COURT FILE NO.: CV-14-505764 Heard: April 7, 2016 Released: June 9, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nabi v. Qadeer

BEFORE: Master Joan Haberman

COUNSEL: Dutta, C, for the moving party Panacci, M. for the responding party

Reasons

Master Haberman:

[1] The plaintiff, Abdul Nabi, seeks to register a certificate of pending litigation (CPL) against a property that the defendant, Amar Qadeer, legally owns. Nabi claims he is the beneficial owner of the property, located at 2 Elmdon Court, Toronto (the property) pursuant to a trust agreement. There is no written agreement between the parties to support this allegation.

[2] The evidence filed with the court and the weight to be given to it is, therefore, critical. It is all the more important here, in that these two men contradict one another repeatedly and much of what each says is unsupported by documentary proof.

[3] I have broken the evidence down by subject area, so that the evidence from each party as it pertains to each issue can be more easily viewed, assessed and compared.

[4] An overview of the pleadings is helpful before dealing with the evidence.

The Pleadings

Statement of Claim

[5] In his statement of claim, Nabi seeks a declaration that Qadeer holds the property in trust for him, as he claims to be the beneficial owner. He asserts that the terms and conditions of this trust are oral because Qadeer advised him not to put them in writing.

[6] Nabi has not set out in his claim when this trust agreement was reached or what the agreement actually involves in any detail. A careful reading reveals two terms: Nabi says that for the sum of $5000, Qadeer agreed to act as his “accommodation party” and Qadeer agreed to transfer legal title to Nabi upon request. That is all Nabi says the parties agreed upon.

[7] Nowhere in the pleading does Nabi actually explain how he became the beneficial owner or why Qadeer would agree to this arrangement for payment of only $5000. He states only that Qadeer became the registered owner as an accommodation party for him. According to Nabi, Qadeer was also his real estate advisor, at that time.

[8] Nabi pleads that he provided all monies required to meet the financial obligations including mortgage payment, utilities, taxes, insurance, legal costs and maintenance of the property though he does not plead that this is what the parties agreed would occur. He also fails to say what was agreed regarding the rent paid by tenants in the house.

[9] Nabi also says he provided monies and other consideration for the acquisition of the property. Although he does not explain the form this other consideration took, he asserts that he put up $5000 as the deposit with the agreement of purchase and sale; paid a further $2500 to obtain an extension of the closing date; and paid $9645.85 on closing. This represents a total payment of only $17,145.85. It appears a further $2500 was paid for a second extension, although it is unclear who paid that amount.

[10] Nabi states that he assumed the existing tenants and that he exercised possession and control of the property as Landlord. He says nothing in the pleading about how he managed to do this, in that the tenants were in sole possession of the only portion of the premises that were habitable. Nabi simly stored some items in the unfinished basement of the house. Further, as the evidence later reveals, it was Qadeer, not Nabi, who took the tenants to the Board when he wanted to them to vacate the premises.

[11] Nabi states that Qadeer was prepared to transfer title of the property to Nabi’s wife in 2011, but as she did not qualify for a mortgage, things remained as they were. In July 2012, Qadeer asked if he could rent the property and Nabi says that he agreed, as long as the rent covered the mortgage payments, taxes and insurance. Qadeer moved in at that time and it appears that he has remained there ever since.

[12] Nabi states that his wife’s circumstances changed in 2014, but when he asked Qadeer again in April 2014 to transfer the property, he was met with a different response. This time, Qadeer refused to transfer title without an assurance that he would receive half the proceeds.

[13] The claim is set out in only 10 paragraphs contained on two pages. Although Nabi is shown as a self-represented litigant, he clearly had assistance drafting this. When cross-examined, he indicated that Naveer Butt had assisted him, but that he was not a “proper lawyer”. He did not explain what that meant, but it is a relevant fact, as it was Butt who was involved with the closing of this transaction on his/Qadeer’s behalf. Neither party appears to have sought to examine Butt as a witness to a pending motion.

[14] Nabi appears to have been represented by a “proper” counsel since at least April 2015, when Ms. Dutta filed a motion on his behalf, without apparently filing a notice of appointment of solicitor. Despite her involvement, there has been no suggestion of an amendment to this pleading.

