Court File and Parties

COURT FILE NO.: 01-0703/18 DATE: 20190628 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF JOSEPH DOBIS

RE: MARK DOBIS, Applicant/Moving Party AND: ELIZABETH DOBIS, the Estate Trustee for JOSEPH VICTOR DOBIS, Deceased, Respondent/Moving Party

AND BETWEEN: ELIZABETH DOBIS, the Estate Trustee for JOSEPH VICTOR DOBIS, Deceased, Applicant AND: MARK DOBIS and VLASTA KAPRALIK, Respondents

BEFORE: Dietrich J.

COUNSEL: A. Chima, for the Applicant, Respondent Moving Party, Mark Dobis Christopher D. Salazar, for the Respondent/Responding Party, Elizabeth Dobis

HEARD: June 6, 2019

Endorsement

Overview

[1] The Applicant/Moving Party, Mark Dobis, brings this motion for an interim interlocutory injunction. He seeks to restrain his mother, the Respondent/Responding Party, Elizabeth Dobis, personally, and as Executrix and Trustee of the Estate of his late father Joseph Dobis (the “Estate”), from dealing with a property municipally known as 88 Overton Crescent in North York, Ontario (the “Property”). In particular, he seeks to enjoin her from: i) dissipating or otherwise distributing or interfering with or encumbering the Property; and/or ii) interfering with his present possession, control or management of the Property, including attempts to collect any rental income and exercising any rights as a landlord, including seeking relief pursuant to the Residential Tenancies Act, 2006, S.O. 2006, c. 17.

[2] Mr. Dobis also sought an interim interlocutory injunction with respect to all of the assets of his late father’s estate. However, during the hearing, he limited the injunctive relief sought to the Property and the rents only. Mr. Dobis asks that the injunction sought, if granted, remain in place until the final disposition of his pending application for dependant’s support from the Estate.

[3] Mr. Dobis also seeks an order granting leave to register a Certificate of Pending Litigation (“CPL”) against the Property.

[4] Mrs. Dobis opposes the motion on the basis Mr. Dobis is not entitled to injunctive relief because he is not a dependant of his late father, and that, even if he were, the injunctive relief he seeks is an extraordinary remedy and is not appropriate in this case. Mrs. Dobis further submits that Mr. Dobis is not entitled to the grant of a CPL because he does not have a reasonable claim to an interest in the Property.

[5] For the reasons that follow, I find that Mr. Dobis has not met the tests for the granting of an interim interlocutory injunction or for leave to register a CPL.

Factual Background

[6] The late Joseph Dobis died on November 6, 2015. He left a Last Will and Testament dated November 3, 1992 (the “Will”), in which he named his wife Elizabeth Dobis as the Executrix and Trustee. He left the entire residue of his estate to her if she survived him by 30 days. The alternative Executor and Trustee named in the Will is Mark Dobis. The Will provides that if Mrs. Dobis predeceases her husband or dies within 30 days of him, the residue of the Estate is to be divided among the children of the late Joseph Dobis alive on the death of the survivor of himself and his wife, in equal shares. However, the share of any deceased child would be divided among that deceased child’s issue then alive, if any, in equal shares per stirpes. The late Joseph Dobis was survived by his two children Mark Dobis and Richard Dobis.

[7] Mrs. Dobis survived her husband by more than 30 days. A Certificate of Appointment of Estate Trustee with a Will was issued to her by this court on August 4, 2018. Mr. Dobis does not challenge the validity of the Will.

[8] At the time of Joseph Dobis’ death, title to the Property was registered in the names of the late Joseph Dobis’ late parents Mary Dobis and Joseph Dobis. Ultimately, it devolved to his Estate. Mrs. Dobis, as Executrix and Trustee, arranged for a transfer of the Property to herself as the sole beneficiary of the Estate. The transfer to Mrs. Dobis was registered on February 23, 2019.

[9] Mr. Dobis alleges that his late father signed a typewritten document, dated April 24, 2015, entitled “Devise”, which deals with his late father Joseph Dobis’ interest in the Property.

[10] The Devise reads as follows in respect of title to the Property:

With regards to 88 Overton Crescent, Don Mills, M3B 2V2

There should be no need or requirement for purposes of continuity to make change in title which is and shall remain as, Mary and Joseph Dobis, a.k.a. “The Estate of Mary Dobis”;

If the requirement should arise to cause change of title from Mary and Joseph Dobis, then that person should be my wife personally Elizabeth Dobis as Trustee, for the benefit of both my sons Mark and Richard, and thereafter for the benefit of my grandchildren.

[11] It is common ground that the Devise is not a valid testamentary document. It does not comply with the formalities relating to the execution of a will as set out in the Succession Law Reform Act, R.S.O. 1990, c. S. 26.

Injunctive Relief

[12] The court may grant an interlocutory injunction where the court deems it just or convenient to do so: Rules of Civil Procedure, R.R.O. 1980, Reg. 194, r. 40.01.

