



COURT OF APPEAL FOR ONTARIO

CITATION: Auciello v. CIBC Mortgages Inc., 2020 ONCA 553

DATE: 20200904

DOCKET: M51270

Lauwers, Brown and Nordheimer JJ.A.

BETWEEN

Vito Auciello

Plaintiff

(Applicant/Moving Party)

and

CIBC Mortgages Inc.
,
Home Trust
    Company
and

Sun
    Life Assurance Company of Canada

Defendants

(Respondents/
Responding Parties
)

Vito Auciello, acting in
    person

Onofrio Ferlisi, for the
    responding party CIBC Mortgages Inc.

Amanda Jackson, for the
    responding party Home Trust Company

Heard: in writing

By the Court:

[1]

Vito Auciello seeks leave to appeal from the costs decision of Justice Carole
    J. Brown of the Superior Court of Justice, reported at 2019 ONSC 5637.

[2]

This motion was scheduled to be heard in writing on August 24, 2020. On
    Friday, August 21, 2020 Mr. Auciello sent an email to the court requesting at
    least over the weekend to review all documents and submit a reply Factum if
    needed. He concluded his email this way:
Please buy me
    some time till Monday or look into an adjournment so that I can get some legal
    advice on all matters.

[3]

The court heard nothing from Mr. Auciello, and the panel instructed
    staff to reach out to him on Wednesday, August 26, 2020. He responded with a
    request for an adjournment. Then, on August 27, 2020 he filed a reply factum.

[4]

The panel refused an adjournment and proceeded to consider Mr.
    Auciellos motion.

The Governing Principles

[5]

The governing principles applicable to a motion for leave to appeal
    costs were set out by this court in
Colistro

v. Tbaytel
, 2019
    ONCA 197, 145 O.R. (3d) 538, at para. 65:

The test for leave to appeal an order as to costs is stringent.
    Leave to appeal will not be granted save in obvious cases where the party
    seeking leave convinces the court there are strong grounds upon which the court
    could find that the judge erred in exercising his discretion:
Carroll
    v. McEwan
, 2018 ONCA 902, 34 M.V.R. (7th) 1, at paras. 58-59, application
    for leave to appeal to S.C.C. pending, 38514 (February 4, 2019) [discontinued
    (March 4, 2019)].

[6]

This approach is consistent with this courts
    earlier ruling in
McNaughton Automotive Limited v. Co-operators
    General Insurance Company
, 2008 ONCA 597, 95 O.R. (3d) 365, at paras. 23-27,
    applying the dictum of Arbour J. in
Hamilton v. Open Window Bakery Ltd.
,
    2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27, where she held that

[a] court should set aside a costs award on appeal only if the
    trial judge has made an error in principle or if the costs award is plainly wrong.

The Factual and Procedural
    Context

[7]

Mr. Auciello applied to 3877337 Canada Inc. for mortgage refinancing for
    two properties owned by and registered to Network Cash Mart Ltd. (Network). Before
    becoming a part of CIBC Mortgages Inc., 3877337 Canada Inc. was a subsidiary of
    CIBC carrying on business as Home Loans Canada (Home Loans), a mortgage
    broker that arranged mortgages between its clients and financial institutions
    other than CIBC. Home Loans recommended Home Trust Company (Home Trust) as a potentially
    suitable lender.

[8]

Home Trust was prepared to offer a mortgage of $600,000 based on an
    appraisal value of $1.2 million. The property value of $1.2 million was based
    on Mr. Auciellos initial assessment. Mr. Auciello completed a mortgage
    application and executed a Commitment Letter on Home Trust letterhead. Network
    was listed as the mortgagor, Mr. Auciello as guarantor. Home Trust reserved the
    right to terminate the Commitment or decline to advance all or part of the
    mortgage until the conditions of the Commitment were satisfied.

[9]

Mr. Auciello was unable to satisfy the conditions in the Commitment
    Letter, particularly the requirement to obtain an appraisal of the properties
    reflecting a minimum value of $1.2 million. Two appraisers refused to do the appraisal
    because they advised that Mr. Auciellos valuation of $1.2 million was
    unrealistic. Ultimately, the appraised value of the properties was $600,000 (as
    is) or $665,000 (as if complete). On this basis, Home Trust drafted a second
    Commitment Letter, offering a mortgage of $390,000, with various conditions,
    including a holdback of $50,000 until renovations were complete. Mr. Auciello
    did not accept the second Commitment Letter. The financing did not proceed and
    the terms of the first Commitment Letter  the valuation of the property at
    $1.2 million  were not fulfilled.

[10]

Mr.
    Auciello sued the defendants for damages in the amount of $100,000 for breach
    of contract, bad faith, intentional and unlawful interference with economic
    relations, breach of duty of good faith, irreparable harm to business
    reputation, loss of business and loss of business opportunity; $50,000 for
    mental and emotional distress; and $25,000 for aggravated and punitive damages
    against each defendant.

[11]

Home
    Loans and Home Trust brought a motion for summary judgment against Mr.
    Auciello. By judgment dated April 25, 2017 Brown J. allowed the motion for
    summary judgment and dismissed Mr. Auciellos action: 2017 ONSC 2360.