[15] It therefore remains unclear in the pleading how Nabi came to be in this position and what the essential terms of this alleged trust agreement are.

Statement of Defence

[16] Qadeer tells a very different story. In his statement of defence, he states that he is the registered and beneficial owner of the property and he denies that he owes any money to Nabi. He states that Nabi has never been a beneficial owner. Although Nabi did agree to purchase the property, he later learned that he did not qualify for a mortgage so he never took title to it. Qadeer does not explain how he came to be on title.

[17] Qadeer denies acting as an accommodation party or receiving $5000 or any sum from Nabi or from anyone else to do so. He also denies the existence of a trust agreement regarding the property.

[18] Qadeer denies that Nabi had anything to do with this property at any time. His pleading effectively suggests that Nabi emerged from nowhere to claim this right. He denies that Nabi was the one who found the property or that he entered into an agreement of purchase and sale to acquire it, though this agreement has now been produced in Nabi’s motion record and confirms what he had to say, at least on this point. Qadeer says nothing in his pleading about Nabi having assigned his rights in the property to him.

The Evidence

[19] The evidence and supporting documents fall short of supporting either version of events. Nabi’s story was particularly problematic as it changed shape over time while details remained sparse.

The Relationship Between the Parties – Their History

[20] Nabi claims that Qadeer was his real estate advisor. He says little more about their relationship in either of his affidavits filed in support of the motion. He says nothing about the two having had past dealings.

[21] However, when Nabi was cross examined, a colourful history emerged. He stated, for the first time, that Qadeer was not simply his real estate agent on this transaction but that they had also been 50-50 business partners in the purchase of property in 2008 or 2009. Their friend, Tahir Tanzeel (also referred to as Tanzeel Tahir at other points), was the accommodation party, to whom they planned to give $5000, but only after the property was sold.

[22] According to Nabi, they lost this property to the bank in 2011 as they were behind on the mortgage and tax payments. This would have been after the acquisition of the property in issue in this action. As Tahir was the one on the mortgage, Nabi claims that this had a very negative impact on Tahir’s credit rating.

[23] On Nabi’s evidence, it appears that there would have been an overlap of time when he was allegedly the beneficial owner of both the property in issue and the one discussed above. During these years, when Nabi was working, he held a series of low paying jobs, such as pizza maker and working in a kitchen cabinet factory. He apparently lost the second job before 2011, though he does not say when. Yet, during this time, he claims he bought not one, but two properties, though he was unable to qualify for financing of either purchase. He claims he was able to accomplish this, on both occasions, by paying someone else $5000 to assume the risk of going on the mortgage, while he retained beneficial ownership.

[24] Qadeer goes back further, stating that he met Nabi in 2005 or 2006, when they were both living in the same apartment building. Both are from Pakistan and Qadeer states he viewed Nabi as part of his community.

[25] Qadeer also mentioned this earlier purchase in his affidavit evidence, so before Nabi was cross-examined. He put a very different spin on the tale, however. According to him, he and Nabi did not enter into the earlier venture as partners, but rather, this property was acquired by Nabi and Tahir. His only role was to lend Nabi a considerable sum of money, in installments, to assist him in raising the necessary funds to close this transaction in 2008.

How and Why Nabi Acquired the Property

[26] Nabi claims that he acquired the property by agreement of purchase and sale, entered into on October 31, 2009, by power of sale from Gowlings. In fact, Gowlings was legal counsel for the Royal Bank of Canada, the legal owner of the property at the time of sale. He noted that he had purchased the earlier property from Gowlings, as well. It is odd that he was not aware that they were not the vendors.

[27] The price agreed to was $305,000. A copy of the agreement indicates that it was, in fact, Nabi, who agreed to purchase the property. He has included in his evidence a copy of the deposit cheque for $5000, dated November 4, 2009, payable by him to Gowlings. That is therefore not in dispute.

[28] Nabi claims he bought the home at that time as his family – a wife and two young children – were due to arrive in November 2010, about a year later.

How Qadeer Came to Be the Legal Owner

Nabi’s Version

Nabi claims that Qadeer acted as an “accommodation party”, such that Nabi remains as the beneficial owner of the property pursuant to a trust agreement.

