



COURT OF APPEAL FOR ONTARIO

CITATION: Perodeau
v. TD Canada Trust, 2021 ONCA 670

DATE: 20210929

DOCKET: C68417

Paciocco, Nordheimer and Coroza
JJ.A.

BETWEEN

Dominic Perodeau and Scarlett
Perodeau

Appellants

and

TD Canada Trust and TD Insurance

Respondents



Dominic Perodeau, acting in person

Jeffrey Kukla, for the respondent TD
Canada Trust

Arie Odinocki, for the respondent TD
Insurance

Heard on September 3, 2021 by
videoconference

On appeal from the order of Justice Sylvia
Corthorn of the Superior Court of Justice, dated March 11, 2020.



REASONS FOR DECISION





[1]

The appellants, Dominic Perodeau and Scarlett Perodeau appeal a summary
judgment order dismissing an action they commenced on January 22, 2018, against
the respondents, Toronto-Dominion Bank (TD Bank) and Primmum Insurance
Company (Primmum).
[1]
The appellants also seek leave to appeal the substantial indemnity costs orders
made against them. For the reasons that follow, both the summary judgment
appeal and the costs appeal are dismissed.

[2]

The essential facts are these. TD Bank held the charge (mortgage) on
the appellants property, 386 Queensborough Road, RR #3 in Tweed, Ontario (the
property). The mortgage required the appellants to insure the property. The
mortgage also authorized TD Bank to secure insurance and add the costs to the mortgage
payments if the appellants failed to secure insurance.

[3]

The appellants acquired homeowners insurance from Primmum on the
property, effective November 25, 2004. The Primmum policy was still in effect up
to and including March 2, 2014 but the appellants defaulted on the premium payments.
On February 14, 2014, Primmum sent a registered letter notifying the appellants
that the policy was being terminated effective March 3, 2014 for non-payment of
premiums. The appellants made no further payments on the policy and did not
secure replacement insurance, which they considered to be prohibitively
expensive. The appellants then managed to secure a mortgage renewal from the
respondent, TD Bank, despite not having insurance in place on the property.

[4]

By January 2016, the appellants defaulted on the mortgage. TD Bank
demanded payment of the arrears and commenced an action for payment on the mortgage
on May 18, 2016. In May 2016, the property was severely damaged by a fire. On
November 14, 2017, TD Bank was granted summary judgment enforcing the mortgage
debt.

[5]

Two months later, on January 22, 2018, the appellants commenced the
action that is the subject of this appeal in which they sought damages, a stay
of TD Banks writ of possession on the property, and an order that they be
permitted to make mortgage payments. In that action, the appellants claimed
that TD Bank breached its fiduciary duty to them to caution them that they had not
insured the property before renewing their mortgage. The appellants also claimed
that Primmum breached a fiduciary duty it owed to the bank to ensure that the
property was insured before the mortgage was renewed. In granting summary
judgment in favour of the respondents, the motion judge held that no fiduciary
duties were owed, that the action against TD Bank was
res

judicata,
and that the action was statute barred against both respondents, pursuant to
the
Limitations Act
, 2002
, S.O. 2002, c. 24.

[6]

The appellants, who are self-represented, raise numerous grounds of
appeal against the summary judgment. However, they do not challenge the merits
of the motion judges conclusions that no fiduciary duties exist or that their
action was statute barred.

[7]

First, the appellants claim that the motion judge erred by not ensuring
that they were represented, given that Dominic Perodeau was a Self Litigant,
and Scarlett Perodeau is a party under disability entitled to a litigation
guardian pursuant to rule 7.01 of the
Rules of Civil Procedure
, R.R.O.
1990, Reg. 194. We disagree. Litigants are presumed to be capable of conducting
ligation and the appellants have not rebutted that presumption. With respect to
Dominic Perodeau, a litigant is not entitled to representation simply because
they are unrepresented as there is no broad general right to legal counsel in
Canada (
Christie v. British Columbia (Attorney General)
, 2007 SCC 21, [2007]
1 S.C.R. 873 at paras. 23, 26).

[8]

With respect to Scarlett Perodeau, although unsworn evidence was
presented to show that she suffered from mental illness, no evidence was
presented to establish that she was mentally incapable and therefore a party
under disability within the meaning of rules 1.03(1), and 7.01 of the
Rules
of Civil Procedure
.

It was the appellants onus to establish that
Scarlett Perodeau was mentally incapable and to establish the extent of her
incapacity if it existed (
Costantino v. Costantino
, 2016 ONSC 7279, [2016]
O.J. No. 5963 at para. 38;
Sosnowski v. Johnson
, [2006] O.J. No. 3731 (Ont.
C.A.), at para. 2). They failed to do so. Accordingly, the motion judge was
under no obligation to see that either of the appellants were represented
before her. This ground of appeal must therefore fail.

[9]

Second, the appellants claim that the motion judge erred in granting
summary judgment when there were shortcomings in the procedure, including the
failure of the respondents to serve affidavits or produce documents, the
failure of the respondents to produce witnesses for cross-examination, and the
failure by the motion judge to initiate an objection to improper submissions
made by counsel for TD Bank. These grounds of appeal cannot succeed. At the
hearing, the appellants did not object to the motion judge proceeding to
summary judgment. Nor have the appellants established that the respondents
failed to serve affidavits or produce material documents or information.
Indeed, the evidence before us is to the contrary. Moreover, they made no
request to cross-examine the witnesses they claim the respondents failed to
produce, and they have not shown that counsel for TD Bank made inappropriate
submissions. We appreciate the challenges that self-represented litigants may
have in navigating the legal process. However, the appellants could have
avoided the conditions they now complain of by taking simple, common sense
steps. We see no shortcomings in the procedures employed during the motion, or
in the motion judges decision to proceed to summary judgment.

[10]

Third,
the appellants submit that the motion judge erred by failing to address their
claim of On Going Tortious Harm, and the Civil Interpretation of Res
Judicata. The motion judge was under no obligation to address a tortious harm
claim. No such action was pled, and we see no air of reality to such claim.

[11]

Nor
do we agree that the motion judge erred in her treatment of the law of
res

judicata
. Manifestly, the action against the respondents that the
motion judge dismissed was an unmeritorious attempt by the appellants to delay
the mortgage enforcement by relitigating the mortgage enforcement decision of
November 14, 2017 that they lost. We see no error in the motion judges
res

judicata

analysis. Her reasons are legally accurate, clear, and
supported. Even if the motion judge had erred in her treatment of the law of
res

judicata
, that error would be moot since the appellants have not
appealed her conclusion that the action is statute barred and that no fiduciary
relationship existed. Each of those conclusions, on their own, defeat the
appellants action, even if the action had not been
res

judicata
.

[12]

Since
none of the grounds of appeal relating to either respondent have been made out,
the appeal is dismissed.

[13]

With
respect to the application for leave to appeal costs, the appellants have
sought to present fresh evidence of an offer they made to settle. That fresh
evidence is not admissible because it can have no bearing on the correctness of
the costs award. The respondents achieved greater success through the judgment
than they would have achieved had they accepted the settlement offer.

[14]

We therefore
grant leave to the appellants to appeal the costs order, but that appeal is
also dismissed.

[15]

Costs
on the appeal are granted respectively to TD Bank in the amount of $13,138.15,
and Primmum in the amount of $10,607.58. Both costs awards are inclusive of
disbursements and applicable taxes.

David
M. Paciocco J.A.

I.V.B.
Nordheimer J.A.

S.
Coroza J.A.





[1]

Primmum is mistakenly designated in the style of cause in
this appeal as TD Insurance.



