provides that
    a claim falling within the ambit of the
RPLA
expires after 10 years:

23(1)
No
    action shall be brought to recover out of any land or rent any sum of money
    secured by any mortgage or lien, or otherwise charged upon or payable out of
    the land or rent, or to recover any legacy, whether it is or is not charged
    upon land, but within ten years next after a present right to receive it
    accrued to some person capable of giving a discharge for, or release of it,
unless
    in the meantime some part of the principal money or some interest thereon has
    been paid, or some acknowledgment in writing of the right thereto signed by the
    person by whom it is payable
, or the persons agent, has been given to the
    person entitled thereto or that persons agent, and in such case no action
    shall be brought but within ten years after the payment or acknowledgment, or
    the last of the payments or acknowledgments if more than one, was made or
    given. [Emphasis added.]

[11]

The motion judge found that Ms. Bader
    acknowledged the debt in her affidavit in the foreclosure proceedings, thereby
    extending the limitation under s. 23 of the
RPLA
. As he said in his
    reasons, [t]his is not just any old acknowledgment in writing. It is sworn
    testimony before the court in a proceeding in which both the defendant and the
    plaintiff were named parties.

Discussion

[12]

The appellant submits that s. 23 of the
RPLA
did not apply in the circumstances of this case because, by the time 125
    commenced its 2019 action, the property had been sold. The appellant submits
    that s. 23 applies only to actions for
in rem
remedies. In this case,
    because the property had already been sold, it was a proceeding for an
in
    personam
remedy. As such, the
Limitations Act
, 2002
, S.O.
    2002, c. 24, Sched. B applied and the action was time barred. We do not accept
    this submission.

[13]

First, this submission was not made before the
    motion judge. Ms. Bader did not raise this issue in her Statement of Defence.
    Instead, she simply took the position that the 10-year limitation had expired.
    As discussed below, she disputed that she had acknowledged the debt in the
    interim. Moreover, Ms. Baders Notice of Appeal failed to raise this issue. It
    was first raised by new counsel (Mr. Whiteley) when he filed a Supplementary
    Notice of Appeal.

[14]

Raising a new issue for the first time on appeal undermines the
    important interest of finality in judicial proceedings. It leads to
    inefficiencies in the adjudicative process. It places this court in the role of
    a first instance decision-maker, rather than a reviewing court. No explanation
    was provided for this change in position on appeal. In these circumstances, an
    appellate court should be reluctant to entertain the new submission: see
Albert
    Bloom Limited v. London Transit Commission
, 2021 ONCA 74, at para. 46.

[15]

Nonetheless, we do not accept that s. 23 of the
RPLA
only
    applies when the mortgagor is still in the possession of the property or when
    the proceeds of the realization of the property have yet to be distributed. Section
    23 makes no such distinction. No cases directly support Ms. Baders position.

[16]

Put simply, s. 23 of the
RPLA
governs actions about claims
    to real property: see
Equitable Trust v. Marsig
, 2012 ONCA 235, 109
    O.R. (3d) 561, at para. 27. When Ms. Bader assumed her debt to 125, it was
    secured by a mortgage on the property. This was not a situation where the land
    was incidental to an action based in negligence, breach of contract, breach of
    fiduciary duty, or some other basis of liability:
Zabanah v. Capital Direct
    Lending Corp.
, 2014 ONCA 872, 123 O.R. (3d) 350. Rather, the claim for
    debt was based on a covenant in the mortgage, and the land, as security for the
    debt, was critical to that claim.

[17]

Ms. Bader has provided no support for the contention that a mortgagee
    becomes disentitled to the longer limitation period in the
RPLA
when
    the property in question has been disposed of in the meantime. While the land may
    be out of reach for enforcement purposes, there is no principled reason why a
    mortgagee should be prevented from pursuing an action for any money still owing,
    as long as the claim is commenced within the limitation period set out in the
RPLA
.
    The prospect of a shifting limitation period, tied to the disposition of the
    property in issue, would only foster uncertainty in the application of the
RPLA
.

[18]

This ground is dismissed.

[19]

We also dismiss Ms. Baders challenge to the motion judges finding
    that she had acknowledged the mortgage debt in her 2010 affidavit. It was open
    to the motion judge to conclude that Ms. Bader acknowledged the debt. There is
    no requirement that such an acknowledgment must reflect an awareness of the
    precise amount owing, nor must it be accompanied by a promise to pay.

Disposition

[20]

The appeal is dismissed. The respondent is entitled to costs in the
    amount of $10,000, inclusive of taxes and disbursements.

Gary Trotter J.A.

S. Coroza J.A.

L. Favreau J.A.


