



COURT OF APPEAL FOR ONTARIO

CITATION: Moazzani v. Roudechi-Ghias, 2020 ONCA 193

DATE: 20200309

DOCKET: C66719

Tulloch, Benotto and Jamal JJ.A.

BETWEEN

Hadi Moazzani

Plaintiff (Respondent)

and

Saeid Roudechi-Ghias
, Jeffrey Shek and
    Lloyd Rubinoff

Defendants (
Appellant
)

Evan L. Tingley, for the appellant

Robert B. Cohen and Christopher Selby, for the
    respondent

Heard: March 5, 2020

On appeal from the judgment of Justice Alfred J. OMarra
    of the Superior Court of Justice, dated February 19, 2019, with reasons
    reported at 2019 ONSC 652.

REASONS FOR DECISION

[1]

At the conclusion of the hearing, we dismissed this appeal with reasons
    to follow. These are our reasons.

[2]

The appellant appeals the trial judges decision to discharge a mortgage
    registered in favour of the appellant on the respondents home. The appellant,
    who was in a common-law relationship with the respondents daughter from about
    2007 to late 2010 or early 2011, claimed that in 2009 he loaned the respondent
    $220,000, secured by a mortgage on the respondents home. The respondent
    claimed that the loan was never advanced. The appellant claimed that the loan was
    advanced, repaid, and then re-loaned to the family of the appellants
    brother-in-law for the purchase of another property, but continued to be
    secured by the original mortgage on the respondents property.

[3]

After hearing each sides versions of events, the trial judge concluded:
    I am unable to say I accept one version of events over the other, or to prefer
    one witness evidence over another. Simply put, I do not know who to believe. He
    stated: In deciding this case, all I can do is rely on the documentary
    evidence. Based on that evidence, the trial judge made several findings of
    fact that led him to conclude that the appellant received over $220,000 in
    February 2010, an amount sufficient to have discharged the mortgage. He
    received it as repayment. Based on the only credible evidence involving the
    funds, the transfer records and bank statement, the trial judge held that when
    the appellant received the funds into his account, the mortgage was
    effectively redeemed. He therefore ordered the mortgage to be discharged, with
    each party bearing its own costs of the trial.

[4]

The appellant asserts that the trial judge erred in finding that the
    mortgage was redeemed by failing to consider that: (1) the respondent never
    pleaded that he had redeemed the mortgage; (2) the respondent had no right to
    redeem the mortgage because more than two years remained in its term and the
    appellant had taken no enforcement steps; and (3) no witness testified that the
    respondent had redeemed the mortgage.

[5]

We would not give effect to these arguments: (1) because the appellant
    had counterclaimed against the respondent to enforce the mortgage and take
    possession of the respondents home, the issue of whether the mortgage was
    enforceable or had been redeemed was properly before court; (2) because the
    appellant admitted, and the court found, that the original mortgage on the respondents
    home had been fully repaid, the natural consequence was that the appellant had effectively
    waived his right to insist on technical compliance on the mortgage term; and
    (3) because the trial judge doubted the credibility of each sides witnesses, he
    was entitled to base his decision on the documentary evidence. It was within the
    trial judges privileged domain to make the credibility findings he did, and
    then to rely on the documentary evidence as the only credible evidence to
    decide the case. Those decisions are entitled to appellate deference.

[6]

The appeal is dismissed. Costs are payable by the appellant to the
    respondent in the agreed amount of $20,000, inclusive of taxes and
    disbursements.

M. Tulloch J.A.

M.L. Benotto J.A.

M. Jamal J.A.


