Sky v. The Toronto-Dominion Bank

2025 BCSC 494 Sky v. The Toronto-Dominion Bank

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sky v. The Toronto-Dominion Bank, 2025 BCSC 494 Date: 20250319 Docket: S252590 Registry: New Westminster Between: Thomas Sky Plaintiff And The Toronto-Dominion Bank Defendant Before: The Honourable Justice M. Taylor Reasons for Judgment Counsel for the Plaintiff: J. Wang Counsel for Defendant: K. Hanowski L.N. Frame Place and Date of Hearing: New Westminster, B.C. March 7, 2025 Place and Date of Judgment: New Westminster, B.C. March 19, 2025 Table of Contents I. Background.. 3 II. Analysis. 5 A. Applicable Law.. 5 B. Application to the Facts. 7 III. Order.. 17 [1] The plaintiff, Thomas Sky, seeks leave to further amend his notice of civil claim in this proceeding. This is opposed by the defendant, The Toronto-Dominion Bank ("TD"). I. Background [2] Mr. Sky was a customer of TD and had several accounts with TD before October 2018, including bank and credit card accounts, first and second mortgages (the "Mortgages") on a property he owned in Nanaimo, British Columbia (the "Property") and a home equity line of credit (the "HELOC"), also secured by the Property. There were numerous agreements between the parties, including an agreement relating to the HELOC (the "HELOC Agreement") stipulating that the HELOC was payable on demand. [3] On August 8, 2018, Mr. Sky had a conversation with a teller at the Nanaimo TD branch which the

teller perceived to be offensive and intimidating. As a result of that conversation and other interactions Mr. Sky had with bank staff on different occasions, a decision was made by TD management to terminate its banking relationship with Mr. Sky. [4] On or about September 21, 2018, TD formally notified Mr. Sky that his bank and credit card accounts would be closed by October 26, 2018, the HELOC would be suspended and the balance of debt owing under the HELOC would be due on November 20, 2018 and that the Mortgages would not be renewed when they reached their maturity dates in 2022. [5] Commencing in November 2018, Mr. Sky failed to pay the outstanding balance under the HELOC, which constituted a breach of the HELOC Agreement. On or about February 26, 2019, TD commenced a foreclosure proceeding relating to the unpaid HELOC debt in the British Columbia Supreme Court (the "Foreclosure Proceeding"). [6] On May 2, 2019 a Supreme Court judge (the "Foreclosure Judge") made an order nisi in the Foreclosure Proceeding allowing Mr. Sky a six-month redemption period ending November 1, 2019 (the "Order Nisi"). [7] Mr. Sky ultimately marketed and sold the Property and repaid the outstanding balance on the HELOC within the redemption period. [8] On June 6, 2019, Mr. Sky filed a notice of civil claim ("NOCC") as a self-represented litigant claiming breach of contract and a violation of his

rights under the Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11a [Charter] and seeking damages against TD. [9] Mr. Sky amended the NOCC for the first time on July 9, 2019 (the "First Amended NOCC"). [10] Mr. Sky subsequently retained legal counsel, Charles Lugosi, on October 8, 2019. Mr. Lugosi filed a further amended NOCC on May 31, 2021 (the "Second Amended NOCC") which substantially revised the First Amended NOCC, and added a number of new causes of action in addition to the Charter claim, including breach of fiduciary duty, conversion, breach of contract, proprietary estoppel, tortious interference and vicarious liability. [11] Examinations for discovery for both parties were conducted in December 2021. [12] In May 2022, Mr. Sky terminated his retainer with Mr. Lugosi. In November 2022, Mr. Sky retained his current counsel, Jack Wang. [13] On May 23, 2024, the NOCC was further amended on consent (the "Third Amended NOCC"). In the Third Amended NOCC, large sections of text and many of the causes of action in the Second Amended NOCC were removed. [14] On July 29, 2024, TD filed an application seeking orders to strike or dismiss the Third Amended NOCC pursuant to Rules 9-5 and 9-6 on the grounds that the pleading was inadequate, an abuse of process and that there were no triable

