CITATION: Sammut v. Sammut, 2015 ONSC 2696
COURT FILE NO.: CV-14-2716-00
DATE: 2015 04 27
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Charles Sammut v. Susanne Sammut and Josephine Spiteri and Josephine Spitiri v. Charles Sammut, Royal Bank of Canada, Manju Gurjot Sekhon, The Estate of Dennis Ray Cook, Deceased, by his Estate Trustee, Roberta Gladys McLean.
BEFORE: WOOLLCOMBE J
COUNSEL: J. Copelovici, Counsel for the Plaintiff/Defendant Charles Sammut by Counterclaim R. Winterstein, Counsel for the Defendant to Counterclaim Manju Gurjot Sekhon N. Brown Dunbar, Counsel for the Defendant to Counterclaim Royal Bank of Canada T. Inkster, Counsel for the Defendant/Plaintiff Josephine Spiteri by Counterclaim
HEARD: April 23, 2015
ENDORSEMENT
[1] The plaintiff Charles Sammut is the husband of the defendant Susanne Sammut and the son-in-law of the defendant Josephine Spiteri. Proceedings were commenced by way of Notice of Application issued on the plaintiff’s behalf, and were converted into a trial of an issue by order of Justice André on August 19, 2014. Susanne Sammut has been noted in default. The plaintiff brings a motion for summary judgment and seeks various forms of relief against both defendants.
[2] Prior to the hearing of the motion, plaintiff’s counsel advised that he wished to adjourn the motion as against Josephine Spiteri. I am advised that Mr. Inkster, counsel for Ms. Spiteri, consented to this adjournment request. He did not attend for the hearing of the motion. The motion as it relates to Ms. Spiteri is adjourned sine die.
[3] The plaintiff’s claim against Ms. Sammut is based on his affidavit evidence that, beginning in about 2005, she began to divert and steal money from him without his knowledge and consent. In his affidavit, the plaintiff sets out the various aspects of the defendant’s conduct that led to his financial losses. The total amount claimed, as set out in the statement of claim, is $465,670.22.
[4] Ms. Sammut was not present in court and has not provided any materials in response to the motion. She is well aware of the plaintiff’s claim and appeared in court on the first return of the application before Donohue J. on July 22, 2014. At that time, she provided an address at which she was to be served. Subsequently, on August 19, 2014, Justice André ordered that the plaintiff could serve Ms. Sammut by email. An attempt was made by the plaintiff to serve Ms. Sammut with the motion material by email, but that email no longer functions. I understand that her whereabouts are unknown. In these circumstances, I heard the motion in Ms. Sammut’s absence.
[5] I have set out below the various orders sought by the plaintiff in his notice of motion and my disposition in relation to each.
a) Judgment in the sum of $466,420.22 inclusive of costs of $750.00 made by Justice Donohue on July 22, 2014 against the defendant Susanne Sammut
[6] The plaintiff seeks summary judgment against Susanne Sammut in the amount of $466,420.22, inclusive of costs of $750 ordered against her by Justice Donohue on July 22, 2014.
[7] Under rule 20.04(2)(a), on a motion for summary judgment, I must determine whether the moving party has established that there is “no genuine issue requiring a trial with respect to a claim or defence”. I am first to determine whether there is a genuine issue for trial based on the evidence in the motion record (See Hryniak v. Maudlin, 2014 SCC 7, [2014] S.C.J. No. 7). It is only if I decide that there is a genuine issue for trial that I am to determine if the need for a trial can be avoided using the enhanced fact-finding powers under rules 20.04(2.1) and (2.2). On a motion for summary judgment, the parties are expected to provide a complete evidentiary record for their cases.
[8] Ms. Sammut has put no material before me. I am advised that she has been noted in default, the consequences of which are set out in rule 19.02. Of significance, Ms. Sammut is deemed to admit the truth of all allegations of fact made in the statement of claim.
[9] The plaintiff has provided an affidavit setting out in detail the various losses that he claims. The various heads of loss correspond to those set out in his statement of claim.
[10] On the unchallenged evidence before me, I am prepared to grant summary judgment against Ms. Sammut in the amount of $466,420.22.
b) The request for an order that the funds owing to Susanne Sammut are trust funds and survive bankruptcy
[11] On the basis of the unchallenged evidence before me, I accept that Susanne Sammut used fraud and theft to obtain funds that are now owed to the plaintiff. This finding will mean that, by virtue of s. 178(1) of the Bankruptcy and Insolvency Act, the money owing to the plaintiff will survive bankruptcy.
c) The request to vest in the plaintiff all rights, title and interest in the monies belonging to Susanne Sammut generated from the sale of the jointly held residence
[12] An action was commenced by Royal Bank of Canada (RBC) against the plaintiff and defendants by virtue of default on the mortgage which had been placed on the home jointly owned by the three of them at 25 Dod’s Drive in Caledon. This property was sold on January 30, 2015 and the balance is held in trust by RBC pending final distribution.
[13] Counsel for RBC attended at court and expressed concern about any order I might make affecting the bank’s ability to make ongoing payments from the trust funds generated by the disposition of the home. Counsel for the plaintiff explained that his concern was to ensure that RBC does not distribute proceeds of the sale to Ms. Sammut prematurely.
