Executive Summary: Key Legal and Evidentiary Issues

• Mortgage renewal validity turned on proof of the borrower’s electronic initials and signature on the 2023 renewal agreement at the higher 6.3% interest rate.
• The court found no genuine issue requiring a trial because the borrower offered only vague, unsupported allegations in response to clear mortgage and arrears evidence.
• Defences of non est factum, fraudulent misrepresentation, and unconscionability failed for lack of particulars, corroborating evidence, or inconsistency with the borrower’s representation by independent counsel.
• The borrower’s own letter requesting a “mortgage arrear statement” was treated as an admission of default rather than proof of a dispute over the renewal terms.
• Arguments about the property not being a matrimonial home were held to be irrelevant to the validity and enforceability of the mortgage and its renewal.
• Summary judgment was granted to the lender, together with substantial costs, due to the defendants’ non-attendance and pursuit of spurious, unsubstantiated defences.

Background and parties

This case arises from a mortgage enforcement dispute between Equitable Bank, as lender and plaintiff, and Abid Mian and his spouse, Bushra Yasin, as defendants. Mian was the registered owner of a residential property at 166 Squire Crescent in Oakville, Ontario, and granted a mortgage in favour of Equitable Bank. Yasin did not borrow but signed as a consenting spouse. After the mortgage went into payment default and later fully matured without repayment, the bank brought a motion for summary judgment in the Ontario Superior Court of Justice. The motion was heard by Kurz J., with the defendants self-represented and ultimately failing to attend the hearing.

Facts leading to the mortgage dispute

Mian granted the original mortgage over 166 Squire Crescent, Oakville, to Equitable Bank on December 2, 2021. The loan amount was $892,000, with interest at 3.04% per annum and a two-year term scheduled to mature on September 1, 2023. Yasin’s role was limited to signing the mortgage as Mian’s spouse to consent to the encumbrance of the property. When the original term expired, the mortgage was renewed. The court found that on September 6, 2023, Mian and Equitable Bank agreed to a two-year renewal, this time at a higher interest rate of 6.3% per annum and a new maturity date of September 1, 2025. The bank produced the renewal documentation showing Mian’s electronic initials and electronic signature on the renewal form, along with a clear disclosure of the costs of borrowing and the revised rate. Despite that renewal, the bank established that the mortgage went into default as of July 1, 2024 and remained in arrears. Mian admitted that he stopped making payments, asserting that his refusal to pay was a form of protest against the increased renewal interest rate. However, the court noted that the mortgage had in any event fully matured by September 1, 2025, and the principal debt remained unpaid. The plaintiff’s calculation in the record showed that, as of the hearing date, the amount owing under the mortgage was $946,408.35.

Procedural history and non-attendance

The motion for summary judgment had already been adjourned previously at the defendants’ request. On August 5, 2025, the court granted an adjournment in their favour. When the matter came back before Chang J. on December 16, 2025, the defendants again failed to attend, instead sending an email after the scheduled appearance time stating that Mian had been in a motor vehicle collision five days earlier. Chang J. found that this explanation did not justify their non-attendance, and he noted that an adjournment had already been granted. He then sent the matter to triage court on January 8, 2026 with directions that the new date to be set would be “absolutely peremptory” on the defendants, subject only to the discretion of the judge hearing the motion. The defendants nonetheless failed to attend the triage court hearing where the subsequent motion date was fixed. On the actual hearing date of January 22, 2026, the defendants again did not appear. Kurz J. held the matter down and directed plaintiff’s counsel to make additional attempts to contact them by email and provide the Zoom coordinates. Counsel confirmed multiple unsuccessful attempts during the morning and over the lunch break. In light of the repeated non-attendance and prior peremptory direction, Kurz J. proceeded to hear and decide the motion in their absence. The defendants had, however, filed a statement of defence and an affidavit, prepared earlier with the assistance of former counsel, and those materials formed the basis of their defences for purposes of the summary judgment analysis.