issues, among other things (the "TD Application"). Counsel for both parties attended court on two occasions to argue the TD Application but on both occasions the TD Application was not heard due to the unavailability of judges. TD advises that it still intends to proceed with the TD Application. [15] Subsequently, Mr. Wang sought the consent of TD to file a fourth amended NOCC but TD refused to consent, taking the position that TD wanted the TD Application to be heard first. Accordingly, Mr. Sky now applies to court seeking an order permitting him to file a fourth amended NOCC. II. Analysis A. Applicable Law [16] The principles applicable to pre-trial pleadings amendments were recently summarized by Justice Gibb-Carsley in 1305788 B.C. Ltd. v. Sodhi Dream Homes Ltd., 2023 BCSC 445 at paras. 27-29: a) the court has a wide discretion to permit amendments so as to enable the real issues between the parties to be determined; b) the discretion to permit amendments is unfettered, subject only to the general rule that it be exercised judicially; c) the overriding consideration is the interests of justice generally and to direct what is just and convenient between the parties, to allow the real issue between the parties to be litigated; d) on an application to amend, the facts alleged are taken as established; e) while useless amendments that do not advance a reasonable cause of action

or defence are to be avoided, justice is generally best served by permitting amendments that will allow the real controversy between the parties to be decided on the merits; f) the court will not give its sanction to amendments which violate the rules that govern pleadings, including the prohibition of pleadings which disclose no reasonable claim; g) amendments may not be allowed if they will cause actual and meaningful prejudice to the opposing party-mere potential prejudice is insufficient. Rather the party resisting an amendment must prove actual and significant prejudice; h) additional considerations include any delays in applying for the amendment, the reasons for such delay and whether deliberate or voluntarily dilatory conduct is involved, particularly when a new cause of action is proposed to be added that would otherwise preclude the operations of a limitation defence; i) costs are the general means of protecting against prejudice unless it would be a wholly inadequate remedy; and j) courts should only disallow an amendment as a last resort. [17] As noted by Justice Matthews in Testar Estate v. Leslie, 2023 BCSC 611, aff'd 2024 BCCA 129 [Testar], courts have generally applied a "generous approach" to pleadings amendments, although that generosity does have its limits, including in relation to claims that have no reasonable chance of success: [27] Despite the generous approach to pleadings, the appellate authorities have held that claims that have no reasonable chance of success ought to be struck before trial: Canada (Attorney General) v. Frazier, 2022 BCCA 379 at para. 19, citing Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at para. 18 and Imperial Tobacco at para.

19. In undertaking this assessment, it is very important that the court only strike pleadings or disallow amendments where the claim is bound to fail as pled or as sought to be pled, otherwise the court runs the risk of pursuing efficiency at the expense of the development of the common law: Grove v. Yukon (Ministry of the Environment), 2022 YKCA 8 at paras. 15-16. [28] It is an abuse of process for a party to subject another party to multiple rounds of amendments precluding that party from knowing the case it has to meet. In such cases, proposed amendments that have not been properly drafted but could logically be redrafted to meet the tests of pleading material facts that disclose a cause of action may not be allowed: Strata Plan LMS3259 v. Sze Hang Holding Inc., 2012 BCCA 196. B. Application to the Facts [18] I note at the outset that the manner in which the proposed amendments were set out in a draft was confusing as it was difficult to differentiate the proposed underlined amendments from the prior amendments in the Third Amended NOCC, which were also included in the draft in underlined format. Counsel clarified at the hearing that the sections of text marked in yellow are the only amendments being sought on this application. [19] The amendments proposed by Mr. Sky fall into five categories: 1. The addition of text to elaborate that the breach of contract claim against TD

