Citation: Koulogiannis v. Mavraidis, 2015 ONSC 2436
COURT FILE NO.: CV-14-00504437-0000
DATE: 20150424
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KONSTANTINA KOULOGIANNIS and ANGELO KOULOGIANNIS Plaintiffs/and Responding Party
– and –
OREANTHE MAVRAIDIS Defendant/Moving Party
Konstantina Koulogiannis, personally for the Plaintiffs-Respondents
Charles Baker, for the Defendant-Moving Party
HEARD: April 9, 2015
REASONS
[1] The defendant, Oreanthe Mavraidis seeks summary judgment dismissing the plaintiff’s claim as well as a judgment for possession of the home known municipally as 100 Tower Drive, Toronto including a writ of possession to be stayed until June 30 in order to obtain vacant possession of the home from the plaintiffs. The defendant is not seeking judgment on her counterclaim although the plaintiffs have not defended that claim and the Court was advised by defence counsel that the plaintiffs were noted in default in March, 2015. The plaintiffs are self-represented and Konstantina Koulogiannis attended on behalf of herself and her spouse, the plaintiff Angelo Koulogiannis. Konstantina Koulogiannis is the daughter of Oreanthe Mavraidis who did not file material and, as such, did not place actual evidence before the Court. As a result, information referred to as being from the plaintiff in these reasons is problematic and was objected to by counsel for the defendant.
[2] The Court advised Ms. Koulogiannis of the importance of having legal advice and of the possible outcome of the matter proceeding today, that is her mother could obtain the relief being sought above, and Ms. Koulogiannis indicated her understanding of same.
[3] The plaintiffs oppose the relief sought on the basis that within the value of the property is a gift of $100,000 from the defendant and her (now late) husband which was provided to the plaintiff, Ms. Koulogiannis with the same gift made to her three siblings and that the relief sought fails to account for, presumably on the basis of a constructive trust, the value of the expenses paid by the plaintiffs in the upkeep of the property. According to the plaintiff, she and her spouse do not have the funds necessary to obtain alternative accommodation for themselves and their three children, ages 15, 12 and five.
Background
[4] These unfortunate circumstances can be summarized as follows:
(a) 100 Tower Drive, Toronto was purchased for $272,000 in September, 2002 for the plaintiffs and their family to live in. According to Ms. Koulogiannis, it was to enable her parents, particularly her father, who did not drive, to have greater contact with his grandchildren;
(b) The purchase was funded by $150,000 mortgage from Royal Bank of Canada co-signed by her late father who also provided the balance of the funds necessary to complete the purchase, that is $114,167.18. This is the amount, according to Ms. Koulogiannis, that was the gift from her parents;
(c) The plaintiffs sold their property in Richmond Hill which did not close until January, 2003 and failed to result in funds of any significance being available to repay Peter Mavraidis;
(d) Title in 100 Tower Drive was placed in the name of the plaintiff, Angelo Koulogiannis and (the late) Peter Mavraidis as tenants in common;
(e) It was clear the plaintiffs were required to make all payments necessary to maintain the property including the mortgage, which they failed to do by August, 2003, resulting in the Royal Bank of Canada commencing collection proceedings;
(f) As a result, Peter Mavraidis paid off the mortgage and re-mortgaged the property through a corporation he owned, New York House Ltd. for the purchase price of $272,000 which was also not paid such that Peter Mavraidis issued a Notice of Sale on September 24, 2004;
(g) The plaintiffs’ continual inability to make the necessary payments resulted in a further arrangement to transfer ownership in the property to Peter Mavraidis and Oreanthe Mavraidis as tenants in common. Angelo Koulogiannis agreed to the sale of his interest with title to the property transferred and registered December 16, 2004 and includes a Certificate of Independent Legal Advice signed by Angelo Koulogiannis (Exhibit O to the affidavit of Oreanthe Mavraidis sworn November 19, 2014);
(h) In return, the Koulogiannis’ family was permitted to continue to reside at the property. As claimed by Ms. Koulogiannis in her submissions, she and her spouse continued to make efforts to pay the requisite utility bills, insurance and taxes but she acknowledged they fell behind;
(i) Peter Mavraidis passed away January 27, 2007 (or January 27, 2006 according to Ms. Koulogiannis) which results in the defendant becoming the sole owner of the property;
(j) The relationship between members of this family deteriorates and the financial circumstances of the parties worsen. As indicated by Ms. Koulogiannis this is compounded by damage to the property in the ice storm of December, 2013 resulting in significant damage which has yet to be repaired. Ms. Koulogiannis acknowledges that the property taxes of about $3,500 per year have remained unpaid for the past 2.5 years with a current outstanding tax bill in excess of $15,000 and the Municipality beginning to take the necessary steps to be paid through a tax sale;
(k) The defendant took legal steps before the Rental Housing Tribunal to have the plaintiffs evicted which was met by the issuance of this Statement of Claim May 16, 2014 which included the allegation of an interest in the property that removed jurisdiction before the Rental Housing Tribunal. The action was defended and the counterclaim for damages resulted.
