ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CV-14-5229-00
Date: 2014-11-21
B E T W E E N:
MIRKO DIVJANOVIC
Doug Laframboise, for the Plaintiff
Plaintiff
- and -
ELIZABET DIVJANOVIC and ZDRAVKO DIVJANOVIC
Did not appear, for the Defendants
Defendants
Heard: November 21, 2014
at Brampton, Ontario
Price J.
Reasons For Order
[1] Mirko Divjanovic, the plaintiff, (Mr. Divjanovic Sr.) moves without notice to the defendants, being his son, Zdravko Divjanovic, and his estranged daughter-in-law, Elizabet Divjanovic, for a Certificate of Pending Litigation (“CPL”) in relation to the defendants’ property at 5436 Wilderness Trail, Mississauga (“the property”).
[2] Mr. Divjanovic Sr. asserts a resulting trust to the property based on the fact that he loaned $130,000 to the defendants in 1998 to facilitate their purchase of the property, as his son was 28 and his daughter-in-law was 22 and they had a hard time, he says, getting conventional mortgage financing.
[3] Mr. Divjanovic Sr. asserts urgency in the motion based on the fact that he has just recently learned that his son and daughter-in-law separated this September and that after putting additional lines of credit on the property, they have put the property up for sale and the transaction is closing November 27, 2014. He states “As the couple is separating I am applying for the Certificate of Pending Litigation as I need to protect my interest as once this is sold, and the legal battle of the divorce goes on I will never get my money back”.
[4] Mr. Divjanovic Sr.’s motion record does not include any documentation of his payment to the defendants or any Promissory Note or other evidence of their indebtedness to him. The facts he asserts, if accepted, may support a claim for resulting trust. See: Nishi v. Recall Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at paras. 1 and 2 , and Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 40 and 41.
[5] The court has noted that it must proceed with great caution before granting what amounts to an injunction on an ex parte motion. See: D.M. Brown J. in Re Sprott Resource Lending Corp., [2013] ONSC 4350 [2013] O.J. No. 2661, at para. 9, and Corbett J. in Robert Half Canada Inc. v. Jeewan et al, 2004 1532 (ON SC), [2004] O.J. No. 2903, 71 O.R. (3d) 650, at paras. 30 to 40. Corbett J. stated at para. 32:
"Extraordinary urgency" that justifies moving for an injunction without notice arises where "the delay necessary to give notice might entail serious and irreparable injury to the plaintiff": Sharpe, Injunctions and Specific Performance, (2nd ed.) para. 2.30.
[6] Section 103(1) of the Courts of Justice Act gives the court a broad discretion as to whether to grant a CPL just as section 103(b) confers such discretion as to whether to discharge such a Certificate. See: G.P.I. Greenfield Pioneer Inc. et al v. Moore, 2002 6832 (ON CA), [2002] O.J. No. 282, 58 O.R. (3d) 87, (ONCA), at paras. 15 to 17.
[7] In the present case, balancing the potential prejudice to the defendants and purchaser from issuing a CPL in relation to a property that is scheduled to be sold next Thursday (in 6 days) against the potential prejudice to the plaintiff from not issuing such a Certificate, I find that the evidence does not support the issuance of a CPL at this time, without further evidence and/or notice to the defendants. A more modest remedy would be an order requiring the lawyer assisting the defendants on the sale to hold the net proceeds of sale in trust pending further Order of the court to be obtained on notice to the plaintiff. Even an order in that form should be based on further evidence and/or notice to the defendants, or evidence that the best efforts have been made to serve them.
[8] Based on the foregoing, it is ordered that:
The motion is adjourned to Tuesday, November 25, 2014 at 10:00 a.m.
The plaintiff shall forthwith serve the motion with this endorsement, on the defendants.
The motion shall be deemed to be amended to request, in the alternative, an order that the lawyer acting for the defendants on the sale hold the net proceeds after payment of property taxes, mortgage, secured lines of credit, legal fees on the sale and standard adjustments in trust pending further order of the court, obtained on notice to the plaintiff.
The motion may be filed Monday and shall not require confirmation.
Price J.
Released: November 21, 2014
COURT FILE NO.: CV-14-5229-00
DATE: 2014-11-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MIRKO DIVJANOVIC
Plaintiff
- and -
ELIZABET DIVJANOVIC and ZDRAVKO DIVJANOVIC
Defendants
REASONS FOR ORDER
Price J.
Released: November 21, 2014