includes a specific reference to the Service Terms of the Financial Services Agreement and in particular Service Terms G2 and G14 (paras. 95, 95b and 110a under Part 1 and para. 19 under Part 3); 2. The addition of a reference under the breach of contract claim to TD's duty to exercise its discretion in good faith (para. 19 of Part 3); 3. A small modification to the language relating to breach of contract claim in Part 2 (para. 1); 4. The removal of certain causes of action, including: the Charter claim (paras. 1, 6 and 12 of Part 2), the promissory estoppel claim (paras. 26, 29 and 30 of Part 3), the reference to various additional "contracts" and "owed duties" (paras. 20-25 of Part 3), the particulars of certain damages suffered (paras. 116-118 of Part 1), the removal of the refence to costs, interest and general grounds (paras. 47-49 of Part 3) and various others editorial or "clean up" type amendments; and 5. The addition of language relating to alleged losses suffered by Mr. Sky caused by TD's decision to demand repayment of the HELOC loan and the commencement of Foreclosure Proceeding (paras. 110b-110h and 115a-e of Part 1). [20] At the outset of the hearing, TD opposed all the proposed amendments. However, during the course of the hearing, counsel for TD quite reasonably withdrew the objection to the amendments in categories 1-4 above. [21] In my view this was

appropriate. Taking into account the principle that "courts should only disallow an amendment as a last resort", my view is that these amendments should be permitted. The amendments in categories 1-3 do not add new causes of action but merely particularize the existing causes of action in the Third Amended NOCC. They are consistent with the purpose of pleadings, which is to help determine the real question between the parties with greater specificity. The deletions in category 4 also serve a similar purpose as they in fact have the effect of reducing the number of matters in controversy between the parties by eliminating claims which are no longer at issue (such as the Charter claim, for example) and thereby giving TD greater clarity about the case it has to meet. While TD is correct that Mr. Sky's claims have been a "moving target", Mr. Wang advised at the hearing that his purpose relating to these amendments was to simplify and clarify the claims, and I believe these amendments do in large part have that effect. In addition, I am not persuaded that these amendments cause any material prejudice to TD other than delay, which can be remedied by a costs order. Thus, leave is granted to Mr. Sky to amend the Third Amended NOCC accordingly. [22] However, TD strongly opposed the proposed amendments in category 5, with the exception of 110h and 115(d) (relating to bank charges). In my

view, the TD objection is well-founded. As noted by Justice Matthews in Testar, pleadings amendments should not be granted where they are bound to fail or otherwise constitute an abuse of process. TD argues, correctly in my view, that the proposed amendments are an abuse of process because they are a collateral attack on the Order Nisi. [23] As noted in Ba-Oose Inc. v. HSBC Bank Canada, 2011 BCCA 511 [Ba-Oose CA] at para. 21, an order nisi is a final order of the court, which "cannot be granted unless the court is satisfied that the mortgage is both valid and legally enforceable" and the court has determined "the amounts secured by the mortgage and whether there has been a default". [24] Before issuing the Order Nisi in this proceeding, the court made various ancillary findings, including that: · TD gave Mr. Sky reasonable notice of its demand for repayment (Transcript of Foreclosure Proceedings on May 1, 2019, at p. 26, lines 30-34); · TD was entitled to make such a demand (Transcript of Foreclosure Proceedings on May 1, 2019, at p. 25, lines 9-28); and · Mr. Sky defaulted by failing to pay in response to a valid payment demand (Transcript of Foreclosure Proceedings on May 1, 2019, at p. 25, lines 9-28). [25] Mr. Sky was present at the hearing and had the opportunity to oppose the granting of the Order Nisi. He did not appeal the Order Nisi. [26] Now, in paragraphs 110b-g of

the proposed amendments, Mr. Sky seeks to challenge the court's ancillary findings relating to the Order Nisi. For example: · In paragraphs 110b, Mr. Sky pleads that "TD's breach resulted in the Plaintiff's defaulting under the Agreement for the Home Equity Line of Credit as he could not pay the whole balance by November 20, 2018, as demanded by the Discontinuing Financial Services Letter"; · In paragraphs 110c-g, Mr. Sky pleads that TD's actions in starting the Foreclosure Proceedings and obtaining the Order Nisi caused him to suffer losses that resulted directly or indirectly from the issuance of the Order Nisi, such as: o losses suffered when Mr. Sky sold his property "to avoid losing large amounts of equity in the house through a court ordered sale and paying the associated legal fees"; o loss of an "opportunity to gain increased equity from the rising value of residential properties since the sale" of the Property that was the subject of the Order Nisi; o associated damage to the plaintiff's credit rating and retirement prospects; and o damages associated with his inability to maintain and upkeep a separate rental property due to "TD's discontinuance of the home equity line of credit that was the subject of the order nisi." [27] Obviously, the underlying premise of the above allegations is that TD was not legally entitled to make demand for repayment of the HELOC loan,