[12]

The
    motion judge determined that any wrongs done to the owner of the property, if such
    wrongs could be found, and any damages flowing from such wrongs, were owing to
    the propertys owner, Network, and not to Mr. Auciello, who had no personal
    cause of action. Further, in her view there was no evidence, in the form of additional
    appraisals or otherwise, to suggest the appraised value of $600,000 rather than
    $1.2 million was wrong. Neither defendant had an obligation to provide the loan
    amount Mr. Auciello sought since the appraised value was insufficient.

[13]

The
    motion judge invited costs submissions in writing to be filed within 30 days.
    The responding parties, Home Loans and Home Trust, filed submissions in April
    and May 2017. Mr. Auciello filed a costs submission but did not serve it on the
    responding parties (just as he did not serve his reply factum on this motion
    for leave). He later responded to an e-mail exchange between counsel for Home
    Loans and Brown J.s judicial assistant on August 18, 2017 stating that he did
    in fact send a short cost submission close to the 12th hour subsequent Ms.
    Jacksons 11th hour submission.

[14]

Mr.
    Auciello then pursued his appeal of Brown J.s summary dismissal. This court
    dismissed his appeal on April 19, 2018 and awarded costs against him in the
    amount of $5,000 to each respondent: 2018 ONCA 377.

[15]

Counsel
    for Home Trust inquired about Brown J.s unreleased costs decision on June 21,
    2019. By e-mail dated August 19, 2019 Brown J.s judicial assistant stated: Madam
    Justice Brown advises that the matter of costs has not been dealt with in this
    matter. She welcomes any submissions you have to make in that regard and you
    may fax same to [the court]. She will consider all submissions
.
This
    e-mail was sent to the parties, including Mr. Auciello.

[16]

Brown
    J. issued her costs decision on October 1, 2019 stating that her delay in
    attending to costs was an oversight: 2019 ONSC 5637. Noting that Mr. Auciello
    initially sought $175,000 in damages, she awarded partial indemnity costs in
    the respective amounts of $23,420.82 (Home Loans) and $24,743.22 (Home Trust)
    to the responding parties. She noted that Mr. Auciellos conduct had lengthened
    the proceeding and that some of the issues were complex and overlapping. She
    also noted that Mr. Auciello did not provide costs submissions. (His original
    costs submission was a simple plea that the costs requests were too high: Just
    too high a price to pay!!!!).

[17]

In
    his factum for leave to appeal costs, Mr. Auciello took the following
    positions:

·

Brown J. erred in characterizing the two-and-a-half year delay
    between issuing her decision and the costs endorsement as an oversight.

·

He had filed short, handwritten costs submissions in the eleventh
    hour before the 30-day time limit for costs submissions expired.

·

Brown J. could not order costs years after she rendered her
    decision because the deadline for costs submissions had expired. Moreover,
    awarding costs after so much time had elapsed was unreasonable and placed him
    in a situation of financial instability.

·

The costs award was not an oversight but rather a sneak
    attack initiated by opposing counsels staff.

·

He was overwhelmed by health issues (he suffered a concussion on
    October 7, 2017 and was hospitalized in early 2018) and technological
    difficulties causing him to create multiple email accounts, thereby failing to
    receive some electronic communications from the court.

·

He had appealed from Brown J.s decision regarding the summary
    judgment motion. It was unethical and unreasonable for the defendants to seek
    costs after that appeal had been heard.

[18]

Mr.
    Auciellos reply factum largely repeats these positions and adds nothing new.

Analysis

[19]

Mr.
    Auciellos original submission that the responding parties requests were just
    too high is a submission losing parties often make, but the costs decision is conventional
    in its expression and the amounts awarded in light of the amount at issue are
    not obviously disproportionate. Mr. Auciello points to no error in principle or
    in fact that influenced the result.

[20]

Mr.
    Auciello submits that the delay in and of itself causes him an injustice. However,
    initiating the machinery of the civil justice system as he did does not come
    cost free to those who do so, as he well knows.

[21]

Nothing
    in this case has proceeded with alacrity. The request for the mortgage
    refinancing was made in January 2010. The lawsuit was started in January 2012. An
    Amended, Fresh as Amended Statement of Claim was served in May 2016, and the
    summary judgment motion was argued and decided in April 2017. The appeal was
    argued and decided in April 2018. When the motion judges oversight in not
    issuing the costs decision was brought to her attention in June 2019, she
    decided it in October 2019. Then came this motion for leave.

[22]

While
    the delay in the motion judges costs decision is regrettable, that does not,
    of itself, raise
strong grounds upon which this court could find
    that the motion judge erred in exercising her discretion.

[23]

Mr.
    Auciellos request for an adjournment is denied. Leave to appeal is denied. The
    moving party shall pay to each of the responding parties $1,500 in costs.

Released: P.L. SEP 4 2020

P. Lauwers J.A.

David Brown J.A.

I.V.B. Nordheimer
    J.A.


