CITATION: Kaphalakos v. Dayal, 2016 ONSC 3559

DIVISIONAL COURT FILE NO.: 006/16

DATE: 20160616

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MARROCCO A.C.J.S.C., PATTILLO & BROAD JJ.

BETWEEN:

PETER KAPHALAKOS

Respondent in Appeal/Applicant

– and –

NOREEN DAYAL

Appellant in Appeal/ Respondent

Murray E. Lightman, for the Respondent

Valois P. Ambrosino, for the Appellant

HEARD: April 11, 2016

MARROCCO A.C.J.S.C.

1The respondent successfully moved for summary judgment granting its application for an order for the immediate partition and sale of a jointly-owned property known municipally as 35 Wareside Drive in the City of Toronto.

2The appellant appeals that order to this court, pursuant to s. 7 of the Partition Act, R.S.O. 1990, c. P.4.

3The appellant asks this court to set aside that order and order that the motion for summary judgment for partition and sale be adjourned until the following events have occurred:

• The respondent submits to questioning by the appellant and;

• The trial of the respondent’s application for partition and sale is concluded.

The Problem

The Problem

4Is it possible to meaningfully review the motion judge’s finding that the appellant failed to prove the hardship required to deny a co-owner’s request for partition and sale?

The factual context

The factual context

5The appellant and the respondent met in October 2011. At that time the appellant was 75 years of age and the respondent was 85 years of age. The appellant was living in her own home and had done so for the past forty years; the respondent was living in a retirement home.

6The parties began living together in March 2013 in the appellant’s home. At the respondent’s urging, the appellant sold her home. In August 2013 the appellant and the respondent jointly purchased 35 Wareside Drive, the property that is the subject matter of these proceedings. Each one of them contributed half of the purchase price.

7On the night of July 22, 2014, the appellant woke from a sound sleep to find herself covered in blood. The appellant had been attacked with a hammer and critically injured.

8The appellant was taken to Sunnybrook Hospital for emergency surgery.

The appelant’s injuries resulting from the hammer attack

The appellant's injuries resulting from the hammer attack

9The frontal lobe of the appellant’s head had been crushed. Medical records from Sunnybrook reveal that the appellant suffered traumatic brain injury, scalp lacerations, a severe depressed skull fracture as well as epidural and subdural swelling. In addition, one of the fingers on her left hand was fractured.

10The appellant was operated on that day. After her surgery she was transferred to intensive care and later to the Toronto Rehab Hospital Neurocognitive Unit.

11An August 16, 2014 Report from the Toronto Rehab Hospital Neurocognitive Unit describes the appellant as cognitively impaired. The Report indicates that:

• The appellant was supplied with a walker;

• The appellant required a speech therapy assessment;

• Outpatient rehabilitation and plastic surgery follow up will be necessary;

• The Ministry of Transportation was advised of her condition; and

• Her length of stay was projected at two to four weeks.

The respondent is charged

The respondent is charged

12The respondent was charged with attempted murder, aggravated assault and assault with a weapon in connection with the hammer attack.

13The respondent’s criminal proceedings are ongoing

The civil action

The civil action

14The appellant has commenced a civil action against the respondent claiming damages of $1 million.

The proceedings below

The proceedings below

15The respondent successfully moved for summary judgment granting an order for partition and sale on November 27, 2014.

16The motion judge relied on Afolabi v. Fala, 2014 ONSC 1713, for the principle that a joint tenant has a prima facie right to an order for the partition or sale of lands held with another joint tenant.

17The motion judge ruled that:

• the court was required to compel partition and sale unless the appellant demonstrated such an order should not be made;

• relying on Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (Ont. C.A.), the party opposing the sale must show malicious, vexatious or oppressive conduct to avoid the order;

• the malicious, vexatious or oppressive conduct must relate to the bringing of the application and not the general conduct of the person bringing the motion. Specifically, Her Honour relied on the decision of the Superior Court in Akman v. Burshtein, which at para. 38 stated: “Any allegation of malicious, vexatious, or oppressive conduct should relate to the partition and sale issue itself. Specifically, it is necessary to look at the reasonableness of the positions taken by the parties as it relates to the application for partition and sale.” See also Osborne v. Myette, at para. 12.

18I agree with these principles as set out by the motion judge.

19The appellant took the position before the motion judge that the allegations with respect to the attack created a triable issue concerning the malicious conduct of the applicant. Her Honour rejected this argument because the triable issue did not relate to the conduct of the applicant in bringing the application for partition and sale.

20I agree with this conclusion.

21Her Honour found that the respondent was not trying to judgment-proof himself against the appellant’s civil claim for damages resulting from the alleged attack.

22This conclusion was available to Her Honour on the evidence and is entitled to deference on this appeal.