that the notice given was not reasonable and that it was improper for TD to commence the Foreclosure Proceedings, all of which expressly contradict the findings of the Foreclosure Judge underlying the granting of the Order Nisi. [28] In Coast Capital Savings Federal Credit Union v. Arbutus Bay Estates Ltd., 2021 BCCA 185, the Court of Appeal made it clear that an order nisi will not be granted unless it is manifestly clear that the matter raises no bona fide triable issues: [30] The leading authority with respect to the granting of an order nisi is HGE. An order nisi will not be granted unless it is manifestly clear that the matter raises no bona fide triable issues. The onus is much the same as "beyond a reasonable doubt": HGE at para. 23. [31] In determining there were no triable issues in Royal Bank, McLachlin J. (as she then was) said the following at 327: The bank's claim is for money loaned pursuant to a contract of mortgage. No defences to that claim, whether in the nature of objections to jurisdiction, denial, demurrer or confession and avoidance, are raised. It is not disputed that the money was loaned, nor that it is repayable, together with interest. Nor is it denied that the contracts which the mortgagors signed gave the bank an equitable mortgage on their home in the amount of their indebtedness. [33] Moreover, to be considered a bona fide triable issue, the issue must be one that goes to the root or foundation of the foreclosure action: Griffin v. 0904713 B.C. Ltd., 2013 BCSC 273 at para.

41. In other words, the issue must call into question the validity of the mortgage, the ability of the mortgagee to claim foreclosure under the mortgage, or some other real question as to the amount owing under the mortgage: Canadian Imperial Bank of Commerce v. Grigg, 2017 BCSC 1711 at para. 21, citing Griffin. [29] The Foreclosure Judge who granted the Order Nisi in this case found no triable issues with respect to the validity of the HELOC Agreement, TD's rights to call the HELOC loan on demand, the reasonableness of the demand or the ability of TD to commence the Foreclosure Proceedings. Now, in the proposed further amendment to the Third Amended NOCC, Mr. Sky is purporting to plead that there are in fact triable issues with respect to all these matters. [30] The courts have consistently found that pleadings of this nature are an impermissible collateral attack on the validity of an order nisi and therefore amount to an abuse of process. In HSBC Bank Canada v. Ba-Oose, Inc., 2011 BCSC 4 [Ba-Oose SC (the chambers judgment appealed in Ba-Oose CA), the plaintiff began a civil action against the defendant bank after a court had granted an order nisi and an order for exclusive conduct for sale of his property. In the civil action the plaintiff alleged that the defendant bank had been negligent and engaged in deceptive and unconscionable practices and alleged that he had suffered

damages as a result and sought an order staying the foreclosure action. In chambers, Willcock J. (as he then was) found that the civil action was an abuse of process and that the order nisi precluded the plaintiff from advancing arguments made in the civil action. He stated: [69] The plaintiffs' allegations that the mortgage loan is unenforceable as a consumer transaction that was entered into on the basis of a misrepresentation or nondisclosure is inconsistent with the order nisi and thus constitutes a collateral attack on its validity. The words of Fleming James, Hayward, and Leubsdorf (Fleming James, Jr., Geoffrey C. Hayward, Jr. and John Leubsdorf, Civil Procedure, 4th ed. (1992) at p. 581) are as applicable here as they were in Van De Mortel v. Bank of Montreal, 2007 BCSC 1049, and Hoque v. Montreal Trust Co. of Canada (1997), 162 N.S.R. (2d) 321 (C.A.), where they were quoted by Cromwell J.A. (as he then was) at para. 67: ...the purpose of a lawsuit is not only to do substantial justice but to bring an end to controversy. It is important that judgments of the court have stability and certainty. This is true not only so that the parties and others may rely on them in ordering their practical affairs (such as borrowing or lending money or buying property) and thus be protected from repetitive litigation, but also so that the moral force of court judgments will not be

