



COURT OF APPEAL FOR ONTARIO

CITATION: Sammut v. Sammut, 2018 ONCA 507

DATE: 20180601

DOCKET: C64853

Feldman, MacPherson and Rouleau JJ.A.

BETWEEN

Charles Sammut

Plaintiff/Respondent

(Respondent)

and

Susanne Sammut
and
    Josephine Spiteri

Defendants/Moving
    Party

(
Appellant
/Respondent)

AND BETWEEN

Josephine Spiteri

Plaintiff by Counterclaim

and

Charles Sammut, Royal Bank of Canada, Manju Gujot
    Sekhon, The Estate of Dennis Ray Cook, deceased, by his Estate Trustee, Roberta
    Gladys McLean

Defendants by Counterclaim

Domenico N. Magisano and Christopher Shorey, for the
    appellant

Mark A. Ross, for the respondent

Heard: May 29, 2018

On appeal from the
    order of Justice Bonnie J. Wein of the Superior Court of Justice, dated December
    20, 2017.

REASONS FOR DECISION

[1]

The appellant, Susanne Sammut, appeals from the order of Wein J. of the
    Superior Court of Justice denying the appellants motion to set aside the order
    of Woollcombe J. of the Superior Court of Justice. Woollcombe J.s order
    granted summary judgment to the respondent, Charles Sammut, for $466,420.22,
    plus interest and costs of $5,000. In her endorsement, Woollcombe J. said:

[3]      The plaintiffs claim against Ms. Sammut is based on
    his affidavit evidence that, beginning in about 2005, she began to divert and
    steal money from him without his knowledge and consent. In his affidavit, the
    plaintiff sets out the various aspects of the defendants conduct that led to
    his financial losses.

[4]      Ms. Sammut was not present in court and has not
    provided any materials in response to the motion. She is well aware of the
    plaintiffs claim and appeared in court on the first return of the application
    before Donohue J. on July 22, 2014. At that time, she provided an address at
    which she was to be served. Subsequently, on August 19, 2014, Justice André
    ordered that the plaintiff could serve Ms. Sammut by email. An attempt was made
    by the plaintiff to serve Ms. Sammut with the motion material by email, but
    that email no longer functions. I understand that her whereabouts are unknown.
    In these circumstances, I heard the motion in Ms. Sammuts absence.



[8]      Ms. Sammut has put no material before me. I am advised
    that she has been noted in default, the consequences of which are set out in
    rule 19.02. Of significance, Ms. Sammut is deemed to admit the truth of all
    allegations of fact made in the statement of claim.

[9]      The plaintiff has provided an affidavit setting out in
    detail the various losses that he claims. The various heads of loss correspond
    to those set out in his statement of claim.

[10]    On the unchallenged evidence before me, I am prepared
    to grant summary judgment against Ms. Sammut in the amount of $466,420.22.

[11]    On the basis of the unchallenged evidence before me, I
    accept that Susanne Sammut used fraud and theft to obtain funds that are now
    owed to the plaintiff. This finding will mean that, by virtue of s. 178(1) of
    the
Bankruptcy and Insolvency Act
, the money owing to the plaintiff
    will survive bankruptcy.

[2]

Ms. Sammut moved to set aside Woollcombe J.s order on the basis that
    she was not served with the respondents Statement of Claim and, therefore, did
    not have an opportunity to defend the case against her. The appellants home
    address and email address had been incorporated into a previous court order.
    However, at some point the appellant moved to a new address and there was a one
    letter error in the email address. Hence, the appellant says, she did not
    receive relevant legal documents, including the Statement of Claim.

[3]

After an extensive analysis, Wein J. rejected this argument. She said:

[36]    In summary, then, even on the most charitable view of
    the case, largely because of her actions and inactions with respect to updating
    her address for service, and failing to note the deficiency in the email
    address for service, Susanne Sammut is the author of her own misfortune in
    having the motion proceed unopposed. On the most viable view of the history of
    the file, she simply decided to avoid her actions by moving for bankruptcy and
    ignoring the action taken by Charles.



[37]    While there was an error in recording her email
    address, she was served at the mail address she had given, and there are ample
    indications that she was aware of the action against her.