[29] Nabi’s problems began before closing as he did not qualify for a mortgage. When cross-examined, he stated that he only learned of this on February 3, 2010, the day before the scheduled closing, though the closing date had been agreed to more than 3 months earlier. Nabi was not asked to explain why he waited so long to arrange financing.

[30] In view of this impediment, Nabi sought an extension of the closing date, for which he agreed to pay $2500. A copy of his cheque in that amount is also included in evidence so it is not in dispute.

[31] Nabi states that his intention was to remain as the registered owner of the property, so he asked his friend, Tahir, to act as an “accommodation party” to the transaction by obtaining the mortgage based on Tahir’s financial status. In his affidavit, Nabi stated that when Tahir also failed to qualify, Qadeer agreed to be added to the mortgage application.

[32] “Accommodation party” is a term of art associated with commercial transactions. What I gleaned after having read several definitions of the term is that it involves one person signing a commercial paper or agreement for the purpose of being surety for another, to assist that party in getting a loan or extension of credit. The accommodation party signs without any direct or indirect benefit, compensation or consideration though they are primarily responsible for paying the other party to the agreement, as they sign as a favour. They then have their rights against the person they accommodated.

[33] Nabi speaks of accommodation parties as though this was the usual way of financing a purchase. In fact, it involves a high degree of risk for the person agreeing to fill the role, as their name is on the mortgage and they are the one to whom the creditor will look for recovery. If they are unable to repay the mortgage, they can be sued. The property purchased, along with their own, can be seized and sold to cover any shortfall, and their wages can be garnisheed. They can end up bankrupt, their credit rating destroyed. Having a claim over against someone who needed the help of an accommodation party in the first place is small solace in such circumstances.

[34] As a result, one would expect this activity to be within the purview of those with funds to spare. It is difficult to understand why anyone, let alone two people, would come to Nabi’s aid and agree to essentially guarantee the payment of this mortgage for a small stipend of $5000, while Nabi retains the full rights of a full beneficial owner. It is even more difficult to understand this when nothing is reduced to writing and the terms of this agreements are not well defined.

[35] Nabi states that it was Qadeer who discouraged him from papering their trust arrangement, as he says that Qadeer claimed it could jeopardize the mortgage and difficulties could arise later if it was learned that there had been a trust agreement. He does not explain why that would be the case or why he would agree to this if he believed it could problematic. He states, however, that he trusted Qadeer, as his real estate advisor, without mentioning that, on his version of events, they had already done a deal together in 2008.

[36] To the extent that there is any validity to this version of events, Nabi appears to have been of the view that there was something nefarious about what he was doing – he states that Qadeer effectively made it clear that what they were doing was circumventing the system and that it could come back to jeopardize the mortgage if this arrangement was later discovered. It was also the second time, according to Nabi’s own evidence, that he used an accommodation party. If that was the case, why would he not have asked Qadeer more questions about what he feared could occur and why?

[37] When cross-examined, Nabi’s evidence waivered with respect to Tahir’s ability to help him as an accommodation party. In his affidavit, he said that that Tahir advised he was planning to leave Canada so Qadeer agreed to be the sole accommodation party, in return for payment to him of the sum of $5000. As shown below, this was one of three positions taken by Nabi on this point.

[38] A significant issue in this version of events is why Qadeer would have done this. Why would he have agreed to assume the risk of paying off a mortgage for a sum of only $5000, putting his own property and possessions in jeopardy, risking his income and possibly, his livelihood? As a real estate agent, this is something he likely would have understood.

[39] Although Nabi bases his claim on the principles of trust law, he does not use that term in his evidence or discuss the terms of this trust or of the accommodation agreement.

Qadeer’s Version

Nabi could not obtain financing to complete the sale, so rather than lose his deposit and other expenses, he assigned the agreement of purchase and sale to Qadeer, who completed the transaction, thereby becoming both the legal and beneficial owner of the property. Amounts he had already paid towards the property were credited against the debt he owed Qadeer.

[40] Qadeer begins by stating that the property in issue is now his family home. He is unequivocal about having bought this property himself and having always been the registered owner. He is equally unequivocal about Nabi having no beneficial rights to the property.