[13] In RJR-MacDonald Inc. v. Canada, [1994] 1 S.C.R. 311 at para. 48, the Supreme Court of Canada established a three-part test, which requires the court to consider: i) whether the moving party has presented a serious question to be tried; ii) whether the moving party would suffer irreparable harm if the remedy is not granted; and iii) which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits.

[14] Mrs. Dobis submits that the effect of the relief sought is a freezing order, in which case, the moving party would need to show a prima facie case as opposed to a serious issue to be tried. Mr. Dobis submits that he is not seeking a freezing order or a Mareva injunction. He submits that the injunctive relief that he is seeking is that Mrs. Dobis permit the status quo to continue at the Property pending the hearing of Mr. Dobis’ application, and, therefore, he is only required to present a serious question to be tried. I accept Mr. Dobis’ submission that he is not seeking a freezing order or Mareva injunction.

i) Serious issue to be tried

[15] Mr. Dobis submits that the question of his entitlement to support from his late father’s estate is a serious issue to be tried.

[16] Mrs. Dobis submits that there is no serious issue to be tried because Mr. Dobis does not qualify as a “dependant” entitled to support for the purposes of the Succession Law Reform Act.

[17] At Part V of the Succession Law Reform Act, the definition of “dependant” includes a child of the deceased. However, a “dependant” child, for the purposes of support under the Act, must be one to whom the deceased was under a legal obligation to provide support, or to whom the deceased was providing support immediately before his or her death.

[18] Mr. Dobis asserts that the deceased was under a legal obligation to provide support to him notwithstanding that he is 56 years of age, married and, since March of this year, has been employed on a full-time basis. He further submits that his late father has a legal obligation to support him because he has been living at the Property for thirteen years and has been contributing to the Property by providing certain services such as managing tenancy arrangements, repairs, maintenance, decorating and rent collection.

[19] Mr. Dobis further asserts that his father was providing support to him immediately before his death by providing him with a rental unit in the Property for less than fair market value rent. Mr. Dobis asserts that his arrangement with his late father, whereby he provided services relating to the Property in exchange for a rent reduction, is tantamount to a life interest in the Property. Mr. Dobis submits that, by creating the Devise, his late father expressed his intention that Mr. Dobis should have a life interest in the Property.

[20] Mr. Dobis also submits that his late father had a moral and ethical obligation to support him. He asks the court to impose a constructive trust over the Property and the rents for his benefit.

[21] Mrs. Dobis disputes that the late Joseph Dobis was providing support to Mr. Dobis immediately before his death. She agrees that her late husband did allow Mr. Dobis to pay less than fair market value rent. However, she asserts that there was a contractual arrangement between them that permitted Mr. Dobis to pay discounted rent in exchange for services relating to the management and maintenance of the Property. This arrangement, in her view, was a business arrangement, which was not intended to and did not create a dependency relationship or an entitlement to a life interest in the Property.

[22] Mrs. Dobis also disputes that her late husband evinced any intention to create a life interest in the Property for his son Mark Dobis. She disputes the authenticity of the Devise and asserts that even if the Devise were valid and could be construed as evidence of an intention to create a life interest in the Property, intention does not factor in to the analysis of whether Mr. Dobis is a “dependant” within the meaning of the Succession Law Reform Act. Further, she submits that if the late Joseph Dobis intended to create a life interest in the Property in making the Devise, the interest created would be for the benefit of both his sons, and not just Mr. Dobis.

[23] On the evidence before the court, I am not persuaded that Mr. Dobis’ application for dependant’s relief raises a serious question to be tried. If I am correct in that finding, I do not need to apply the other two tests. If I am mistaken, the remaining two tests apply, which I will now address.

ii) Irreparable Harm

[24] Mr. Dobis asserts that he will suffer irreparable harm if the injunction he seeks is not granted. To succeed on this ground, he must show that a refusal to grant the relief could so adversely affect his interests that any harm suffered could not be remedied.

[25] By way of relief, in his application, Mr. Dobis seeks to maintain the status quo at the Property. In other words, he wishes to continue to live in the unit he shares with his spouse at a discounted rent and to be permitted to manage the Property, including negotiating the tenancies and collecting the rent. To achieve this objective, he asks the court to impose a constructive trust over the Property and the rents. However, this type of equitable relief is simply not available to satisfy a dependant’s support claim pursuant to the Succession Law Reform Act. The Act makes provision for dependants who succeed in their claims through awards of lump sum or periodic payments, transfers of property (absolutely or for a fixed term), or the possession or use of a property (for life or a fixed term). The Act does not make provision for the extension of contractual arrangements relating to employment or agency.

[26] It is conceivable that if an injunction is not granted, Mrs. Dobis, as legal owner of the Property, would take steps to cause Mr. Dobis and his spouse to vacate the Property. An eviction would likely be disruptive to them. However, their tenancy is protected by the Residential Tenancies Act with which Mrs. Dobis would be required to comply. Any harm caused to Mr. Dobis as a consequence of Mrs. Dobis’ actions relating to the Property could be adequately remedied through an award of damages. It is also conceivable that Mrs. Dobis would sell the Property, in which case, if Mr. Dobis is successful in his application, he would not receive an interest in the Property. This result could also be remedied through an award in damages. Should Mr. Dobis succeed on his application for dependant’s support, his award need not take, and it seems unlikely that it would take, the form of an interest in the Property.

iii) Balance of Convenience

[27] Mrs. Dobis submits that she will suffer the greater harm if the injunction is granted. She submits that she is the legal owner of the Property, but asserts that Mr. Dobis is holding the Property hostage such that she is not free to deal with the Property as an owner.