[4]

The appellant challenges Wein J.s judgment on three bases: (1) her
    refusal to set aside the default judgment as of right; (2) her failure to
    properly consider and apply the test for setting aside a default judgment; and
    (3) her failure to properly review the quantification of damages arrived at by
    the judge who granted summary judgment.

[5]

We do not accept the first two of these arguments. We begin by noting
    that a motion judges decision concerning setting aside a default judgment is
    discretionary; it should not be interfered with absent an error in principle, a
    palpable and overriding error of fact, or unless the decision is so clearly
    wrong as to amount to an injustice: see
Mountain View Farms Ltd. v. McQueen
,
    2014 ONCA 194, at para.55.

[6]

In our view, the appellant has not established that the motion judge
    made an error in any of these categories. The appellant had a clear obligation
    to advise the respondent of a change in her mailing address. She did not do
    this. The initial one letter error in her email address was of no moment; it is
    clear that the appellant received the relevant legal documents throughout the
    litigation. As explained by the motion judge:

[26]    In summary then, with respect to the issue of service,
    there were some problems with the service prior to the motion. Although Susanne
    was present in court when the email was incorporated into the order, there is
    no direct evidence that she deliberately gave the misspelled email address. She
    is at fault for failing to update her mail service address. In the final analysis,
    whatever interim problems there were with service, it is apparent that Susanne
    had notice of the motion for judgment through her counsel, and through the
    materials that would have been subsequently provided to her by her former
    counsel after he was no longer retained.

[7]

On the third issue, the appellant challenges this component of the
    motion judges reasons:

[39]    On behalf of Susanne, it is now, belatedly, argued that
    there are deficiencies in the calculation of the amount of damages that are
    apparent on the face of the record. These include reimbursement for mortgage
    payments overpaid on account of the Homes Equity Line of Credit on all lost
    equity, although Charles interest is only 25 percent of the home, Charles
    failure to defend the power of sale proceedings, and allegations of unfulfilled
    undertakings relating to discrepancies in the damage calculations.

[40]    However, Susanne has not provided any evidence that
    would undermine the conclusion that a substantial amount of money was owing to
    Charles because of her fraudulent actions in relation to Charles interests. It
    is simply too late now to bring forward arguments concerning the quantification
    of the amount owing, particularly in her circumstances of bad faith.

[8]

The appellant asserts that the motion judge erred by saying that
    Susanne has not provided any evidence that would undermine the conclusion that
    a substantial amount of money was owing to Charles and by concluding that
    [i]t is simply too late now to bring forward arguments concerning the
    quantification of the amount owing. We agree on both points.

[9]

On the first point, unlike the summary judgment motion before Woollcombe
    J. where the appellant filed no material, on the motion to set aside before
    Wein J., the appellant was represented by counsel and filed extensive material,
    including a comprehensive affidavit. In our view, it was not too late for her
    to challenge the quantification in the summary judgment order.

[10]

Having
    reviewed the record and read and heard extensive submissions, we are of the
    view that the global damages award of $466,420.22 must be reduced in three
    respects.

[11]

First,
    the respondents claim for capital and interest payments of $78,595.23 on
    account of the fraudulent mortgage obtained by the appellant fails to recognize
    that, at the relevant time, the respondent was only a one-quarter owner of the
    home. Accordingly, his entitlement under this head of damages is $19,648.81.

[12]

Second,
    and similarly, the respondent claimed 100 per cent of the principal payments he
    made, namely, $149,779.21. However, upon sale of the house his loss is only 25
    per cent of this amount in accordance with his interest in the home. Hence the
    respondents entitlement is $37,444.80, not $149,779.21.

[13]

Third,
    on the cross-examination on his affidavit, the respondent admitted that his
    claims for $2,200 in trailer park fees and $2,400 in car insurance related to
    personal items.

[14]

Taking
    these three adjustments together, the appellant is entitled to damages of $289,740.39
    ($466,420.22 minus $58,946.42 minus $112,334.41 minus $4,600).

[15]

The
    appeal is allowed but only to the extent of reducing the damages award to
    $289,740.39. In our view, success on the appeal is divided. Accordingly, each
    party should bear its own costs of the appeal.

K. Feldman J.A.

J.C. MacPherson J.A.

Paul Rouleau J.A.