[41] As far as Qadeer is aware, Nabi entered into an agreement of purchase and sale with respect to the property as Nabi asserts, with a closing date of February 4, 2010. At that time, Qadeer states that he was acting as Nabi’s real estate agent, which remains his occupation today. Nabi apparently paid a $5000 deposit to Gowlings, who acted for the vendor bank. Qadeer agreed that Nabi learned that he did not qualify for a mortgage on the eve of the original closing date and that he asked his friend, Tahir, to assist, but that, he too, did not qualify.

[42] When Nabi learned that he could not obtain a mortgage, he sought and was granted an extension of the closing date to give him time to sort out the financing issue.

[43] At paragraph 14 of his affidavit, Qadeer introduces a subject not discussed in his pleadings. He states:

In fact, the Agreement of Purchase and Sale for the Property was assigned to me by Mr. Nabi… ..In or about February 2010, Mr. Nabi asked to assign the Agreement of Purchase and Sale to me, because he did not want to lose his deposit.

[44] Although Qadeer was and remains a practicing real estate agent, this arrangement was not papered and this omission has not been explained, nor is this assignment agreement mentioned in his statement of defence.

[45] According to Qadeer, Nabi wanted to assign the agreement of purchase and sale to him but he did not want to lose his deposit. As Nabi already owed him money they agreed to apply the $5000 deposit and the $2500 paid by Nabi for the extension of the closing to his debt to Qadeer. No mention is made of the further payment of $2500 possibly advanced by Nabi for the second closing extension, which Nabi refered to when cross-examined.

[46] According to Qadeer, between June 2008 and May 2010, Nabi asked him many times to loan him money. The next six pages of Qadeer’s affidavit are filled with details of the amounts loaned and the reasons for each.

[47] By way of example, Qadeer states he gave Nabi $6000 cash in June 2008 because he was a member of his community and because Qadeer had started to work as a real estate agent, so he assisted Nabi in hope of future referrals. He then says he transferred $13,000 to Nabi later that month, so that Nabi and Tahir could buy a house together. He concedes that the money was transferred to Tahir’s account and says nothing about whether the house was purchased.

[48] According to Nabi it apparently was, but Nabi claims that Qadeer was his partner in this venture, and that Tahir was only an accommodation party. Qadeer’s evidence as to who was in this partnership is therefore in direct conflict with what Nabi said. Tahir has not been examined as a non-party.

[49] Yet again in June, Qadeer says he loaned Nabi a further $3000 to close the transaction, by transferring the money to Tahir’s account. None of the loans allegedly made to Nabi and referred to above are supported by any form of documentation nor is it clear if Nabi or Tahir, or both of them, actually owe the money. As Nabi did not deliver a Reply affidavit, these assertions stand unchallenged, though they remain subject to court scrutiny.

[50] On August 18, 2008 Qadeer claims Nabi asked for $5000 and that amount was transferred from his wife’s account to Nabi. While a page from the bank statement does show that a $5000 transfer was made, it does not indicate to whom it was made so it of little assistance.

[51] In fact, to the extent that there is any evidence of any of these payments having been made to Nabi, it consists of Qadeer or his wife’s bank statements, which simply show transfers of money out of those accounts. There is no reference to whom they were made and no other documentation to reveal that information. It does not appear that Qadeer sought production of Nabi’s bank statements for the same period to show that the money actually went to him.

[52] According to Qadeer, he advanced loans totaling $42,250 to Nabi. All of these advances occurred before Nabi entered in to this agreement of purchase and sale so the entire debt was outstanding when he agreed to buy the property.

[53] As Qadeer relates events, Nabi was often in need of money, and, in many cases, relatively large sums. This raises an obvious question: as his creditor, Qadeer was aware that Nabi was in debt. Yet, he acted as his real estate agent for the purpose of entering into an agreement of purchase and sale to purchase a second property.

[54] It is difficult to understand why Qadeer was content to sit back and watch his debtor acquire further debt before first reimbursing him in full. There is no mention in Qadeer’s evidence as to whether he charged interest on these loans; no documentary evidence to support that they were, in fact, advanced to Nabi; and no indication as to what the terms for repayment consisted of.