23Her Honour rejected the appellant’s argument that the appellant’s claim for a vesting order in response to the summary judgment motion created a triable issue because Her Honour concluded, relying upon the authority of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, that it was more expeditious to determine the merits of the vesting order claim on the summary judgment motion.

24This conclusion was available to Her Honour. See also Keyes v. Keyes, 2015 ONSC 1660, at paras. 38 & 39.

25Her Honour concluded that a vesting order was not an appropriate remedy in the factual context of this case. This determination was reasonably open to Her Honour on the evidence and is therefore entitled to deference: see Lynch v. Segal (2006), 82 O.R. (3d) 641 (C.A.), at paras. 27-29.

26Because the respondent is a co-owner of the property, the respondent’s motion for partition and sale cannot be described as vexatious.

The oppression inquiry

The oppression inquiry

27The only remaining question for Her Honour was whether the respondent’s motion for an order for partition and sale was oppressive. The motion judge dealt with this issue on p. 7 of her judgment in the following way: “I do not find, on the basis of the evidentiary record before me, that the respondent has met her burden of proving that the necessary hardship as required by the jurisprudence which was referred to by the parties is present for the court to exercise its discretion to refuse the order for the sale.”

28After considering the evidentiary record that was before the motion judge, I must respectfully disagree with Her Honour’s conclusion.

29The Court of Appeal for Ontario stated in Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 75 O.R. (3d) (C.A.), at para. 2, “In our view"oppression" properly includes hardship, and a judge can refuse partition and sale because hardship to the co-tenant resisting the application would be of such a nature as to amount to oppression”.

30The “oppression inquiry” was described by Emery J. in Morris v. Donegan, 2015 ONSC 3360, 11 E.T.R. (4th) 88, at para. 138, “I am of the view that this factor requires the court consider any evidence on the effect of the sale ….to determine if the combined cause-and-effect of the sale amounts to oppression.”

31The evidentiary record contained the appellant’s affidavit of September 25, 2015. In this affidavit the appellant deposed that she continued to experience loss of balance, nausea, amnesia, partial paralysis of the left side of her face, decreased range of motion, various cognitive issues, affected speech and that as a result at the time of the motion she had no place else to live. She deposed to feeling safe in her home due to the new locks and security system she had installed after the attack and to a close relationship with her neighbour which gives her peace of mind.

32If the motion judge accepted the affidavit and concluded that the hardship described in it was not capable of supporting a conclusion that the bringing of the motion for partition and sale was oppressive, I must respectfully disagree.

33Bringing the motion results in the sale of the property and the sale of the property deprives the appellant of a place to live at a time when, if you accept her affidavit, she is physically and mentally impaired and has no place else to live. Such a result is capable of supporting a finding that the bringing of the motion is oppressive: see for example Klakow v. Klakow (1972), 7 R.F.L. 349 (Ont. S.C.).

34Accordingly, if the motion judge accepted the appellant’s affidavit, I can see no basis for the motion judge’s conclusion that the appellant would not suffer the necessary level of hardship, if the order was granted.

35If the motion judge rejected the affidavit, then there was no evidence that the motion for partition and sale was oppressive and the order could issue.

36There was some controversy surrounding the appellant’s affidavit. Specifically, the appellant had declined to appear for cross-examination on her affidavit, claiming poor health and had offered to reschedule the cross-examination; the respondent refused and brought on the motion which is the subject matter of this appeal. It is possible that the motion judge could have decided that the appellant’s health did not justify her refusal to attend for cross-examination. It is possible that the motion judge could then have refused to rely upon the affidavit.

37However, the motion judge did not comment on the appellant’s affidavit. In addition, Her Honour did not elaborate on Her conclusion that oppression was not established.

Conclusion

Conclusion

38Silence on the evidentiary significance of the affidavit is an error of law because it precludes meaningful appellate review of the reasonableness of the motion judge’s assessment that the evidentiary record failed to prove “the necessary hardship as required by the jurisprudence”: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 28.

39Accordingly, I would respectfully allow this appeal.

40The Divisional Court hearing an appeal has the power to make any order or decision that it considers just in the circumstances: see s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Given the serious injuries which the appellant suffered in the July 22, 2014 hammer attack and given the uncertainty about the appellant’s September 25, 2015 affidavit, this matter should be heard again either by the motion judge or any other judge of the Superior Court of Justice. Both parties are free to file supplementary evidence. In addition, the appellant is ordered to file up-to-date medical evidence concerning continuing physical and mental difficulties, if any, resulting from the hammer attack.

Costs

Costs

The parties agreed upon costs in the amount of $15,000 all in which seems reasonable given the issues argued on this appeal. Accordingly, the respondent will pay the appellant $15,000 on the earliest of the following: the sale of the property that is the subject of these proceedings, the conclusion of the appellant’s civil action against the respondent or the conclusion of these proceedings