SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-14-3121-00
DATE: 2015 11 23
RE: SEAN WILSON v. SHARON GOODEN-ALLEN and DESMOND ALLEN
BEFORE: EMERY J.
COUNSEL:
Pathik Baxi and Amrita Mann, for the Plaintiff Sean Wilson
Robert R. Cucci, for the Defendants
Amandeep Sidhu, for the Proposed Intervenor Sean Brown
HEARD: In writing
ENDORSEMENT
[1] Sean Brown brings this motion as an interested party to be added as an intervenor in this action pursuant to Rule 13.01.
[2] Mr. Brown is party to an Agreement of Purchase and Sale dated June 4, 2015. Under that agreement, he has agreed to purchase 114832 Hurontario Street in Brampton ( the “property”) from Sean Brian Wilson. Mr. Wilson is selling the property under a notice of sale he has served under a second charge that was transferred to him by Surinder Singh Jass on June 3, 2015.
[3] The defendants are the chargors under the second charge they granted to Mr. Jass to secure a loan of $200,000 in March, 2011. Mr. Jass commenced this action to enforce his rights under the second charge because the defendants had not made any payments to Mr. Jass under the charge since September 2012.
[4] Sean Wilson obtained an order to continue from the court on August 19, 2015. Pursuant to that order, Mr. Wilson is now the plaintiff in this action.
[5] The defendants have served no motion for an order to set aside or to vary the order to continue.
[6] Sean Brown’s motion for an order granting him leave to intervene is brought within the context of the defendants’ motion to stay the sale of the property under Mr. Wilson’s notice of sale. In that motion for a stay, the defendants seek a further order that “the property be released from forfeiture/power of sale”.
A brief history
[7] Summary judgment has already been granted in this action against the defendants. The summary judgment motion brought by Mr. Jass was settled by Minutes of Settlement resulting in an order made by Justice Donohue dated December 9, 2014. Under that order, the defendants were required to pay $250,000 on or before January 30, 2015. Justice Donohue’s order further provided that if the defendants failed to make this payment, they were to pay Mr. Jass $260,292 plus interest, and that a writ of possession would issue in favour of the plaintiff on February 28, 2015.
[8] There is evidence before the court that the defendants did not make the payments required by Justice Donohue’s order, or at all. There is further evidence that Mr. Jass obtained a writ of possession on May 5, 2015, and that the defendants have been out of possession of the property since May 22, 2015.
[9] The defendants initially brought a motion for an order “to withdraw the writ of seizure and sale”. That motion was dismissed by Justice Fragomeni on May 21, 2015. The defendants subsequently brought the motion that is currently before the court after the second charge was transferred from Mr. Jass to Mr. Wilson. The defendants seek the order to stay the sale because they state they wish to redeem the second charge.
[10] At the first return of the motion on June 16, 2015, Justice LeMay ordered that there be no final sale of the property until after June 23, 2015 and adjourned the defendants’ motion to that date in accordance with the timetable set out in his endorsement. On that attendance, Justice LeMay framed the issues on the defendants’ stay motion in these terms:
Whether the timing of the transfer of the charge from Mr. Jass to Mr. Wilson was designed to frustrate the defendants’ efforts to pay the mortgage; and
Whether the house and property is being sold at a significantly lower price than its value.
[11] The initial parties to the action, along with Mr. Wilson and his counsel, appeared before me on June 23, 2015. I ordered that the sale of the property under the mortgage be stayed until July 14, 2015 or further order of the court, and I adjourned the motion to be heard by me on July 14, 2015.
[12] On July 14, 2015 the motion was further adjourned and the stay was extended to July 30, 2015. It was at this attendance that Mr. Cucci appeared for the defendants. The motion was adjourned to allow Mr. Cucci time to receive instructions, deliver materials and to prepare his submissions and argument. The hearing date of July 30, 2015 was made peremptory on the defendants.
[13] Mr. Wilson filed an affidavit sworn on July 8, 2015 that he had paid out the first charge held by Royal Bank of Canada on June 30, 2015 in the amount of $491,698.33. In exchange, he received a transfer of charge to become first mortgagee as well as the transferee of the second charge.
[14] Before any argument was heard on July 30, 2015, Mr. Cucci raised issues of standing with respect to Mr. Wilson, who had been filing materials on the motion as a self-described intervenor without having obtained an order to continue. Mr. Cucci argued that Mr. Wilson had no rights as a party because he had not obtained an order to continue as transferee of the charge or to intervene under Rule 11.01 or Rule 13.
