COURT FILE NO.: DC-16-17-00 ML DATE: 2016-06-01
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: HARJINDER BASSI and PARMJIT BASSI v. PAUL VIRINDER CHOWDHRY, SONIA CHOWDHRY, NIRMAL CHOWDHRY and HOPE MARION CHOWDHRY-BHAGRATH
BEFORE: Van Melle J
COUNSEL: Y.S. CHHINA, for the Plaintiffs H. ROSENBERG, for the Defendants
HEARD: In writing
E N D O R S E M E N T
1The plaintiffs, Harjinder Bass and Parmjit Bassi, seek leave to appeal from the February 1, 2016 order of Lemon, J. who discharged a Certificate of Pending Litigation and set aside an interim injunction put in place by LeMay, J. on June 16, 2015.
2The plaintiffs owned three properties in Brampton: 25 Flower Trail, 4 Flower Trail and 60 Huntspoint Drive. The plaintiffs reside at the Huntspoint property.
3On April 5, 2012 the Huntspoint property was transferred to the defendants Paul Virinder Chowdhry and Nirmal Chowdhry.
4On April 16, 2012 4 Flower Trail was transferred to Paul Virinder Chowdhry and Sonia Chowdhry for $2.00.
5On April 16, 2012 25 Flower Trail was transferred to Paul Virinder Chowdhry and Hope Marion Chowdhry-Bhagrath.
6The plaintiffs take the position that all three properties were transferred to the defendants in trust.
7All the defendants were related to Charanjit Bassi who was also a close friend and business partner to the plaintiff Harjinder Bassi. Harjinder Bassi says that Charanjit Bassi wished him to return to India to consider a business venture. Harjinder Bassi says that the understanding was that if he, Harjinder Bassi, agreed to become involved in the India venture the properties would be exchanged for a 50% share of the investment in the India venture. If he chose not to be involved, the properties were to be transferred back to him. Harjinder Bassi says that this was a verbal understanding made between him and Charanjit Bassi (in the presence of the defendant, Paul Virinder Chowdhry).
8Harjinder Bassi stayed in India from July 18, 2012 to December of 2013. While in India he continued to pay all the utility expenses on the Huntspoint property. Harjinder Bassi did not agree to become involved with the India venture and therefore requested the return of the three properties. Charanjit Bassi, however, passed away in March of 2014 before the transaction returning the properties, could be completed.
9The defendants initially refused to transfer the properties back to the plaintiffs. However, the plaintiffs offered to purchase the properties back for $700,000.00. An Agreement of Purchase and Sale was entered into. According to the plaintiffs the agreement should have referenced all three properties but in reality only referenced the Huntspoint property. The plaintiffs provided a $50,000 deposit toward the purchase but the transaction did not close.
10When the transaction failed to close, the defendants served a Notice of Trespass on the plaintiffs with respect to the Huntspoint property.
11In response, the plaintiffs brought a motion without notice before Justice LeMay claiming that the three properties were held in trust for them by the defendants and should be transferred back to them. They sought an injunction prohibiting the defendants from evicting them from the Huntspoint property along with a Certificate of Pending Litigation on all three properties.
12Subsequently the order of Justice LeMay, along with the supporting documents used to obtain the order, were served on the defendants. The plaintiffs moved for an extension of Justice LeMay’s order and the defendants moved for a discharge of Justice LeMay’s order. The motions were heard by Lemon, J. on December 23, 2015.
13Justice Lemon found that the plaintiffs failed to disclose all the facts to Justice LeMay. Significantly Justice Lemon found that the plaintiffs had failed to advise Justice LeMay that although the consideration for the transfers appeared to be $2.00 for each property, in fact the defendants had not only assumed the mortgages relating to each of the properties they also refinanced those mortgages to the tune of more than a million dollars. On the materials before Justice Lemon he found that the plaintiffs were seeking to have the properties transferred back to them free and clear of the mortgages.
14The plaintiffs also led Justice LeMay to believe that they were paying all the “outgoings” for the Huntspoint property when in reality they were making utility payments. The other expenses were being looked after by the defendants.
15Justice Lemon held that on that basis alone, that is the failure to make full and fair disclosure of all material facts, the Certificate of Pending Litigation should be discharged.
16Justice Lemon felt that the injunction order could also be discharged on that basis; however, he went on to consider the three part test applicable to injunctions. He found that the trust argument was not a serious question to be tried; he found that the plaintiffs would not suffer irreparable harm if evicted from Huntspoint; and with respect to the balance of convenience he found that the defendants should not have to keep paying the mortgage on the Huntspoint property while the plaintiffs lived there.
17He declined to grant an order in favour of the defendants for the eviction of the plaintiffs from the property. He also declined to order that the $50,000 deposit go to the defendants.
Test for Leave to Appeal
18The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.
19Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992) , 7 O.R. (3d) 542 (Div. Ct.).
20Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co . , [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp . (1992) , 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd . (1986) , 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988) , 65 O.R. (2d) 110 (Div. Ct.).
Analysis
21It was open to Justice Lemon to come to the conclusions that he did based on the evidence before him. Although the plaintiffs produced a great deal of documentation to support their position, it is not up to me to rehear the motion that was before Justice Lemon. He made no error in law. As well, this appeal does not raise matters of such importance that leave to appeal should be granted. There is no conflicting decision relevant to the matters in issue here.
22None of the requirements for leave to appeal have been established by the plaintiffs and the plaintiffs’ motion for leave to appeal is therefore dismissed.
23If the parties cannot agree on costs, I will entertain written submissions not to exceed three double spaced pages and a costs outline. All submissions are to be received by me on or before July 7, 2016.
Van Melle, J
DATE: June 1, 2016