SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-13-113509
DATE: 20130624

RE: Sam Acquaviva and Premier Homes Realty Ltd., and First Capital Corp., Plaintiffs

-and-

P.A.R.C.E.L. Inc., Bijan Pardis and P.A.C.I.F.I.C. Inc., Defendants

BEFORE: The Honourable Mr. Justice M.L. Edwards

COUNSEL: Domenic Saverino, for the Plaintiffs

Howard Crosner, for the Defendants

HEARD: June 20, 2013

ENDORSEMENT

[1] The plaintiffs seek to stay the order of Vallee J., dated May 30, 2013, until the plaintiffs’ motion seeking leave to appeal has been disposed of by this court. The order of Vallee J. discharged a certificate of pending litigation (“CPL”), which the plaintiffs had obtained on an ex parte basis. The CPL was discharged largely on the basis of a finding made by Vallee J. that the plaintiffs had not made full, fair, and frank disclosure to the court when it obtained the CPL. The lack of disclosure, in part, related to the alleged failure on the part of the plaintiffs to disclose earlier court proceedings.

[2] A review of the earlier court proceedings is informative with respect to the question of whether there is a serious issue to be decided by the court on the motion seeking leave to appeal, as well as with respect to the balance of convenience.

[3] The plaintiffs had commenced another action, bearing Newmarket court file number CV-12-108670-00 (“Action 1”), which was commented on July 26, 2012, against mostly the same defendants who are involved in the litigation presently before the court (“Action 2”), which was commenced on March 5, 2013. In Action 1, the plaintiffs obtained a judgment from Lauwers J. for approximately $411,000.00, plus interest, plus costs against P.A.R.C.E.L. Inc., P.A.C.I.F.I.C. Inc. and Bijan Pardis. The judgment of Lauwers J. was set aside on December 17, 2012 once it was determined that the plaintiffs had never noted the defendants into default. While the judgment was set aside, writs of execution that flowed from the earlier judgment of Lauwers J. had not been set aside. As such, on March 4, 2013, the defendants moved to remove six writs of seizure and sale which the plaintiffs had refused to lift after the judgment of Lauwers J. had been set aside. The motion came before McDermot J. on March 14, 2013, who ordered the removal of the six writs of seizure and sale.

[4] Action 2 was commenced on March 5, 2013, at which time the plaintiffs moved ex parte to obtain the CPL, which were the subject matter of the ultimate order that resulted from the judgment of Vallee J., dated May 30, 2013. The fact that the CPL had been obtained ex parte was not made known to McDermot J. when he made his order removing the six writs of seizure and sale on March 14, 2013.

[5] On March 18, 2013, the plaintiffs served a notice of motion, returnable on March 19, 2013, seeking an order staying the order of McDermot J., lifting the writs of execution. The matter came before McKelvey J. on March 19, 2013 at which time the parties entered into a consent order which, in part, provided:

This court orders that the defendants shall undertake not to transact any disposition, depletion, encumbrance or transfer real estate on or before the hearing of the plaintiffs’ motion for summary judgment, currently returnable on June 25, 2013 or before any agreed to or ordered adjournment other than respecting a property municipally known as 14000 and 14070 Yonge Street in Aurora.

[6] Again, it is important to note that when the matter came before McKelvey J. on March 19, 2013, the plaintiffs did not disclose to the court, nor to the defendants, that they had commenced this action and had registered the CPL, which effectively prevented the defendants from transacting business with the two properties, mentioned in the consent order of McKelvey J.

[7] The order of Vallee J., in addition to discharging the CPL, also consolidated Action 1 and Action 2.

[8] Counsel for the plaintiffs argues that there will be irreparable harm suffered by his clients if the CPL is vacated, as it is suggested that the property will be sold prior to the leave to appeal application, to be heard in October of this year. Counsel for the defendants, quite properly, refers to the order of McKelvey J. that was consented to by all parties that provided, essentially for the status quo, to remain in place until the hearing of the plaintiffs’ summary judgment motion, with the exception of two properties that are specifically provided for, those being 14000 and 14070 Yonge Street in Aurora.

[9] Whether the plaintiffs will be successful in obtaining leave to appeal is not the issue before this court. The question before this court is whether a stay should be granted. In granting a stay, this court must be mindful that the test the plaintiffs must satisfy is similar to the test for an interlocutory injunction (i.e., (i) that there is a serious issue to be tried; (ii) would compliance with the order under appeal cause irreparable harm; and (iii) what is the balance of convenience). In applying these tests, the balance of convenience demands that the status quo contemplated by the parties in the order of McKelvey J. be considered. The status quo now must also be looked at from the perspective of what Vallee J. ordered in terms of a consolidation of the actions. With these concerns in mind, I am ordering as follows:

(a) The order of Vallee J. shall be stayed, pending the determination of the plaintiffs’ leave to appeal motion, scheduled for October 2013;

(b) The only exception to this stay shall be as provided for in paragraph 4 of the order of McKelvey J. to the effect that the defendant shall be at liberty to deal with properties municipally known as 14000 and 14070 Yonge Street in Aurora; and

(c) The summary judgment motion of the plaintiffs scheduled for June 25, 2013 shall be adjourned, pending the disposition of the plaintiffs’ motion seeking leave to appeal the order of Vallee J.

[10] The effect of my order shall be to maintain the status quo between the parties such that neither party will be unduly prejudiced, pending the final disposition of the leave to appeal motion.

[11] The costs of today are reserved to the judge, ultimately disposing of the leave to appeal motion.

Justice M.L. Edwards

Released: June 24, 2013