[55] According to Qadeer, none of this debt was repaid until after Nabi entered into this agreement. He claimed the two men arrived at the following arrangement, which involved Nabi:

• paying $20,000 to Gowlings for closing costs (although the evidence shows that those costs were less than $10,000 and in part, repaid to Nabi);
• sometimes paying the utilities costs on the property; and
• acting as Qadeer’s agent to pick up rent cheques, saving Qadeer time.

[56] It is unclear how much Nabi was expected to pay and how much of that has actually been paid by Nabi towards those utility costs. It is also unclear how much credit against the debt he would be given for acting as Qadeer’s agent and for what period of time. The state of the accounting between these two men at present is not discussed by either party.

[57] I note that there is really no documentary support for any of these assertions that reliably reference the payments referred to Nabi. Qadeer states that proof of a loan of $8750 made to Nabi in August 2008 is reflected in his wife’s bank statement for that period. All that statement shows is that a cheque in that amount was cashed on August 29, 2008. Qadeer claims he bought Nabi’s plane tickets on his TD VISA card. Again the statement reflects a charge of $984 dollars in the time frame Qadeer suggests, but it is not even clear that an airline ticket was bought, let alone for whom it was purchased.

[58] Qadeer also claims that Nabi repaid $10,000 of the outstanding amount on May 12, 2009 and again, he points to a bank statement at tab I as proof, but there is no statement, in fact, there is no document at all behind that tab I. There are no cancelled cheques or any other form of documentation that actually supports the assertion that these alleged loans were made.

[59] Qadeer has demonstrated that the mortgage was taken out in his name and monthly statements were sent to him at the address of the property in issue. The mortgage statements show that the monthly payments, including taxes, came to $1348.61 and that the mortgage was paid out in full on March 17, 2014.

[60] In essence, while Nabi is trying to show that he paid monies to Qadeer, the legal owner, to cover the odd utility, Qadeer agrees that some payment of that nature were made but he claims that they were intended to cover Nabi’s outstanding debt to him and have nothing to do payments towards the property.

[61] Although bank statements were produced to show that Qadeer also paid all utilities and insurance for the property, his counsel did not take me through them during the hearing. On reviewing them afterwards, I noted that the bank statements were not in chronological order so were somewhat difficult to piece together but what is clear is that the statements produced start from the period March 20, 2014, and run into 2016. All are therefore from the period after Qadeer had moved into the property. No statements were produced for the period October 2009 – March 2014, though it was April 2014 when Nabi asked to have the property transferred to him. Instead, a handful of annual and semi-annual summaries were produced, but they only go back to January 2011. There are therefore no documents from either party to indicate who paid this mortgage or how it was paid before this time frame.

[62] Qadeer has produced the closing package. One document, the “direction re- title” stands out. Pursuant to it, on February 25, 2010, Nabi directed and authorized the Royal Bank and Gowlings to engross the deed of transfer of the property to Qadeer, noting that he confirm(s) that Tanzeel Tahir had gone back to his home country due to some unavoidable emergency therefore I hereby confirm and authorise that AMAR QADEER will be receiving the mortgage on his name to engross the transfer/deed and mortgage.

[63] This document is puzzling as it suggests not only that Tahir had agreed to be the accommodation party but that he had no difficulty qualifying for the mortgage. Instead, as he was going to be away, Qadeer stepped in. This conflicts with one version of Nabi’s evidence which suggests that Tahir’s application for a mortgage was not accepted as the previous transaction in which he had acted as accommodation party for Nabi and Qadeer had failed. It also conflicts with Qadeer’s evidence that Tahir did not qualify for the mortgage and that is why he stepped in.

[64] While this also lends credence to Nabi’s version of events, to the effect that, at first, Tahir was going to be the accommodation party, it remains unclear if Qadeer stepped in as accommodation party when Tahir was unable to assist or if took an assignment of the agreement of purchase and sale at that time, to help Nabi salvage what he had invested to-date. This document is included in a bundle of others and was not discussed by Qadeer in his affidavit or by his counsel in oral submissions.

How Does Tahir Fit Into This

[65] Although Tahir’s ultimate role has no bearing on the outcome of this motion, I raise it as Nabi and Qadeer tell extremely different stories about his involvement in their affairs, while Nabi’s stories are not even consistent within themselves.

