Court File and Parties

CITATION: Jundi v. Ouaida, 2020 ONSC 5842

COURT FILE NO.: CV-08-357827

DATE: 20200928

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Jundi v. Ouaida

COUNSEL: Mr Arndt, for Mr Jundi et al.

Mr Baxi, for Mr Ouaida

Jonathan Sydor, for the Sheriff

BEFORE: D.L. Corbett J.

DATE: September 28, 2020

TELECONFERENCE ENDORSEMENT

D.L. Corbett j.:

[1] Mr Jundi seeks an order respecting sale of the Niagara Street property by the Sheriff.

[2] Mr Ouaida appears by counsel to request an adjournment of the motion. He raises two grounds. First, he says that the property was held in trust for his mother and in 2017 it was transferred back into his mother’s name in accordance with the trust. He says that his mother has not been given notice of the motion for the sale and so the motion must be adjourned to give her notice.

[3] Mr Ouaida’s mother has been dead since 2003. Mr Ouaida says that he is neither the legal nor the beneficial owner of the property from which I infer that he is neither the executor nor a beneficiary of his mother’s estate. He does not advise who these people are in his affidavit.

[4] No basis is provided to establish any standing for Mr Ouaida to request an adjournment on behalf of his mother’s estate. Further, this court ordered sale of the property and application of the sale proceeds to the judgment debt back in 2017. That order continues in force. In making that order I expressly held that the purported transfer from the numbered company to Mr Ouaida’s mother was a sham. In the three years since that order was made it has not been appealed. The issue raised by Mr Ouaida today was decided against him conclusively back in 2017.

[5] Finally, on the face of the documents now provided to the court by Mr Ouaida respecting the purported transfer of the property to his mother, I note that the documents are inconsistent with Mr Ouaida’s affidavit and he does not address this inconsistency in his evidence. In his affidavit he says that the true beneficial owner of the property was his mother, and that she transferred the property to the numbered company, as bare trustee, to hold it for her, for nominal consideration, back in 2002. The deed of transfer from 2002 does not say this. It describes Mr Ouaida’s mother as the bare trustee and the numbered company as the beneficial owner.

[6] In his affidavit Mr Ouaida says the transfer back to his mother in 2017 was a transfer from a bare trustee to the beneficial owner. That is not what the deed of transfer says. It shows the numbered company as owner of the property and records the transfer as a “gift” to his mother.

[7] These points are not necessary for the court’s decision today, which is to enforce an order made previously, three years ago. But they show that Mr Ouaida continues in his pattern of conduct described in detail in the trial judgment.

[8] The Sheriff’s sale shall proceed and this court orders that upon closing of any sale resulting from that process the court shall provide a vesting order in favour of the purchaser to remove the sham transfer to Mr Ouaida’s dead mother.

[9] Mr Ouaida argues that he and his son are resident in the property and need more time to move given the COVID-19 situation. There is evidence that Mr Ouaida also lives in a condominium owned by his wife in Mississauga. I am prepared to accept that Mr Ouaida’s son does live at the property, and counsel for Mr Jundi confirms that the property is occupied and does look to be well maintained. Counsel for Mr Jundi is., however, concerned about whether the property is properly insured. Counsel for Mr Ouaida advises that his understanding is that it is.

[10] There is no basis for Mr Jundi to show “compassion” in current circumstances, given the way in which Mr Ouaida has acted towards him, and continues to act by raising unmeritorious issues at the last minute to further delay judgment enforcement steps. However, there is also no point in making a draconian order just to be vindictive. If the Sheriff’s sale proceeds as expected, bids will be opened on November 12, 2020. Prospective purchasers will not be permitted to view the interior of the premises in any event, and so continued occupation of the house should not impede the sale. I see no reason why the current occupants should not be given until shortly before the opening of bids to vacate the premises, which will give them several weeks to get their affairs in order and relocate. This gives them five weeks more than the current Sheriff’s notice, and I see no prejudice to the Sheriff or Mr Jundi if this is permitted.

[11] Taking all of this into account:

(a) Order to go for the sale by the Sheriff as requested in the draft order, subject only to the balance of the terms of this order;

(b) Order to go that this court will grant a vesting order to a purchaser of the property acquiring it as a result of the Sheriff’s sale;

(c) Order to go that the occupants of the property provide proof of insurance to counsel for Mr Jundi and counsel for the Sheriff by 12 noon, October 2, 2020;

(d) Order to go that all interested parties attend a case management teleconference before me on October 5, 2020 to address any issues respecting insurance and, if adequate proof of insurance has not been provided, to accelerate the date on which the occupants must leave the property. If proof of insurance satisfactory to all parties has been provided by October 2, 2020, 12 noon, then counsel may cancel the teleconference call scheduled for October 5, 2020 by advising this court’s assistant by email;

(e) Order to go that, if adequate proof of insurance is provided by October 2, 2020, occupants of the property will be permitted to remain in the property until November 6, 2020. The Sheriff is authorized and directed to remove all occupants of the property from and after November 7, 2020 to enable transfer of vacant possession of the property to its new owners upon closing of the Sheriff’s sale;

(f) Order to go that there be a teleconference before this court on November 17, 2020, 9:30 am, to approve the proposed Sheriff’s sale of the property or to give such other directions respecting sale of the property as are then advisable.

(g) Enforcement costs to be addressed at November 17, 2020 or as I may then direct.

[12] This order is effective from the time it was pronounced orally during the teleconference on September 28, 2020. An unsigned version of these reasons shall be provided to the parties forthwith by email and a signed version shall be provided to them in due course.

D.L. Corbett J.

Date: September 28, 2020