Court File and Parties

COURT FILE NO.: CV-13-494002

DATE: 20140618

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LEON MASSA, Plaintiff

AND:

ALEX SUALIM, SANDRA SUALIM, SANDRA OLUWOLE-AINA, 2078749 ONTARIO LTD., BAUHAUS HOME HUILDERS LTD. and OZILI INC., Defendants

BEFORE: STEWART J.

COUNSEL:
Ruth Promislow, for the Plaintiff

C. Aiello, for the Defendant Sandra Sualim

N.C. Tibollo, for Defendants Alex Sualim, et al

HEARD: June 17, 2014

ENDORSEMENT

[1] On the motion and cross-motion before me, no party seeks to vary the $1.6 million cap imposed by Morgan J. on December 20, 2013. Rather, the Defendants seek to vary the terms of the injunction by presenting further and better evidence as to the value of the real estate which is subject to the injunction in order to demonstrate that it is worth well over the $1.6 million cap. Morgan J specifically left open this option in paragraph 42 of his December 20, 2013 endorsement.

[2] The Defendants have produced expert valuations of the five properties subject to the injunction. The Plaintiff does not take issue with those valuations, but expresses concern about the continued presence of, and possible problems that could be caused by, certain mortgages that remain on some of these properties.

[3] The Defendants have brought forth evidence that satisfies me that these mortgages either have been discharged or are capable of being discharged easily, as the debts which they secure have been repaid. Letters from the relevant lending institutions as well as the affidavit evidence of Sandra Sualim attest to that fact. The sole reason why they have not been discharged is that the registered notice of the injunction prevents this from being done.

[4] The evidence before me supports a conclusion that the assets covered by the injunction are worth more than the $1.6 million cap. In my view, the purposes of the Mareva injunction and the considerations which properly apply to the granting of such relief are served by varying the injunction order to remove from its application certain properties currently on the list appended to the order of Morgan J. of December 20, 2013 and marked as Schedule “A”. The remaining properties have a cumulative value that is slightly more than the $1.6 million cap. In doing so, however, I repeat with approval the comments of Morgan J. made at paragraphs 27, 28 and 43 of his endorsement.

[5] The Plaintiff asks that the injunction be varied so that it first applies to the assets of Alex Sualim and then, to the extent of any shortfall, to the assets of Sandra Sualim. The relief initially was sought as against all Defendants and was pursued against all, without discrimination. Claims are advanced that these assets were accumulated with the proceeds of fraud and a tracking order is sought. The Defendant Sandra Sualim is equally embraced by these and other allegations in the Statement of Claim. I see no basis upon which the blanket terms of the injunctive relief already obtained which applies to the assets of all Defendants should now be tailored in the manner the Plaintiff suggests should be done. The cross-motion is dismissed.

[6] Accordingly, I make the following order:

(a) The injunction is varied solely to permit the discharge of any existing mortgage on 129 Sixth Street, Etobicoke and, to the extent it has not already been done, the $650,000.00 Maple Trust mortgage on 1 Lake Promenade, Etobicoke;

(b) After the discharges referred to in (a) have been obtained and registered and proof thereof provided to counsel for the Plaintiff, the injunction shall be further varied to exempt from its effect the properties at 78 Fifth Street, Etobicoke and 106 Twenty-Third Street, Etobicoke;

(c) For any greater certainty that may be required, paragraph 1 of the Order of Morgan J. dated December 20, 2013 serves to restrain the Defendants from accessing any line of credit or funds otherwise remaining available pursuant to the collateral mortgage registered in favour of the Royal Bank of Canada against 1 Lake Promenade, Etobicoke and applies equally to any persons with notice of the injunction from doing so or assisting any person in doing so, in accordance with the terms of that provision and pending any further order of the Court.

[7] If the subject of costs cannot be agreed upon, written submissions may be delivered by the Defendants within 15 days of today’s date and by the Plaintiff with 10 days thereafter.

STEWART J.

Date: June 18, 2014