Boyko v. Trynoha, 2015 ONSC 1022
COURT FILE NO.: CV-15-0658-00
DATE: 2015 02 13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CATHERINE BOYKO also known as KAY BOYKO - and - ROMAN TRYNOHA, MARIA TRYNOHA and MYKHAYLO TRYNOHA
BEFORE: PRICE J.
COUNSEL: Elena Mamay, for the Plaintiffs
No one appearing for the Defendants
REASONS FOR DECISION
NATURE OF CLAIM
[1] The plaintiff, Catherine Boyko (“Ms. Boyko”), who is 97 years of age, brings a motion without notice to the defendants, for certificates of pending litigation against properties at 1086 Lovingston Crescent in Mississauga (“the Mississauga Property”) and 1806 Daytona, City of Windsor (“the Windsor Property”). The court heard the motion on February 12, 2014, and issued an order on that date. I indicated in my endorsement that written reasons would follow. These are the said reasons, which supersede and replace the reasons given in my endorsement on February 12.
[2] The Windsor property is held by the defendant, Roman Trynoha, (“the priest”) and his son, Mykhaylo Trynoha, and the Mississauga property is held by the priest’s wife, Maria Trynoha.
[3] The crux of Ms. Boyko’s position is that she was a parishioner of the priest since 1989. In 1999, she advanced the priest moneys as a “loan” for the purchase of the Mississauga Property. Additionally, she advanced moneys as a loan to help Mr. Trynoha with renovations to the house and to help pay the priest’s mortgage.
[4] In 2001, Ms. Boyko became ill and granted a continuing power of attorney for property to the priest. She alleges that without her knowledge, the priest used the power of attorney to de-register her Guaranteed Investment Contract (“GIC”) with the Royal Bank of Canada. At the time of deregistration, the amount of the GIC was $126,000. Ms. Boyko states that the priest used the proceeds of the GIC to purchase the Windsor Property.
MOVING PARTY’S POSITION
[5] Ms. Boyko asserts that the priest was in a fiduciary relationship with her and that the moneys she knowingly advanced to him were advanced as a result of that relationship.
ANALYSIS AND LAW
Moving on an ex parte (without notice) basis
[6] In Sprott Resources Lending Corp (Re), D.M. Brown J. laid out the two justifications for moving without notice to the party who would be affected by the order sought:
As the jurisprudence of this Court consistently has held, proceeding with an application (or a motion) on an ex parte basis is an extra-ordinary way of proceeding and only should occur (i) where there is good reason to believe that the responding party, if given notice, will act to frustrate the process of justice before the motion can be decided or (ii) where there is simply not the time and/or means to provide notice: Robert Half Canada Inc. v. Jeewan (2004), 2004 1532 (ON SC), 71 O.R. (3d) 650 (S.C.J.); Ignagni Estate (Re), 2009 54768 (ON SC).[4] [Emphasis added]
[7] Ms. Boyko has satisfied the test for proceeding with this motion on an ex-parte (without notice) basis. Her affidavit states that she is concerned that the priest will dissipate the equity in the Mississauga Property. She states that in December 2014, in the face of a criminal investigation surrounding Ms. Boyko’s claims, the priest’s wife, Ms. Trynoha, encumbered that property with a second mortgage. Having regard to Ms. Boyko’s age, how egregious the allegations of fraud are, and the encumbering of the Mississauga Property, I am satisfied that this is one of those extra-ordinary occasions where moving without notice to the defendants was appropriate.
Entitlement to Certificates of Pending Litigation
[8] In Perruzza v Spatone, 2010 ONSC 841, [2010] O.J. No. 493, Master Glustein (as he then was) provides an analysis for when a certificate of pending litigation should be granted pursuant to Section 103 of the Courts of Justice Act. Justice Glustein states at para. 20:
I rely on the following legal principles:
(i) The test on a motion for leave to issue a CPL made on notice to the defendants is the same as the test on a motion to discharge a CPL (Homebuilder Inc. v. Man-Sonic Industries Inc., 1987 CarswellOnt 499 (S.C. – Mast.) (“Homebuilder”) at para. 1);
(ii) The threshold in respect of the “interest in land” issue in a motion respecting a CPL (as that factor is set out at section 103(6) of the Courts of Justice Act, R.S.O. 1990, c. C. 43) is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed (1152939 Ontario Ltd. v. 2055835 Ontario Ltd., 2007 CarswellOnt 756 (S.C.J.), as per van Rensburg J., citing Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen. Div. – Comm. List) at para. 62);
(iii) The onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL has “a reasonable claim to the interest in the land claimed” (G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 6832 (ON CA), 2002 CarswellOnt 219 (C.A.) at para. 20);
(iv) Factors the court can consider on a motion to discharge a CPL include (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (S.C. – Mast.) at paras. 10-18); and
(v) The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted or vacated (931473 Ontario Ltd. v. Coldwell Banker Canada Inc., 1991 CarswellOnt 460 (Gen. Div.); Clock Investments Ltd. v. Hardwood Estates Ltd., 1977 1414 (ON SC), 1977 CarswellOnt 1026 (Div. Ct.) at para. 9).