Legal framework for summary judgment

The bank’s motion was brought under Rule 20 of the Ontario Rules of Civil Procedure. Rule 20.04(2) provides that the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. The judge relied on the Supreme Court of Canada’s guidance in Hryniak v. Mauldin and subsequent Ontario Court of Appeal decisions such as Mega International Commercial Bank (Canada) v. Yung. Those authorities emphasize that summary judgment is appropriate where the motion process allows the judge to make the necessary findings of fact, apply the law to those facts, and do so in a proportionate, timely and cost-effective manner. Each party must put its “best foot forward” on a summary judgment motion. The moving party bears the initial onus to show there is no genuine issue for trial, but the responding party cannot merely rely on bare pleadings or denials; it must present specific facts, often by affidavit evidence, demonstrating a real issue that requires a trial. The judge quoted the long-standing expression from 106150 Ontario Ltd. v. Ontario Jockey Club that a responding party must “lead trump or risk losing,” and observed that courts may draw adverse inferences when allegations in pleadings are unsupported by real evidence. Under Rule 20.04(2.1), the motion judge has enhanced powers to weigh evidence, assess credibility of deponents, and draw reasonable inferences, unless it would be in the interests of justice to defer those tasks to trial. Kurz J. reiterated that these tools are “presumptively available” on summary judgment but are not meant to compensate for evidentiary gaps where a party has failed to put forward sufficient proof. Applying this framework, the judge concluded the motion record contained all the evidence that would realistically be presented at trial and that it was an appropriate case to decide summarily.

The plaintiff’s prima facie case

Equitable Bank’s prima facie case rested on the original mortgage, the renewal agreement, and evidence of ongoing default and maturity. The bank proved that the original mortgage was granted and secured the $892,000 debt at 3.04% interest, and that a valid renewal took effect on September 6, 2023 at 6.3% interest to September 1, 2025. The renewal form showed Mian’s electronic initials inserted next to the revised terms and specific disclosure of the costs of borrowing, followed by his full electronic signature at the end of the document. The bank also provided an updated statement of the mortgage balance and arrears, establishing that payments ceased effective July 1, 2024 and that the mortgage remained in default. Notably, Mian admitted that he had stopped making payments, asserting only that he did so because of his disagreement with the interest rate. The judge further noted an unsigned and undated letter that Mian relied upon. Addressed to the plaintiff’s counsel, it requested a “Mortgage Arrear Statement” and referred to “all arrears on my mortgage.” Rather than supporting any suggested impropriety in the renewal, the court treated that language as a clear admission that the mortgage was in default and that arrears existed which he needed to “manage” and “address.” On the basis of the loan documents, renewal form, admissions regarding non-payment, and the arrears calculation, the court held that the bank had clearly met its initial burden and established a strong prima facie case for judgment in the amount claimed.