[28] Further, Mrs. Dobis asserts that Mr. Dobis has not provided her with an accounting of the rental income he has collected even though he was ordered to do so by Justice DiTomaso’s order dated March 6, 2018. Mrs. Dobis submits that she has reason to be concerned about Mr. Dobis’ failure to comply with the order and his failure to account. The evidence is that Mr. Dobis re-directed rental income that, during the late Joseph Dobis’ lifetime, was paid into a joint bank account held by Joseph Dobis and Mrs. Dobis. Following the late Joseph Dobis’ death, Mr. Dobis unilaterally arranged for some of the rental income to be paid to him directly.

[29] Mrs. Dobis is entitled to a proper accounting of the rental income, which she has sought from Mr. Dobis. The accounting he has provided is incomplete and unsupported by vouchers. Mrs. Dobis is also concerned that the rental income he collects could be at risk in the hands of Mr. Dobis, who testified that he has significant credit card debt and is currently insolvent.

[30] In light of the evidence of Mr. Dobis’ indebtedness and insolvency, Mrs. Dobis has reason to be concerned about whether she could recover any damages she might suffer in reliance on Mr. Dobis’ undertaking made in support of his motion for an injunction.

[31] Accordingly, Mrs. Dobis asserts that it is she who will suffer the greater harm if the injunction is granted and she is precluded from taking any action relating to the Property, including managing the tenancy arrangements and collecting the rent.

[32] Mr. Dobis argues that he will suffer the greater harm if the injunctive relief is not granted. He asserts that he could lose both his home (the unit in the Property in which he resides with his spouse) and his job as a superintendent at the Property.

[33] On balance, I find that Mrs. Dobis will suffer the greater harm if the injunction is granted. She is the legal owner of the Property but does not currently have possession, management or control of it. Mr. Dobis is collecting rental income, some of which he has diverted to himself, and he has not provided her with a proper accounting. Her concern that the rental income in his hands could be vulnerable to his creditors is reasonable. If the injunction is not granted, it is possible that Mr. Dobis and his spouse will be evicted. However, the Residential Tenancies Act affords them certain rights as tenants to protect their interests.

[34] If Mr. Dobis succeeds in his application for support pursuant to the Succession Law Reform Act, the provision for support, if any, could be provided in a lump sum or periodic payment as opposed to an interest in the Property. While Mr. Dobis pursues his application for support, Mrs. Dobis should be not be precluded from dealing with the Property she owns as she sees fit.

The Certificate of Pending Litigation

[35] Mr. Dobis asks that a CPL be registered on title to the Property until his application for dependant’s support has been finally disposed of.

[36] Mrs. Dobis asserts that a CPL is not appropriate in this case because Mr. Dobis has no legal or beneficial interest in the Property and there is no triable issue as to such interest. These are the prerequisites to obtaining an order granting leave to register a CPL against a property. See Perruzza v. Spetone, 2010 ONSC 841 at para. 20 (ii) and the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 103(6)(a)(ii). Mrs. Dobis asserts that the facts alleged by Mr. Dobis do not amount to a reasonable claim to an interest in the Property.

[37] I find that Mr. Dobis has not demonstrated a reasonable claim to an interest in the Property. Based on the record, he appears to be a tenant with a contractual arrangement with the former owner to provide certain services relating to the management and upkeep of the Property in exchange for reduced rent. He seeks a life interest in the Property but produced no compelling documentary evidence in support of that claim. At best, he has the hope of being awarded an interest in the Property if he is successful in his application for dependant’s support, but his success is far from certain. Even if he were successful in his application, there can be no assurance that the relief would take the form of an interest in the Property. I do not find that there is a triable issue with respect to Mr. Dobis’ claim to an interest in the Property. The contractual arrangement does not amount to an interest in the Property for the purposes of registering a CPL. The arrangement could be terminated, at any time, in accordance with its terms, by Mrs. Dobis as an Executrix and Trustee of the Estate.

Disposition

[38] Mr. Dobis’ motion for an interlocutory injunction and an order granting leave to register a Certificate of Pending Litigation against the Property is dismissed in its entirety.

Costs

[39] Elizabeth Dobis, having succeeded in defending against this motion, is entitled to her costs, payable by Mark Dobis. The parties are encouraged to agree on the matter of costs. If they are unable to do so, Mrs. Dobis (having already filed a bill of costs) shall serve and file her written submissions, not exceeding three pages, within 14 days. Mr. Dobis shall serve and file his written submissions 14 days thereafter.

Dietrich J. Date: June 28, 2019