[14] Counsel for RBC has undertaken, on behalf of the bank, not to distribute surplus funds to any of the three owners of the property until there is further agreement of the parties or a court order. RBC will continue to pay expenses out of those funds as necessary. The plaintiff does not seek to reverse anything that has been done with respect to those proceeds to date.
[15] At the request of the plaintiff, his request for an order vesting in him the right to monies payable to Susanne Sammut from the proceeds of the sale of the home is adjourned sine die.
d) The request for a declaration that Susanne was a one-quarter owner of the property
[16] At the request of the plaintiff, this request is adjourned sine die.
e) The request for an order vesting in the plaintiff all property in his possession belonging to Susanne Sammut
[17] The plaintiff relies on ss. 97 and 100 of the Courts of Justice Act in support of his request for an order vesting in him personal property belonging to Susanne Sammut, including her engagement ring and wedding band. A vesting order is a discretionary remedy that may be issued where a party can establish a separate, valid claim to possession or ownership by virtue of statute, common law, or equity. In Trick v. Trick (2006) 2006 CanLII 22926 (ON CA), 81 O.R. (3d) 241 (C.A.), Lang J.A. for the Court stated at paragraphs :
In my view, s. 100 of the CJA does not provide stand-alone jurisdiction to grant the relief claimed. Section 100 only provides a mechanism to vest title to a property in respect of which there is a separate, valid claim to ownership…
(See also: St. Onge v. Willowbay Investments Inc 2010 ONSC 3318 at paragraphs 43-46)
[18] There is no evidence before me that the plaintiff is entitled to ownership or possession of Ms. Sammut’s personal property. He has not met the test imposed for a s. 100 vesting order and I decline to make such an order.
f) The request for an order directing that monies that might be payable to Susanne Sammut from Ms. Sekhon be payable directly to the plaintiff
[19] Manju Gurjot Sekhon is a lawyer. The plaintiff and Ms. Spiteri have each made a claim against Ms. Sekhon for negligence in allowing a $350,000.00 mortgage to be registered as against the jointly held home at 25 Dod’s Drive, Caledon. In his motion, the plaintiff seeks an order directing that any monies that might be payable to Susanne Sammut from Ms. Sekhon, be payable to him to be applied as against the monies owing to him by Ms. Sammut. Counsel for Ms. Sekhon attended at court and advises that Ms. Sammut has not brought any claim against Ms. Sekhon. He expressed concern that any order I might make could only be based on the hypothetical that Ms. Sammut might bring a successful claim against Ms. Sekhon at some point in the future. As I indicated at the hearing, I am not prepared to make any order with respect to this hypothetical.
Costs
[20] The plaintiff seeks costs of the motion of $6,957.38, inclusive of disbursements, on a substantial indemnity basis. The costs outline I was given includes time spent for the July 14, 2014 appearance before Justice Donohue. Costs have already been awarded in relation to this appearance and my costs award must be reduced to reflect this. I agree that it is because of Ms. Sammut’s fraud that these proceedings are necessary and that as a result, she should be liable on a substantial indemnity basis. I award costs of $5,000.00, inclusive of disbursements.
Disposition
(i) The motion as against the defendant Josephine Spiteri is adjourned sine die.
(ii) Judgment in the sum of $466,420.22 inclusive of costs of $750.00 made by Justice Donohue on July 22, 2014 is ordered for the plaintiff against the defendant Susanne Sammut.
(iii) I order that the sum of $466,420.22 found to be owing by the defendant Susanne Sammut to the plaintiff is payable to him by virtue of her having defrauded and stolen from him this sum.
(iv) The request to vest in the plaintiff the right to title and interest in the monies belonging to Susanne generated from the sale of property is adjourned at the request of the plaintiff sine die.
(v) The request to declare that Susanne Sammut was a one-quarter owner of the premises is adjourned at the request of the plaintiff sine die.
(vi) The request for an Order vesting in the plaintiff all property belonging to Susanne is dismissed.
(vii) The request that any monies that might be payable to Susanne from Ms. Sekhon be payable to the plaintiff is dismissed.
(viii) Costs of $5,000.00 are awarded to the plaintiff.
WOOLLCOMBE J
Date: April 27, 2015
COURT FILE NO.: CV-14-2716-00
DATE: 2015 04 27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Charles Sammut v. Susanne Sammut and Josephine Spiteri and Charles Sammut, Royal Bank of Canada, Manju Gurjot Sekhon, The Estate of Dennis Ray Cook, Deceased, by his Estate Trustee, Roberta Gladys McLean.
COUNSEL: J. Copelovici, Counsel for the Plaintiff/Defendant Charles Sammut by Counterclaim R. Winterstein, Counsel for the Defendant to Counterclaim Manju Gurjot Sekhon N. Brown Dunbar, Counsel for the Defendant to Counterclaim Royal Bank of Canada T Inkster, Counsel for the Defendant/Plaintiff Josephine Spiteri by Counterclaim
ENDORSEMENT
WOOLLCOMBE J
DATE: April 27, 2015