Issue – Summary Judgment
[5] The defendant seeks summary judgment on the basis there is no genuine issue requiring a trial in the main action. The test is enunciated by Justice Karakatsanis in the Supreme Court of Canada decision of 2014, Hryniak v. Mauldin, 2014 SCC 7. In paragraph 47 of that decision, it states summary judgment “must be granted where there is no genuine issue for trial” (paragraph 49). There is no genuine issue for trial “when the judge is able to reach a fair and just determination on the merits”. It seems clear that despite repeated opportunities given to the plaintiffs to assist them in having affordable housing near the rest of the family, they have, regrettably, been unable to make ends meet which is now detrimental to the defendant, given her financial circumstances. The value in the property must be realized. In the absence of any evidence to support the allegation contained in the Statement of Claim, the affidavit evidence of Oreanthe Mavraidis must be accepted. The Court particularly relies on the fact the transfer of the property from the plaintiff, Angelo Koulogiannis to the defendant and her spouse, in December, 2004 is properly supported by the Certificate of Independent Legal Advice.
[6] Counsel for the defendant also raised a comment in paragraph 76 of Hyrniak that the goal should be “proportionate, cost effective and timely dispute resolution”. It is the Court’s view that the sale of this property sooner rather than later will maximize its value to this family and actually put the defendant in a position to assist her daughter and grandchildren financially if she so chooses. Thus it is the decision of the Court that the motion for summary judgment be granted and the action is dismissed. The counterclaim may proceed if the defendant so chooses.
Issue – Resulting Trust, Constructive Trust and Unjust Enrichment
[7] The defendant correctly identified the components of a resulting trust which includes “returning the” property to the person who gave it and is entitled to it beneficially, from someone else who has title to it” (Kerr v. Baranow, 2011 SCC 10 at paragraph 16). Here, the ownership of the property in question is with the defendant and the Court has found such ownership is properly in the name of the defendant. The conclusion must be there is no resulting trust.
[8] With regard to the claim of unjust enrichment, there are three elements to establish. The first is that Oreanthe Mavraidis has or will receive a benefit. The second is that benefit will be at the expense (or deprivation) of Angelo and Konstantina Koulogiannis. Third, it would be inappropriate for such a result to occur (the absence of a juristic reason for the enrichment as stated in paragraph 32 of Kerr v. Baranow, 2011 SCC 10).
[9] As title or ownership of the property rests with Oreanthe Mavraidis and Angelo and Konstantina Koulogiannis have been unable to demonstrate any added value they have brought to the property, a claim on this basis by Angelo and Konstantina Koulogiannis must fail. In fact, Ms. Koulogiannis acknowledged the property is in a state of significant disrepair. To describe it differently, the claim by Ms. Koulogiannis and her spouse would have been much stronger if they could have shown that by their efforts, expenditures on the property, modifications, improvements or work done, the property could be sold at a higher amount than what Ms. Mavraidis could reasonably expect. The evidence and the statements by Ms. Koulogiannis indicate the contrary. The conclusion is that there is no resulting trust.
Issue – Vacant Possession and Writ of Possession
[10] The conclusion of the Court is that Ms. Mavraidis should have possession of the property as soon as possible in order to convert the value in the property to cash which appears to be needed by all of the family. During submissions, after disclosure of Ms. Koulogiannis having three school aged children, defence counsel suggested a stay of the issuance of an order for possession and the Writ of Possession to the end of the school year, or June 30, 2015. Ms. Koulogiannis asked for additional time. However, she and her family must realize they are residing in a property owned by someone else (her mother) who requires and is entitled to the funds it can provide upon sale. As this Court stated to the defendant and a sister of the defendant present in the courtroom plus counsel for the defendant, it is the sincere hope that the relationship between parent and child, siblings, aunts and cousins can improve for the greater good of all and that this may necessitate one of them taking that awkward first step and being the better person in order to achieve some level of reconciliation.
Costs
[11] Defence counsel tendered a costs outline for full indemnity at $15,682.41 acknowledging this amount was excessive with regard to the time estimated would be spent on argument. The demand for costs was reduced to $7,500 inclusive of fees, HST and disbursements which the Court agrees is appropriate in the circumstances, if demanded.
Disposition
[12] Counsel for the defendant also raised and requested dispensing with having the order resulting from this decision approved as to its form and content by the plaintiffs. The Court explained to Ms. Koulogiannis that as a result of this motion and the decision made a document would be prepared that she would ordinarily be entitled to review and agree reflects accurately what the Court has ordered. I indicated that I would review the draft order before signing same so that it accurately reflects the following:
the plaintiff’s action (for what is sought in paragraph one in the Statement of Claim) is dismissed;
the defendant is entitled to and shall have possession of the property known municipally as 100 Tower Drive, Toronto as of June 30, 2015;
the defendant may issue a Writ of Possession for the property but such Writ is stayed until June 30, 2015;
the plaintiffs are hereby ordered to vacate the property known municipally as 100 Tower Drive, Toronto by June 30, 2015;
the defendant may take any and all steps to enforce this order and evict the plaintiffs from the property known municipally as 100 Tower Drive, Toronto as of June 30, 2015;
the counterclaim remains an issue between the parties;
the costs of this motion is fixed in the amount of $7,500 inclusive of fees, HST and disbursements and payable by the plaintiffs to the defendant, if demanded.
Mr. Justice G. Dow
Released: April 24, 2015
CITATION: Koulogiannis v. Mavraidis, 2015 ONSC 2436
COURT FILE NO.: CV-14-00504437-0000
DATE: 20150424
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KONSTANTINA KOULOGIANNIS and ANGELO KOULOGIANNIS Plaintiffs/and Responding Party
– and –
OREANTHE MAVRAIDIS Defendant/Moving Party
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: April 24, 2015