[15] Mr. Sidhu also appeared as counsel for Mr. Brown on July 30, 2015 to seek standing on his behalf. The defendants’ motion was therefore adjourned yet again to September 11, 2015 for the argument on standing, and the stay was extended to that date.
[16] By September 11, 2015, Mr. Wilson had obtained an order to continue and Mr. Brown had brought a motion to be granted intervenor status. The defendants’ motion before the court that day was adjourned to a date to be fixed by the trial coordinator to address matters relating to standing for the purpose of the defendants motion, and I ordered that the temporary order staying the sale of the property under the agreement of purchase and sale continue until further order. The adjournment of the motion to address issues of standing was granted on consent terms. One of those terms provided that:
- With respect to the motion of the proposed intervenor, Sean Brown for leave to intervene, the said motion shall be in writing and the timetable shall be as follows:
a) the defendants shall serve and file responding material on or before September 28, 2015; and
b) Mr. Brown shall serve and file reply materials, if necessary, on or before October 7, 2015.
[17] It is this motion in writing I have before me.
Motion for leave to intervene
[18] I have been informed by Mr. Brown’s counsel that the defendants have not served any responding materials. I have not been informed by the court office that any responding materials to this motion have been filed. I therefore consider Mr. Brown’s motion for an order to seek intervenor status to be unopposed.
[19] Rule 13.01 provides the right to bring a motion for leave to intervene as an added party as follows:
LEAVE TO INTERVENE AS ADDED PARTY
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding. R.R.O. 1990, Reg. 194, r. 13.01 (1).
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. R.R.O. 1990, Reg. 194, r. 13.01 (2).
Mr. Brown must satisfy the test to be met by a proposed intervenor that he has a real interest in the litigation, and that he would have useful submissions that will be argued from a different perspective than the other parties. This test is set out in Reference re Workers’ Compensation Act, 1989 23 (SCC), [1989] 2 S.C.R. 335.
[20] In Gligorevic v. McMaster, [2010] O.J. No. 2848 (SCJ), Justice D.M. Brown (as he then was) confirmed that the conditions set out in the Rule 13.01(1) are disjunctive and only one of them need be met for granting leave.
[21] I conclude that Mr. Brown qualifies as a party capable of seeking intervenor status, and has met the test under rule 13.01 (1) for leave to intervene on the defendants motion to stay and their motion for an order that “the property be released from forfeiture/power of sale”. Mr. Brown is clearly as a real interest in the litigation by virtue of the agreement of purchase and sale he has entered with Mr. Wilson. Clearly, he is a person who may be adversely affected by a judgment or order in this action. The position of Mr. Brown will also have a direct bearing on the second question framed by Justice LeMay on June 16, 2015. Mr. Brown may have useful submissions for the court to hear from his perspective as a purchaser who is ready willing and able to close the purchase of the property. Those submissions would be unhampered by issues relating to the assignment of the second charge from Mr. Jass to Mr. Wilson, and would assist the court on making a determination as to the fair market value of the property.
[22] I must also consider Rule 13.01(2) that provides as follows:
LEAVE TO INTERVENE AS ADDED PARTY
13.01 (2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. R.R.O. 1990, Reg. 194, r. 13.01 (2).
[23] Mr. Brown deposes in the affidavit filed in support of his motion that including him as an intervenor will not unnecessarily delay the matter. I have no evidence to the contrary, or any reason to believe that adding him as an intervenor with the rights of a party will prejudice the determination of the rights of the parties to the defendants’ motion.
[24] The motion of Mr. Brown is therefore granted. An order shall go granting Sean Brown leave to intervene as an added party on the defendants’ motion.
[25] Costs may be addressed at the next attendance before me.
Emery J
DATE: November 23, 2015
COURT FILE NO.: CV-14-3121-00
DATE: 2015 11 23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SEAN WILSON v. SHARON GOODEN-ALLEN and DESMOND ALLEN
COUNSEL: Pathik Baxi and Amrita Mann, for the Plaintiff Sean Wilson
Robert R. Cucci, for the Defendants
Amandeep Sidhu, for the Proposed Intervenor Sean Brown
ENDORSEMENT
EMERY J
DATE: November 23, 2015