SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 3547/15

DATE: 2015-10-29

RE: ERIK ALBERT JENSEN and DEIDRIE ANN JENSEN, Plaintiffs

AND:

GEORGE DAVID GOWANS and THORNWOOD FINE HOMES INC., Defendants

BEFORE: Gray J.

COUNSEL:
Jonathan H. Marler, Counsel for the Plaintiffs (Responding Parties)

George Limberis, Counsel for the Defendants (Moving Parties)

CONSIDERED IN CHAMBERS: October 29, 2015

ENDORSEMENT

[1] I have considered a motion for leave to appeal, brought by the defendants, in which they seek leave to appeal from the order of Gibson J. dated September 16, 2015, whereby he granted leave to issue a Certificate of Pending Litigation (CPL). What follows are my brief reasons for dismissing the motion.

[2] The underlying dispute has to do with the purchase of a home that had not yet been constructed. In substance, the plaintiffs claim that they advanced significant funds to the defendants, and that the home was not completed on time, which resulted in the termination of the agreement of purchase and sale. The plaintiffs claim that they advanced a sum of $109,478.59.

[3] In addition to claiming damages and the return of the money advanced to the defendants, the plaintiffs make the following claim:

18. The plaintiffs’ monies have been used to improve the property and the plaintiffs, therefore, claim an interest in the property, which they seek to protect by the registration of a Certificate of Pending Litigation against the property.

[4] After a number of adjournments, the motion for a CPL came before Gibson J., as a contested motion, on September 16, 2015. The only affidavit filed by the defendants was an affidavit filed in support of a request for an earlier adjournment. That affidavit said nothing about the merits of the motion for leave to issue a CPL.

[5] Justice Gibson’s endorsement is brief. However, he referred to one of the leading cases dealing with the relevant factors for the issuance of a CPL, 572383 Ontario Inc. v. Dhunna, [1987] O.J. No. 1083 (Master), and stated “I am satisfied that the plaintiffs have provided sufficient evidence to establish a reasonable claim to an interest in the land based upon the facts, for which a CPL should issue.” Justice Gibson awarded $9,000 in costs to the plaintiffs.

[6] The defendants rely primarily on rule 62.02(4)(b), under which the moving party must satisfy me that there is good reason to doubt the correctness of the order, and that the proposed appeal involves matter of such importance that, in my opinion, leave to appeal should be granted.

[7] Without deciding the point, I am prepared to assume that there is good reason to doubt the correctness of Justice Gibson’s order. However, it is also clear that he had some grounds for making the order.

[8] Contrary to the submissions of the defendants, the plaintiffs not only claim damages, they claim that the funds they advanced were used to improve the property. Without using the words “constructive trust”, it is clear that they claim an interest in the land by virtue of a constructive trust: see Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen.Div.).

[9] In my view, regardless of whether there is good reason to doubt the correctness of Gibson J.’s order, the defendants cannot satisfy the second branch of the test. The simple issue before Gibson J. was whether or not a CPL should be granted in the particular circumstances of the case. In the exercise of his discretion, he decided that a CPL should be issued. The issue he decided is of no importance to anyone other than the parties to the dispute. It has no broader implications that require the consideration of an appellate court.

[10] For these reasons, the motion for leave to appeal is dismissed.

[11] One of the advantages of the new procedure under which motions of this sort are determined in writing is that costs are kept to a minimum. In the circumstances, I award costs to the plaintiffs fixed in the amount of $750, all-inclusive.

Gray J.

Date: October 29, 2015