ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-512872;
CV-14-516232
DATE: 20151119
BETWEEN:
Court File No. CV-14-512872
KATARINA GRANGER and
HELENA GRANGER
Applicants
– and –
JOHN GRANGER and
MARGARET JURASITS
Respondents
AND BETWEEN:
Court File No. CV-14-516232
JOHN GRANGER
Applicant
– and –
KATARINA GRANGER and
HELENA GRANGER
Respondents
Bruce Baron, for the Applicants
Saba Ahmad, for the Respondents
Saba Ahmad, for the Applicant
Bruce Baron, for the Respondents
HEARD: November 18, 2015
ENDORSEMENT
Diamond j.:
[1] On October 20, 2015, I released my Reasons for Decision (“trial decision”) dismissing the claims of the applicant John Granger (“John”) for a beneficial ownership interest in the property municipally known as 75 Parkway Avenue, Toronto, Ontario (“the property”), and owned jointly by the respondents Katarina Granger (“Katarina”) and Helena Granger (“Helena”). Those Reasons followed a nine day trial of two issues as ordered to be tried as per my original Reasons for Decision released on March 23, 2015 (“original decision”).
[2] Since then, while the parties have taken out two orders arising from my original decision, they have encountered difficulty in finalizing the terms of the draft order arising from my trial decision (“draft order”). On November 6, 2015, counsel for all parties attended before Assessment Officer Ittleman, and settled nearly all of the terms of the draft order. However, John refused to consent to the issuance and entry of that draft order, as he insisted upon the inclusion of an additional paragraph stating as follows:
THIS COURT ORDERS, on a without prejudice basis and solely in order to preserve the Applicants’ rights, paragraph 5 of this Order is hereby stated until the time for delivery a Notice of Appeal has expired, or, in the event that the Applicant timely delivers a Notice of Appeal until the Applicants’ appeal is disposed of by the Court of Appeal.
[3] There is nothing in my trial decision which could support the inclusion of the above paragraph. Notwithstanding, John continued to insist upon the inclusion of that (or a similar) paragraph, resulting in a telephone conference which took place on November 18, 2015.
[4] To begin, although not explicitly stated in my trial decision, paragraph 6 of the order issued and entered in the application of Katarina and Helena must now be set aside. As I have found that John has no beneficial ownership interest in the property, he has no further right to obtain leave to issue and register a certificate of pending litigation against title to any new property purchased by Katarina and/or Helena with the sale proceeds. Accordingly, the draft order should reflect same.
[5] I am advised by counsel for John that he has now served and filed a Notice of Appeal of both my original and trial decisions with the Court of Appeal for Ontario, and as such it is John’s position that pursuant to Rule 63.01(1) of the Rules of Civil Procedure, there is an automatic stay of paragraph 160 of my trial decision (now contained in paragraph 5 of the draft order) wherein I ordered that the net proceeds from the sale of the property may be released upon the joint instructions of Katarina and Helena.
[6] Subject to what a Judge of the Court of Appeal for Ontario may find (as described further below), I do not agree with John’s position. As held by Feldman J.A. in Picavet v. Clute 2012 ONCA 441 (C.A.), a release of funds which were held in trust pending the disposition of a proceeding, and found to be belonging to the respondent, is not a “payment of money” as defined by Rule 63.01(1).
[7] To my understanding, John has not obtained a Certificate of Stay from the Court of Appeal for Ontario. Until such time as John obtains a stay pending appeal from the Court of Appeal for Ontario, there is no current stay of paragraph 160 of my trial decision (again, paragraph 5 of the draft order).
[8] John thus asks in the alternative that I order an interim stay of paragraph 160 pending John bringing a motion before a judge of the Court of Appeal for Ontario pursuant to Rule 63.02(1)(b) for a stay pending the disposition of his appeal of my decisions. John is also asking that the interim stay require 100% of the sale proceeds from the property to remain in trust until such time as his motion for a stay pending appeal is determined by a Judge of the Court of Appeal for Ontario.
[9] The jurisdiction of the Court of Appeal for Ontario has been engaged by the filing of a Notice of Appeal. With some reluctance given the complete lack of formal motion or sworn evidence before me, I am prepared to order an interim stay of paragraph 160 of my trial decision (paragraph 5 of the draft order) to permit John to seek a stay pending appeal from a Judge of the Court of Appeal for Ontario. However, this interim stay shall be upon the following strict terms:
a) John’s motion must be argued in the Court of Appeal for Ontario by no later than December 18, 2015, failing which the interim stay shall immediately cease and be of no force and effect, and
b) the interim stay shall only apply to a 50% interest in the sale proceeds.
[10] As set out in paragraphs 140-141 of my trial decision, John only claimed a 50% interest in the property/sale proceeds at trial. Obviously, on appeal John cannot obtain any higher beneficial ownership interest than what he sought before me at trial.
[11] Katarina and Helena are the joint owners of the property, and as found in paragraph 142 of my trial decision, John never sought to have the transfer of title to the property from Katarina to Katarina and Helena set aside.
[12] The parties shall move expeditiously to finalize the terms of the draft order consistent with my trial decision and this endorsement. To the extent that the parties cannot agree upon the terms of the draft order, there shall be no further telephone case conferences and counsel shall file their respective versions of the draft order with my assistant Olga Misko for my review and signature.
Diamond J.
Released: November 19, 2015
COURT FILE NO.: CV-14-512872;
CV-14-516232
DATE: 20151119
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Court File No. CV-14-512872
KATARINA GRANGER and
HELENA GRANGER
– and –
JOHN GRANGER and
MARGARET JURASITS
AND BETWEEN:
Court File No. CV-14-516232
JOHN GRANGER
– and –
KATARINA GRANGER and
HELENA GRANGER
ENDORSEMENT
Diamond J.
Released: November 19, 2015