undermined. [31] Justice Willcock further made it clear that allegations similar to those being made by Mr. Sky should properly be raised in defence to the claim for judgment on the mortgage, as they go to the root of the bank's claim: [ ] [72] In the case at bar, as in 420093 B.C. Ltd. v. Bank of Montreal (1995), 128 D.L.R. (4th) 488 (Alta. C.A.), the plaintiff impugns the Bank's entitlement to seek repayment of the loan secured by the mortgage upon which it has judgment. Dr. Metros claims to have entered into the mortgage loan on the basis of a misrepresentation and claims to have entered into the renewals of the mortgage under duress. These allegations should have been raised in defence to the claim for judgment on the mortgage. Those issues do not properly arise only in relation to the amount owing under the mortgage as interest, and are not matters for determination by the Registrar on a reference. [73] Had the matters which are the substance of this Stay Action been raised in defence to the foreclosure, they would have gone to the root of the Bank's claim and put in issue the Bank's right to an order nisi, and to judgment under the mortgage. This attempt to relitigate issues already decided or deemed to have been decided amounts to an abuse of process and is barred. [32] An appeal from the ruling of the chambers judge was dismissed in Ba-Oose CA. In affirming the ruling,

Groberman J.A. further elaborated upon the applicable principles, stating that "[o]nce an order nisi is pronounced, it is not open to a mortgagor to challenge the validity of the mortgage by way of a separate action": [21] In my view, the chambers judge was correct in finding that this action (or, at least, most of it) is an abuse of process. As the respondent contends, an order nisi in a foreclosure proceeding is a final judgment of the court (see Bank of Montreal v. Singh (1979), 109 D.L.R. (3d) 117 (B.C.C.A.)). An order nisi of foreclosure cannot be granted unless the court is satisfied that the mortgage is both valid and legally enforceable. The court must also determine the amounts secured by the mortgage and whether there has been a default. [22] Once an order nisi is pronounced, it is not open to a mortgagor to challenge the validity of the mortgage by way of a separate action. Because the validity and enforceability of the mortgage are prerequisites to the granting of an order nisi, the facts necessary to determine that the mortgage is enforceable become res judicata. [23] In the case before us, most of the plaintiffs' claims go directly to the question of whether the mortgage was valid and enforceable according to its terms. If the plaintiffs wished to argue that the mortgage was unconscionable or entered into in an unlawful manner, their opportunity to do so was in

defence of the application for an order nisi of foreclosure. They could not consent to the granting of the order nisi and then commence a separate action to challenge the validity of the mortgage. The order nisi, either expressly or by implication, affirmed the legality and enforceability of the mortgage. [33] In Hoessmann Estate v. Aldergrove Credit Union, 2018 BCSC 256, in which an order nisi had been granted and a property sold pursuant to court order after a six month redemption period, the plaintiff thereafter commenced a civil action claiming losses arising from the foreclosure. Justice Ball dismissed the claim as an abuse of process, citing Ba-Oose CA. [86] An order nisi of foreclosure is founded on the Court being satisfied that a mortgage is valid and legally enforceable. The order also specifies the amount owing pursuant to the mortgage and that the mortgage is in default. Those findings have, in this case, been made in the order nisi and appeals therefrom have been unsuccessful. As a result, a mortgagor has no ability to challenge the validity of the mortgage in a separate action such as this; the principle of res judicata applies: Ba‑Oose Inc. v. HSBC Bank Canada, 2011 BCCA 511 at paras. 21-22. See also: Hoque v. Montreal Trust Co. of Canada (1997), 162 N.S.R. (2d) 321 (C.A.); Reliable Mortgages Investment Corp. v. Chan, 2014 BCCA 14 at paras. 35-36; and 420093 B.C.

