



COURT OF APPEAL FOR ONTARIO

CITATION: Bodnar v. Boban Estate, 2021 ONCA 746

DATE: 20211025

DOCKET: C68783

Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J.
    (
ad hoc
).

BETWEEN

Jo-Ann Bodnar

Plaintiff (Appellant)

and

The Estate of Peter Boban, deceased

Defendant (Respondent)

Michael Cupello, for the appellant

Natalie J. Gerry, for the respondent

Heard: October 18, 2021 by videoconference

On appeal from the
    judgment of Justice T.J. Nieckarz of the Superior Court of Justice, dated March
    25, 2020.

REASONS FOR DECISION

[1]

The appellant, Jo-Ann Bodnar, appeals an order for summary judgment
    dated March 25, 2020 in favour of the respondent, the Estate of Peter Boban, in
    the amount of $274,762 in respect of an outstanding mortgage. The motion judge
    held that there was no genuine issue requiring a trial regarding the amount
    owing under the mortgage and granted judgment accordingly. The dispute between
    the parties pertained to the interest rate due under the mortgage.

[2]

On February 15, 1991, Peter Boban loaned the appellant the sum of
    $86,933 subject to 14% interest secured by a mortgage against a home owned by
    the appellant. The mortgage contemplated monthly payments fixed at $1,100 and was
    payable on the second anniversary date. It was not repaid on that date and
    remained outstanding. Peter Boban passed away in 1997. The respondent Estate asserted
    that the terms of the original mortgage were extended unamended every three
    years commencing February 15, 1993.

[3]

The appellant claims that Peter Boban had agreed with her husband, Ian
    Bodnar, on her behalf on or about February 1993 that the mortgage would be
    renewed every three years at an interest rate of prime plus 4%. She also
    alleges the respondent agreed with Ian Bodnar to an increase in monthly
    payments to $1,600 in consideration of continuation of the alleged interest
    rate of prime plus 4%.

[4]

In July 2017, the appellant sold the home secured by the mortgage. She
    commenced this action in January 2018 seeking a declaration, among other
    things, that the mortgage had been paid in full and that she was entitled to the
    proceeds of sale of the house as well as an amount by way of overpayment. The respondent
    alleges that the mortgage remains outstanding and counterclaims for the amount
    it calculates to be outstanding plus continuing interest at 14%.

[5]

In granting summary judgment in favour of the respondent, the motion
    judge rejected two arguments raised by the appellant. Most significantly, the
    motion judge held that there was no triable issue regarding the existence of an
    oral agreement that interest was to accrue at prime plus 4%. The motion judge
    also held that there was no triable issue regarding alleged acts of part
    performance that would preclude operation of the
Statute of Frauds
if
    any evidence existed of the alleged oral agreement. In reaching that
    conclusion, the motion judge also rejected the appellants assertion that promissory
    estoppel operated, finding that part performance was the more appropriate issue
    but, in any event, that there was no proof of either a representation or
    detrimental reliance.

[6]

Before this court, the appellant does not argue that the motion judge
    erred in finding that there was no triable issue regarding the existence of the
    alleged oral interest rate agreement. Instead, the principal claim of the appellant
    is that the respondent had agreed to limit its remedies on default to
    foreclosure. She bases this position on legal consequences alleged to flow from
    a mortgage action commenced by Peter Boban in 1996 and certain consents signed
    by the parties in 1997 and 1998. The appellant submits that the respondent
    could not resile from that agreement after 2015 and assert a claim for the
    outstanding balance including interest accrued at 14%.

[7]

However, the evidence upon which the appellant relies for this position
    establishes no more than that the appellant agreed that the respondent could
    foreclose if she defaulted in making payments. There is no evidence supporting
    the view that the respondent agreed that it would foreclose, much less that it
    would limit its remedies to foreclosure. No purpose would therefore be served
    by ordering a trial of this issue.

[8]

In her factum, the appellant also raises two related grounds of appeal.

[9]

First, she submits that the motion judge erred in law in failing to
    consider the application of the doctrines of issue estoppel, cause of action
    estoppel and abuse of process. She bases these claims on the 1996 mortgage
    action and the subsequent consents.

[10]

Second, she alleges that the motion judge failed to apply the doctrine
    of laches in respect of the defendants failure to proceed with foreclosure
    proceedings, which the appellant alleges resulted in actual prejudice to her.

[11]

In addition, the appellant submits that the motion judge made a palpable
    and overriding error in inferring that the payments of $1,100, contemplated by
    a consent dated November 4, 1998, and of $1,600, which she began making in
    November 2000, were sufficient to eventually pay off the mortgage. She alleges
    this error was material to the motion judges determination that there was no
    triable issue regarding the existence of the alleged oral agreement to pay
    interest at prime plus 4%.

[12]

None of the foregoing arguments were set out in the appellants pleadings
    in this action nor were they argued before the motion judge. In particular,
    while the motion judge referred to, and rejected, the appellants argument that
    there is presently no mortgage to enforce, that is a substantively different argument
    from the appellants position on this appeal that the respondent had agreed to
    limit its remedies on the outstanding mortgage to foreclosure.

[13]

These new arguments can only be raised with leave of the court:
Kaiman
    v. Graham
, 2009 ONCA 77 at para. 18.
The decision of whether to grant leave to allow a new argument is
    a discretionary decision to be guided by the balancing of the interests of
    justice as they affect all parties.
The general rule is that appellate
    courts will not entertain entirely new issues on appeal.  The rationale for the
    rule is that it is unfair to spring a new argument upon a party at the hearing
    of an appeal in circumstances in which evidence might have been led at trial if
    it had been known that the matter would be an issue on appeal:
Kaiman v.
    Graham
at para. 18 citing
Ontario Energy Savings L.P. v. 767269
    Ontario Ltd.
, 2008 ONCA 350, at para. 3.

[14]

The first two of these arguments, together with the appellants
    principal argument on this appeal, are based on circumstances that differ
    profoundly from the alleged oral agreement regarding the applicable interest
    rate asserted in the appellants pleadings.
It would be contrary to the interests of justice in this case to
    entertain the appellants new arguments.
No explanation was provided for
    the appellants failure to raise these arguments before the motion judge. The
    court will not grant leave in the absence of a reasonable explanation for the
    reason where, as in this case, the respondent may be prejudiced by an inability
    to adduce evidence that would address these new arguments. The appellant is
    unable to persuade the court that all the facts necessary to address the point
    are before the court as fully as if the issue had been raised at trial: see
Ross
    v. Ross
(1999), 1999 NSCA 162 (CanLII), 181 N.S.R. (2d) 22 (C.A.), at
    para. 34, per Cromwell J.A.;
Ontario Energy Savings
at para. 3.

[15]

In any event, the first two of these arguments, together with the
    appellants principal argument on this appeal, also fail for lack of supporting
    evidence as discussed above.

[16]

With respect to the third argument, we do not read the motion judge to
    be drawing an inference of fact regarding the financial significance of the
    mortgage payments. Nor is there any material significance to the alleged
    inference for the motion judges determination that the alleged oral agreement
    respecting interest did not occur.

[17]

Accordingly the appeal is dismissed with costs payable to the respondent
    in the agreed amount of $10,000 inclusive of disbursements and all applicable
    taxes.

G.R. Strathy C.J.O.

B. Zarnett J.A.

Wilton-Siegel J.