The defendants’ defences and their evidentiary shortcomings

Once the bank had discharged its onus, the burden shifted to the defendants to show a genuine issue requiring a trial. Mian advanced several defences in his pleading and affidavit: that the original mortgage terms were not explained to him and he did not receive the standard mortgage terms; that he did not sign the renewal, or alternatively that any renewal was on the old 3.04% rate; that he was the victim of fraudulent misrepresentation; that the circumstances were so egregious that enforcement would be unconscionable; and that the mortgaged property was not a matrimonial home. The judge examined each in turn and found them wanting. On the allegation that the original mortgage terms were not explained, the court emphasized that Mian had been represented by a lawyer, Teresa Maria Ander-Smith, when he entered into the original mortgage. He did not produce her file, any correspondence from her, or any affidavit from her to support the claim that the transaction was not properly explained. Nor did he commence third-party proceedings against her for negligence or breach of contract, which would have been the natural step if his complaint were that his own solicitor failed to advise him about the mortgage terms. Any implied argument of non est factum—that he did not understand what he was signing—also failed. The Supreme Court of Canada has held that non est factum requires proof of a misrepresentation that causes a person to sign a document while mistaken as to its nature or character, combined with an absence of carelessness in signing. Mian did not identify any specific misrepresentation, who made it, or how it caused him to sign, and he offered nothing to show that he exercised reasonable care, particularly in light of the fact that he had independent counsel. The renewal was separately addressed. Mian tried to deny having signed the renewal, arguing in part by reference to an incorrect date (September 11, 2023) mentioned at one point in the plaintiff’s materials. The court noted that the bank’s evidence was that the renewal was electronically executed on September 6, 2023, and the renewal form showed his electronic initials and signature on that date. The judge observed that Mian’s denial was framed around a date after the actual signing date, effectively amounting to a statement that he had not signed the renewal after he in fact had already done so. This made the denial “hardly a meaningful” one. His alternative assertion—that if he did sign it, it was at the lower 3.04% rate—was entirely unsubstantiated by any document or corroborating evidence and directly contradicted by the written renewal agreement specifying the 6.3% rate. The fraud allegation was treated particularly seriously. Fraud and fraudulent misrepresentation must be pleaded with particulars and proven with clear, cogent evidence. Here, Mian did not specify who allegedly misled him, what exactly was said or done, or how he relied on misstatements to his detriment. The judge referenced appellate authority stressing that “he who alleges must prove,” and found that Mian had not met that burden. The unconscionability argument also failed. The concept typically involves conduct so harsh, one-sided, or abusive that it shocks the conscience of the court or offends basic notions of justice. Mian offered no factual foundation demonstrating predatory conduct, pressure, or exploitation by the bank or anyone else in connection with either the original mortgage or the renewal. His objections were limited to dissatisfaction with the higher interest rate, which, without more, does not make an agreement unconscionable. Finally, the question of whether the property was or was not a matrimonial home was found to be irrelevant to the validity of the mortgage security and its enforcement in these circumstances. If the property were not a matrimonial home, it would simply mean that Yasin’s involvement in the litigation might not have been necessary. In any event, Yasin had signed as a consenting spouse. The status of the property did not undermine the enforceability of the mortgage or its renewal terms.

Use of enhanced summary judgment powers and conclusion on liability

Having reviewed the parties’ materials, Kurz J. found that there was no genuine issue requiring a trial. The bank’s documentary and affidavit evidence, together with Mian’s admissions, established the existence and renewal of the mortgage, the default in payments, and the outstanding balance. In contrast, the defendants’ defences were described as vague, unparticularized, and unsupported by independent evidence. The court did not need to resort heavily to weighing conflicting evidence or assessing complicated credibility issues; there was simply no coherent evidentiary foundation for the serious allegations advanced by Mian. The judge held that the summary judgment process was a fair and proportionate means of resolving the dispute and that it would be inappropriate to require a full trial in the face of such weak defences. Accordingly, summary judgment was granted in favour of Equitable Bank.

Monetary judgment, costs, and overall outcome

On the basis of the calculation contained in the motion record, the court found that Mian owed Equitable Bank $946,408.35 as of the hearing date, and ordered judgment in that amount. The mortgage provided for full indemnity costs, but the court still had to ensure that any award was fair and proportionate under Rule 57.01(1). In assessing costs, Kurz J. considered the defendants’ repeated non-attendance, the prior adjournments, and the “spurious” nature of several of Mian’s defences, including unfounded allegations of fraud which can justify enhanced costs. Plaintiff’s counsel had filed a bill of costs that did not even include the time for two earlier attendances on adjournments obtained at the defendants’ behest. The judge also took into account that Chang J. had already ordered costs of $5,000 in favour of the plaintiff on December 16, 2025, payable by January 30, 2026. Kurz J. concluded that an additional $10,000 in costs for the present motion was fair, reasonable, and proportionate. Those $10,000 in costs were ordered payable by Mian alone, recognizing that Yasin’s involvement was limited to her status as spouse and to issues of possession; the earlier $5,000 costs order by Chang J. remained in place and was expressly said to be in addition to the new award. Taken together, the court’s disposition resulted in Equitable Bank, as the successful party, obtaining judgment for $946,408.35 on the mortgage debt plus a total of $15,000 in costs across the two related orders, for an overall monetary outcome in the bank’s favour of $961,408.35.