Ltd. v. Bank of Montreal, 1995 ABCA 328 at paras. 46-47. [87] The plaintiff has mounted allegations of negligence, gross negligence, breach of a duty of care, breach of contract, and fraudulent or negligent misrepresentation. As a first finding that must be made in relation to these allegations, there is a complete lack of any particulars in the Notice of Civil Claim in relation to any of the listed causes of action which would permit the plaintiff any potential for success in this action. Second, the entirety of this action is hereby dismissed because of res judicata or collateral attack, neither permitted by the law. [88] In Ba-Oose Inc., Groberman J.A. stated the following at paras. 24-26: [24] The only issue raised by the plaintiffs in their claim that does not go directly to the propriety of the order nisi is their claim that they were induced to reject an offer to sell the property in November 2007 by the bank's representations that it was prepared to renew the mortgage. In my view, the court, in issuing an order nisi of foreclosure, did not implicitly decide that issue against the plaintiffs. Therefore, the doctrine of issue estoppel does not prevent the plaintiffs from raising that matter in a separate action. [25] Issue estoppel, however, is only one of two branches of res judicata. The other branch is cause of action estoppel (see Angle v. Minister of National

Revenue, [1975] 2 S.C.R. 248 at 254 and Cliffs over Maple Bay Investments Ltd. (Re), 2011 BCCA 180 at para. 27). In Hoque v. Montreal Trust Co. of Canada (1997), 162 N.S.R. (2d) 321 (C.A.), Cromwell J.A. (as he then was) said this about the two branches of res judicata: [21] Res judicata is mainly concerned with two principles. First, there is a principle that "... prevents the contradiction of that which was determined in the previous litigation, by prohibiting the relitigation of issues already actually addressed.": see Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1991), at p.

997. The second principle is that parties must bring forward all of the claims and defences with respect to the cause of action at issue in the first proceeding and that, if they fail to do so, they will be barred from asserting them in a subsequent action. This "...prevents fragmentation of litigation by prohibiting the litigation of matters that were never actually addressed in the previous litigation, but which properly belonged to it.": ibid at 998. Cause of action estoppel is usually concerned with the application of this second principle because its operation bars all of the issues properly belonging to the earlier litigation. [26] It was not necessary for the court, in issuing an order nisi of foreclosure, to examine the question of whether a misrepresentation by the bank as to its readiness to renew the mortgage induced the plaintiffs to forego the sale of the property. Nonetheless, it would have been sensible for the matter to have been raised in the foreclosure proceeding, as it was closely tied to the issues that were before the court in that proceeding, and could have affected the judgment. It is strongly arguable, therefore, that cause of action estoppel would preclude the raising of that issue in a new action, even though it is not a matter covered by issue estoppel (see, for example, 420093 BC Ltd. v. Bank of Montreal (1995), 128 D.L.R. (4th) 488, particularly at

para. 42). [89] On the facts at bar, the allegations in this proceeding go to the root of the mortgage claim. More specifically, the allegations of negligence, gross negligence, breach of a duty of care, breach of contract, and fraudulent or negligent misrepresentation are all derived from the mortgage on the Property, and the plaintiff's related interactions with ACU. As such, they should have been argued in the foreclosure proceedings which resulted in the order nisi, a final judgment. [90] Akin to what was seen in 420093 B.C. Ltd. (at para. 42), the subsequent claims in this proceeding could have been raised in the foreclosure action as matters of equitable set-off. Cause of action estoppel therefore bars the claims in this proceeding, which are dismissed as disclosing no reasonable claim and as an abuse of process pursuant to Rule 9-5. [34] In my view similar reasoning is applicable in this case. The allegations that Mr. Sky seeks to add in his proposed amendment to his Third Amended NOCC go to the root of the claims in the Foreclosure Proceeding, as they relate to the validity of TD's enforcement of the HELOC on the Property, the calling of the HELOC loan, TD's right to commence the Foreclosure Proceedings and Mr. Sky's related interactions with TD concerning these matters. As such, they could and should have been argued as a defence in the foreclosure proceedings which

