Di Biase v. The Toronto Dominion Bank
The court dismissed the appeal because the law firm acted as agent for the bank and therefore no independent basis existed for a claim against it, Mikhail lacked legal standing to bring the actions, and Di Biase’s claims should have been advanced in the bank’s enforcement proceedings; the striking order was...
Source-derived case information.
- Citation
- 2010 ONCA 482
- Parties
- Appellant: Giuseppina Di Biase; Appellant: Michael Mikhail; Respondent: The Toronto Dominion Bank; Respondent: Spiegel Nichols Fox LLP
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 6 July 2010
- Procedural Posture
- Civil Appeal / Court of Appeal Decision on Appeal From Superior Court Striking Order
- Outcome
- Appeal dismissed; striking order upheld
- Legal Topics
- Striking Pleadings, Standing, Enforcement Proceedings, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Giuseppina Di Biase
Appellant
Michael Mikhail
Appellant
The Toronto Dominion Bank
Respondent
Spiegel Nichols Fox LLP
Respondent
Procedural Posture
Civil Appeal / Court of Appeal Decision on Appeal From Superior Court Striking Order
Legal Issues
- 1 Whether there was any basis for a claim against Spiegel Nichols Fox LLP
- 2 Whether appellant Mikhail had legal standing to bring the claims
- 3 Whether appellant Di Biase’s claims should have been raised in the bank’s enforcement proceedings
Ratio Decidendi
The court dismissed the appeal because the law firm acted as agent for the bank and therefore no independent basis existed for a claim against it, Mikhail lacked legal standing to bring the actions, and Di Biase’s claims should have been advanced in the bank’s enforcement proceedings; the striking order was therefore upheld and costs awarded.
Court Disposition
Appeal dismissed; striking order upheld
Orders
- Order of Sproat J. dated August 28, 2009 striking the claims in both actions is upheld
- Respondents awarded costs of the appeal fixed at $1000 inclusive of disbursements and GST
Full Case Text
Judgment text and source record
1 paragraphs
Di Biase v. The Toronto Dominion Bank Collection Decisions of the Court of Appeal Date 2010-07-06 Neutral citation 2010 ONCA 482 Docket numbers C51075 Judges MacPherson, James C.; Cronk, Eleanore Ann; Karakatsanis, Andromache Rhea Subject Civil Decision Content CITATION: Di Biase v. The Toronto Dominion Bank, 2010 ONCA 482 DATE: 20100706 DOCKET: C51075 COURT OF APPEAL FOR ONTARIO MacPherson, Cronk and Karakatsanis JJ.A. BETWEEN Giuseppina Di Biase and Michael Mikhail Plaintiff (Appellant) and The Toronto Dominion Bank and Spiegel Nichols Fox LLP Defendant (Respondent) Michael Mikhail and Giuseppina Di Biase, acting in person Ian Latimer, for the respondents Heard: July 5, 2010 On appeal from the judgment of Justice John R. Sproat of the Superior Court of Justice, dated August 28, 2009. APPEAL BOOK ENDORSEMENT [1] The appellants, Giuseppina Di Biase and Michael Mikhail, appeal from the order of Sproat J. of the Superior Court of Justice dated August 28, 2009, striking their claims in two actions against the respondents Toronto Dominion Bank and Spiegel Nichols Fox LLP in their entirety. The actions related to the conduct of the respondents respecting the enforcement of two mortgages on properties in Brampton and Belleville on which the appellants defaulted. [2] We agree with Sproat J.’s analysis and disposition. [3] There was no basis for any claim against SNF. At all times, SNF was acting for TD and its actions would be the responsibility of TD. The appellant Mikhail has no legal standing to advance a claim in either action. The appellant Di Biase’s claims could and should have been made in the enforcement proceedings commenced by TD. [4] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $1000 inclusive of disbursements and GST.