CITATION: 2160324 Ontario Ltd. v. Meteric Invstments Limited, 2011 ONSC 5880
DIVISIONAL COURT FILE NO.: 372/11
DATE: 20111021
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
2160324 ONTARIO LTD.
Plaintiff/Moving Party
– and –
METERIC INVESTMENTS LIMITED, 6637469 CANADA INC., SATHY AGOWRI NAGESWARAN, RANJITHKUMAR SELVARATNAM, 7509545 CANADA INC., INDRANEE KURKKKAL, RAAJMOHAN KANTHASAMY and JIRUSIY RAAJMOHAN
Defendants/Responding Parties
Paul Hancock for the Plaintiff/Moving Party
David Martin for the defendants 7509545 Canada Inc. and Indranee Kurkkkal
HEARD: September 16, 2011
DAMBROT J.:
[1] The moving party brings this motion for leave to appeal to the Divisional Court from the decision of a motions judge dated July 22, 2011, dismissing its ex parte motion for the Issuance of a Certificate of Pending Litigation.
[2] The moving party is the plaintiff in an action for recovery of an investment and equity in a property on Eglinton Avenue in Toronto. It alleges that the defendants conspired to fraudulently transfer the property in question. The applicant asserts a 50% interest in the Eglinton property through its 50% ownership of 6637469 Canada Inc., by virtue of a constructive trust on the funds provided to the defendants by the applicant, and by virtue of its assertion that the property was improperly conveyed.
[3] The motions judge dismissed the motion in a brief hand-written endorsement. He held that:
The sale here was by a mortgagee of an apparently long overdue or troubled mortgage. It may have been an improvident sale but it does not appear to have been a fraudulent conveyance by a debtor seeking to put assets out of the reach of creditors.
Further, with respect to this sale, the plaintiff has not demonstrated that it had an interest in land, a requirement for a certificate of pending litigation.
[4] The moving party says that existing decisions conflict with this one in respect of both of these conclusions, and that there is good reason to doubt the correctness of both conclusions.
[5] With respect to the first conclusion, amongst other complaints, the moving party argues that the decision of the motions judge is in conflict with Mansou Construction Ltd. v. 1145852 Ontario Ltd. (1998), 82 A.C.W.S. (3d) 475 (Ont. Ct. (Gen. Div.)), where Spence J. held that a fraudulent conveyance is one that is designed to "defeat creditors and others", and the fact that the plaintiff is not a creditor of the mortgagee is not an absolute bar to a claim that the conveyance is fraudulent, so long as the plaintiff's claim is that the power of sale was exercised to defeat its registered interest in the property.
[6] With respect to the second conclusion, the moving party says that the decision of the motions judge is in conflict with Robertson v. Fieldstone Homes Ltd. (2009), 89 R.P.R. (4th) 150 (Ont. S.C.J. Master), Chilian v. Augdome Corp. (1991), 1991 7335 (ON CA), 2 O.R. (3d) 696 (C.A.) and Moehring v. Ivankovic (1981), 20 C.P.C. 285 (Ont. S.C.), all of which stand for the proposition that the entitlement to a certificate of pending litigation does not necessarily require that the plaintiff demonstrate an interest in land, but only that an interest in the land be in question in the proceeding, usually in the form of a claim of some kind which, if substantiated, would adversely affect the defendant's interest in the land.
[7] The respondent replies that even if the motions judge made the errors alleged, the motion for the Issuance of a Certificate of Pending Litigation properly failed for a variety of reasons. I need not canvas these reasons, because I am of the view that the proposed appeal does not involve matters of such importance that leave to appeal should be granted, and similarly, that it is not desirable that leave to appeal be granted.
[8] I reach these conclusions bearing in mind several considerations. First, the decision was made on an ex parte motion, and as a result on a limited record and without the benefit of hearing from the opposing party. Second, the decision takes the form of a short handwritten endorsement on the back of the motion record. Third, the decision is conclusory only, and includes no developed reasoning. And fourth, the contrary cases are uncontroversial, uniform, reasoned and, in one instance, binding. As a result, even if the judgment is wrong, it can do little mischief. It has no precedential value. The granting of leave would be in the interest of the moving party, but would serve no public interest.
The motion is dismissed. The parties may address the issue of costs in brief written submission of no longer than three pages. The responding party's submissions will be served and filed within 15 days. The moving party's submissions will be served and filed within 10 days after the responding party's submissions are received.
M. DAMBROT J.
RELEASED: October 7, 2011
CITATION: 2160324 Ontario Ltd. v. Meteric Invstments Limited, 2011 ONSC 5880
DIVISIONAL COURT FILE NO.: 372/11
DATE: 20111007
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
2160324 ONTARIO LTD.
Plaintiff/Moving Party
– and –
METERIC INVESTMENTS LIMITED, 6637469 CANADA INC., SATHY AGOWRI NAGESWARAN, RANJITHKUMAR SELVARATNAM, 7509545 CANADA INC., INDRANEE KURKKKAL, RAAJMOHAN KANTHASAMY and JIRUSIY RAAJMOHAN
Defendants/Responding Parties
REASONS FOR JUDGMENT
DAMBROT J.
RELEASED: October 7, 2011