resulted in the Order Nisi, a final judgment. Cause of action estoppel therefore bars the related claims in this proceeding, which disclose no reasonable claim and are an abuse of process pursuant to Rule 9-5. [35] Counsel for Mr. Sky relies upon Northland Bank (Liquidator of) v. Kocken, 1993 CanLII 287 (B.C.C.A.) for the proposition that the Supreme Court Civil Rules do not derogate from the legitimate rights of mortgagors and I do not disagree with that proposition. However the facts in that case were very different form this case, as it involved an appeal from an order nisi where the Court of Appeal ruled that the chambers judge had erred by failing to rule that there were triable issues and directed the proceeding to be set down for trial. In this case, by contrast, Mr. Sky did not appeal nor did he allege at the hearing relating to the Order Nisi that there were triable issues. [36] Counsel for Mr. Sky also made the argument that Mr. Sky is not in fact collaterally attacking the Order Nisi but merely alleging that the Order Nisi and Foreclosure Proceedings were a causal effect of the earlier breach of contract and good faith by TD, and therefore a valid basis for his damages claim (the premise apparently being that Mr. Sky can claim against TD for every adverse financial consequence to him that followed the breach, including consequences flowing from subsequent court

orders). [37] The logical flaw with this argument, as I see it, is that it appears to inaccurately characterize the Order Nisi and foreclosure proceedings as natural events (analogous, for example, to falling dominoes) which are part of an ongoing causal chain, rather than what they really are which is the active enforcement by TD of its legal rights by recourse to the courts and a final determination being made by a judge on those rights. A final order of a judge is not a mere "causal effect" in an ongoing chain into the future; to the contrary, a final order by a judge in effect brings the prior causal chain of events in the dispute to an end by determining the legal implications of those prior events with respect to the matters addressed in the order. As noted by Justice Willcock in Ba-Oose SC, a final order brings an end to controversy, enables parties to order their practical affairs (such as borrowing or lending money or buying property) and protects them from repetitive litigation. If parties could commence new actions claiming damages for the financial consequences of earlier adverse court orders (in effect treating court orders as compensable "causes" of future losses) there would be no end to litigation. [38] For all the above reasons, Mr. Sky's request to amend the Third Amended NOCC by adding paras. 110b-g and 115a, b, c and e is dismissed. Although para. 114b was

not one of the amendments requested by Mr. Sky on this application, in my view it should also be struck for the same reasons as stated above because it alleges that TD wrongfully discontinued the HELOC loan, causing a loss of a business opportunity to him. This too was an issue expressly or impliedly addressed in the Order Nisi. [39] With respect to paras. 110h and 115d, the allegation concerning extra bank service charges appears distinct from the issues that were expressly or impliedly addressed in the Order Nisi. Therefore I will permit the amendments on that limited basis. [40] Similarly, with respect to para. 110g, the allegations concerning detrimental impacts on Mr. Sky's credit rating could also potentially be considered distinct (if redrafted), but only to the extent that they are redrafted to expressly exclude any express or implied reference to the impacts on his credit rating of TD's enforcement of the agreements concerning the Mortgages, the HELOC, the Foreclosure Proceeding and the Order Nisi. For example, a pleading that TD negatively impacted Mr. Sky's credit rating due solely to its dealings with Mr. Sky's bank and chequing accounts could in my view be appropriate, as it would not appear to address an issue expressly or impliedly addressed in the Order Nisi. However, that proposed amendment is not before me and I therefore make no order in that regard. [41]

With respect to the amendments in categories 1-4 discussed above, the same rationale applies. These material facts and claims appear distinct from the issues expressly or impliedly addressed in the Order Nisi, as they relate to alleged breaches by TD of contracts and duties separate from the HELOC and the Mortgages and therefore not necessarily raising triable issues that would have been relevant in the Foreclosure Proceedings. As noted by Justice Matthews in Testar, in undertaking an assessment as to whether to strike pleadings, it is "very important that the court only strike pleadings or disallow amendments where the claim is bound to fail as pled or as sought to be pled, otherwise the court runs the risk of pursuing efficiency at the expense of the development of the common law." III. Order [42] For all the foregoing reasons, Mr. Sky is granted leave to further amend the Third Amended NOCC in accordance with the amendments described in categories 1-4 in paragraph 19 above. [43] Leave is denied for Mr. Sky to make the amendments in paras. 110b-110g and 115a, b, c, and e of Part 1. Para. 114b is struck. Leave is granted for the amendments in paras. 110h and 115d. [44] The parties have leave to speak to the issue of costs. "M. Taylor J."