[9] The issue is whether there is a triable issue as to whether the moving party has an interest in the property, not whether she has established that interest on a balance of probabilities. The requirement is that there be a reasonable issue involving an interest in the land.
Entitlement to a certificate of pending Litigation in relation to the Mississauga Property
Fiduciary Duty
[10] In Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 SCR 261, the Supreme Court of Canada analyzed the duty owed by a fiduciary. It examined 2 different categories within the fiduciary relationship. The Court states that there are per se (in itself) fiduciary relationships and ad hoc (for this situation) fiduciary relationships at paras. 29-36. The Court states at para. 33:
Fiduciary duties do not exist at large; they are confined to specific relationships between particular parties. Per se, historically recognized, fiduciary relationships exist as a matter of course within the traditional categories of trustee-cestui que trust, executor-beneficiary, solicitor-client, agent-principal, director-corporation, and guardian-ward or parent-child. By contrast, ad hoc fiduciary relationships must be established on a case-by-case basis.
[11] To establish a fiduciary duty on an ad hoc basis, a party must show:
In addition to the vulnerability arising from the relationship as described by Wilson J. in Frame: (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary’s control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control.
[12] The religious relationship between priest and parishioner, as displayed here, raises a triable issue as to the existence of a fiduciary relationship. As the payments were made for the Mississauga Property in 2001, when Ms. Boyko was 83 and a devout follower of the priest, there are serious issues as to whether there was a fiduciary relationship. Any monies that the priest induced Ms. Boyko to advance to him for the property, whether as a loan or otherwise, would appear to have been for his benefit, and in breach of the fiduciary duty owed by the priest to his parishioner. This is a triable issue.
[13] The triable issue required to establish entitlement to a certificate of pending litigation must relate to whether the moving party has an interest in land. In 306440 Ontario Ltd. v. 782127 Ontario Ltd., 2014 ONCA 548, at para 27, the Ontario Court of Appeal characterized a constructive trust claim as follows:
The very nature of the constructive trust remedy demands a close link between the property over which the constructive trust is sought and the improper benefit bestowed on the defendant or the corresponding detriment suffered by the plaintiff. Absent that close and direct connection, I see no basis, regardless of the nature of the restitutionary claim, for granting a remedy that gives the plaintiff important property-related rights over specific property. A constructive trust remedy only makes sense where the property that becomes the subject of the trust is closely connected to the loss suffered by the plaintiff and/or the benefit gained by the defendant.
[14] Ms. Boyko’s affidavit satisfies me that there was a direct link between the money’s “lent” and the purchase of the Mississauga Property. It is a triable issue as to whether the priest’s use of the proceeds advanced to him as a “loan” for the purchase of the house was in breach of a fiduciary duty and whether Ms. Boyko is entitled, on this basis, to a constructive trust, equitable lien, or equitable tracing of the funds into the property. Based on the alleged breach of fiduciary duty through the advance of funds to buy and maintain the property, I am satisfied there is a triable issue as to whether Ms. Boyko has an equitable interest in the land.
Entitlement to a certificate of pending litigation in the Windsor Property
[15] Under the Substitute Decisions Act, Section 38 states:
Section 32, except subsections (10) and (11), and sections 33, 33.1, 33.2, 34, 35.1, 36 and 37 also apply, with necessary modifications, to an attorney acting under a continuing power of attorney if the grantor is incapable of managing property or the attorney has reasonable grounds to believe that the grantor is incapable of managing property. 1992, c. 30, s. 38; 1996, c. 2, s. 25 (1).
[16] Section 32 implies that a person holding a continuing power of attorney owes the grantor a fiduciary duty.
[17] Ms. Boyko asserts in her affidavit that she was ill when she granted the power of attorney to the priest.
[18] It is a triable issue as to whether the priest breached a fiduciary duty to Ms. Boyko by using the power of attorney from her to access hers GIC and to purchase the Windsor Property and as to whether Ms. Boyko, on this basis, is entitled to a constructive trust interest in the Windsor Property arising either from fraud or from a breach of fiduciary duty.
[19] I therefore Order a Certificate of Pending Litigation over both properties.
Price J.
DATE: February 13, 2015
CITATION: Boyko v. Trynoha, 2015 ONSC 1022
COURT FILE NO.: CV-15-0658-00
DATE: 2015 02 13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CATHERINE BOYKO also known as KAY BOYKO - and - ROMAN TRYNOHA, MARIA TRYNOHA and MYKHAYLO TRYNOHA
BEFORE: PRICE J.
COUNSEL: Elena Mamey, for the Plaintiffs
No one appearing for the Defendants
REASONS FOR DECISION
Price J.
DATE: February 13, 2015