



COURT OF APPEAL FOR ONTARIO

CITATION: Auciello v. CIBC Mortgages Inc., 2018 ONCA 377

DATE: 20180419

DOCKET: C63861

Pepall, Roberts and Miller JJ.A.

BETWEEN

Vito Auciello

Plaintiff

(Appellant)

and

CIBC
    Mortgages Inc., Home Trust Company
and

Sun Life Assurance Company
    of Canada

Defendants

(
Respondents
)

Vito Auciello, acting in person

Onofrio Ferlisi, for the respondent CIBC Mortgages Inc.
    previously carrying on business as 3877337 Canada Inc.

Amanda Jackson, for the respondent Home Trust Company

Heard: April 12, 2018

On appeal from the judgment of Justice Carole J. Brown of
    the Superior Court of Justice, dated April 25, 2017, with reasons reported at
    2017 ONSC 2360.

REASONS FOR DECISION

[1]

The appellant appeals
from the order of C. Brown
    J., granting summary judgment to the respondents and dismissing the appellants
    action against them.

[2]

The respondent, CIBC Mortgages Inc. previously
    carrying on business as 3877337 Canada Inc. (387), is a mortgage broker that
    arranges mortgages for clients with financial institutions.  The appellant
    contacted 387.  He advised 387s representative that he wished to refinance
    adjoining commercial properties, which he believed to be worth $1.2 million,
    with a new first mortgage of $600,000.  387s representative suggested Home
    Trust Company (Home Trust) as a potentially suitable lender but indicated
    that a property appraisal would be required.  Subsequently, the appellant
    advised 387s representative that the properties were owned by Network Cash
    Mart Ltd. (Network).

[3]

Ultimately, the appellant executed a Home Trust
    mortgage commitment letter in Networks name as mortgagor and his name as
    guarantor.  The commitment was subject to certain conditions, including an
    appraisal reflecting a minimum property value of $1.2 million.

[4]

The first appraiser advised that a $1.2 million
    was unrealistic but did not compile an appraisal report.  The motion judge
    found that this was a courtesy to the prospective mortgagor so that it would
    not be charged for an appraisal report that did not meet the commitment
    requirement.  A second appraiser also declined to complete an appraisal because
    the valuation was unrealistic.

[5]

To assist the appellant, Home Trust asked the
    first appraiser to complete an appraisal report.  The appraisal confirmed an as-is
    value of $600,000 and a value if complete of $665,000.  Based on this
    appraisal, Home Trust provided a new commitment for mortgage financing of
    $390,000, subject to certain conditions.  The appellant did not accept the new
    commitment.  The first commitments $1.2 million appraisal condition remained
    unfulfilled, and the financing did not proceed.

[6]

The appellant then commenced proceedings against
    387 and Home Trust for breach of contract and various other causes of action. 
    Among other things, he alleged that they mishandled the appraisal process,
    caused undue delay, and failed to act in good faith.

[7]

The respondents successfully moved for summary
    judgment, and the appellants claim was dismissed.  The motion judge concluded
    that the appellant had no cause of action as the property was owned by a
    corporation and not by the appellant, and in any event, no damages were caused
    by the respondents.

[8]

On appeal, the appellant submits that as a
    self-represented party, the motion judge ought to have assisted him and granted
    an adjournment due to his and his mothers health, a procedural issue, and so
    that he could bring the action in the name of the corporation.  He also asserts
    that the motion judge made certain factual errors and erred in her finding
    relating to the value of the property and his failure to prove any damages.

[9]

We do not agree with the appellants
    submissions.

[10]

An adjournment would have made no difference to
    the outcome, and in any event, none was requested of the motion judge. 
    Furthermore, the appellant could not succeed in the action regardless of
    whether it was in his name or that of the corporation.  There was no reliable
    evidence that the property had a value of $1.2 million or that the appraised
    value of $600,000 was wrong.  In this regard, it was open to the motion judge
    to discount the MLS posting prepared and posted by the appellant as being
    self-serving.  Fundamentally, the property did not have an appraised value of
    $1.2 million, and as such, no mortgage financing was available.

[11]

As the motion judge concluded, there was no
    obligation on the part of either respondent to secure the amount of the loan
    sought by the appellant.  The evidence reveals no act or omission by the
    respondents that caused any loss or damages.  The motion judge properly
    concluded that there was no genuine issue requiring a trial.

[12]

The appellant also seeks to admit fresh evidence
    consisting of an affidavit sworn by him.  The contents of the affidavit meet
    none of the requirements for the admission of fresh evidence described in
Palmer
    v. The Queen
, [1980] 1 S.C.R. 759;
and
Sengmueller
    v. Sengmueller
(1994), 17 O.R. (3d) 208.

[13]

For these reasons, the motion to admit fresh
    evidence and the appeal are dismissed.  The appellant shall pay $5,000 in costs
    on a partial indemnity scale, inclusive of disbursements and applicable tax, to
    each of the respondents.

S.E. Pepall J.A.

L.B. Roberts J.A.

B.W. Miller J.A.


