Court File and Parties
COURT FILE NO.: CV-19-631672 DATE: 20200403 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: 2676547 Ontario Inc., Plaintiff/Appellant – and – Elle Mortgage Corporation et al., Defendants/Respondents
BEFORE: F.L. Myers J.
COUNSEL: J. Lo Faso, for the Plaintiff/Appellant
READ: April 3, 2020
Endorsement
[1] The plaintiff appeals from the decision of Master Josefo dated March 24, 2020 discharging the plaintiff’s certificate of pending litigation.
[2] The plaintiff sues the defendant Walman and certain of his corporations for breach of an agreement of purchase and sale concerning a piece of land. The plaintiff says that he had a binding agreement with the Walman defendants and they breached the agreement by selling the land for more money to the defendant Tavares and his corporation.
[3] In this action, the plaintiff seeks specific performance. He claims that Tavares took the land with notice of his agreement of purchase and sale and is not a bona fide purchaser for value without notice.
[4] The plaintiff obtained a CPL ex parte. In setting aside the CPL, the Master found that the plaintiff had not made full disclosure on the initial ex parte hearing. For example, it did not mention to the first Master that it is a shell corporation. Master Josefo also found that the land was not singular or unique despite the fact that both the plaintiff and Mr. Tavares argued that it is unique to each of them. The Master also noted that the plaintiff delayed in asserting his claim so that Tavares has been in possession and commenced his own construction process in the interim. He also found that elements of the plaintiff’s evidence lacked credibility. Based on these findings, the Master found that the balance of equities weighed against continuing the CPL. The plaintiff can assert its claim for damages, but its claim for specific performance was too weak to protect with a CPL.
[5] The plaintiff sought an urgent stay pending appeal from the Master. With some input from the Master, the parties agreed on consent terms as follows:
The Plaintiff will pursuant to Rule 62.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 serve its Notice of Appeal of my March 24, 2020 decision and Order within seven (7) days of March 24, 2020.
The Plaintiff will seek the first available hearing date for its appeal, dependent upon court resources and any decision of the “triage judge”, and in consultation with Mr. Worsfold; and will (within the confines of the existing unique circumstances referenced above) take all steps to proceed with its appeal with alacrity, including all steps required by Rule 62 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
The defendants Tavasys Telecom Inc., and Danny Tavares will not sell nor transfer the property pending disposition of the plaintiff’s appeal or pursuant to further Order of the court. Any such Order sought in that regard shall be made on no less than ten (10) days notice to all potentially interested parties.
[6] The issue before me is whether to schedule the appeal for hearing under the Notice to the Profession dated March 15, 2020. In the Notice to the Profession, in light of the global COVID-19 pandemic, the Chief Justice gave notice to the public of the need to curtail normal court services and of the terms under which the court would endeavour to provide urgent services going forward.
[7] For civil lawsuits, the Notice to the Profession provides for the hearing of:
The following CIVIL and COMMERCIAL LIST (Toronto) matters: a. urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing. b. Outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding.
Any other matter that the Court deems necessary and appropriate to hear on an urgent basis. The Bar and the public are advised that these matters will be strictly limited.
[8] The Notice to the Profession asked everyone – litigants and lawyers alike – to recognize the exceptional times and to try to cooperate to avoid the need for court proceedings where possible. It provides:
During this temporary suspension of regular operations, the Court calls upon the cooperation of counsel and parties to engage in every effort to resolve matters.
[9] The parties in this appeal heeded that call. Rather than leaving the plaintiff’s claim to title unprotected pending the appeal, the Tavares defendants agreed that they would not sell or transfer the property without an order of the court that they can only seek after giving at least ten days’ notice to the plaintiff and the Walman defendants. (I note that I read “transfer” to include encumbering the existing equity.)
[10] The only person who may face urgency now by a delay in the hearing of the appeal is Tavares. If the land is truly unique to him for a “dream home” as discussed by the Master, this should not become an issue. But if it does, the court will still be here.
[11] I am not weighing the merits of the appeal in this decision. Rather, it seems to me that as a result of the parties’ agreement on the stay motion, which was expressly subject to the vagaries of this decision, the appeal is not time sensitive. Neither do I see any basis for this appeal to fall within the strictly limited number of cases which it may otherwise be “necessary and appropriate” to hear at this exceptional time.
[12] The appeal will be scheduled to be spoken to on June 1, 2020 barring an order to the contrary prior to that time. In the interim, all parties should perfect their materials and be ready to go as soon as the court re-opens and the appeal can be rescheduled.
F.L. Myers J. Date: April 3, 2020