[66] Qadeer injects Tahir into this saga well before these events, as he claims that Nabi and Tahir were partners in connection with the purchase of a property in 2008. The reason Qadeer brings this up revolves around his allegation that he made repeated loans to Nabi from the time he got involved with this purchase, claiming that he loaned him the money he needed to close this earlier transaction.

[67] As Nabi tells the story, it was he and Qadeer who were the partners for this 2008 acquisition, while Tahir agreed to be their “accommodation party” in exchange for payment of $5000 after they sold the property. According to Nabi, they had been unable to meet the mortgage payments and lost the property to the bank in 2011. He claims this damaged Tahir’s credit rating. He says nothing about his own but it is clear he was unable to obtain a mortgage in his name and ultimately tried to use his wife’s name for this purpose.

[68] At least twice during his cross-examination, he indicated that this was the reason Tahir could not act as his accommodation party with respect to the acquisition of the property in issue, seemingly oblivious to the fact that the purchase of the property in issue (2010) preceded the default on the earlier mortgage by about a year (2011). This version of events alternated with what Nabi had initially said in his affidavit evidence, to the effect that Tahir could not assist as accommodation party as he had left the country.

[69] What this evidence does suggest is that Nabi is not a reliable witness, either because he has a poor memory or because he has deliberately misrepresented events. Nabi was assisted by an interpreter during his cross-examination so there is no question about his having understood the questions or his ability to respond.

What Does Nabi Claim to Have Paid

[70] This is really the most important aspect of the motion, yet Nabi’s evidence regarding what he says he paid is murky and hard to follow. In large part, he has failed to demonstrate with supporting documents what he alleges.

[71] Nabi claims in his pleading and in his evidence that he made all mortgage payments and that he paid taxes; insurance; maintenance; repairs and utilities associated with the property. However, he has provided no documentary proof of any of this in his first affidavit.

[72] In his second affidavit Nabi endeavoured to show that he did make some financial contribution toward carrying this property, but again, what he claims the documents represent is not necessarily the case. He states that on April 13, 2011, more than two years after he allegedly acquired the property, an outstanding hydro bill amounting to $1799.91 needed to be paid and that his wife, who had been in the country for all of five months at that time, paid it in its entirety.

[73] This is an astonishingly high amount of electricity to have been used in a one-floor unit occupied by two people. As it turns out, the bill, addressed to Qadeer, represents a running account rather than the last month’s usage. Nabi has attached his wife’s bank statement, showing payment of an electricity bill in this amount, but not until June 27, 2011, so two and a half months later. There is nothing about the payment that makes it clear that this amount was paid towards this bill aside from the amount.

[74] If Nabi was, in fact, responsible for paying this account as he says he was, he was paying it in arrears. According to this statement of account, the total amount was due on April 13, 2011. By the time it was paid, the bill would have been even higher. None of this is explained yet this is the only Hydro bill provided. If Nabi had paid for all of the Hydro, why did he not provide copies of the other bills?

[75] On the other hand, Qadeer stated that part of Nabi’s repayment program was to pay some utility bills. Might this have been one of them? It does not appear that Nabi was asked if there were other bills, nor did he volunteer that information. The very limited documentary support to show that Nabi paid for utilities and more undermines his claim.

[76] The subject of how the mortgage was paid also produced a series of statements that were not consistent within themselves and difficult to follow. First, Nabi said that each month, he picked up the rent cheque made out to Qadeer. He claims he gave these cheques and the difference of more than $700 in cash to Qadeer every month so Qadeer could pay the mortgage. Nabi failed to provide any documentary evidence, such as bank records showing the withdrawals in that amount on a monthly basis, to demonstrate that he paid cash. He says nothing about another source for this cash.

[77] A bit later, however, Nabi talked about how he gave Qadeer his personal cheques for the rent. If that was the case, he could have easily obtained copies of them from his bank. But again, there is a discrepancy in Nabi’s evidence- did he pay by cash or cheque?

[78] Nabi claims that the taxes were included in mortgage payments and a review of the mortgage statements produced by Qadeer appears to confirm that. However, there is no supporting documentation to show that Nabi regularly paid insurance, any utility bills aside from the Hydro bill referred to above or for the upkeep of the property.

[79] Nabi claims that after his wife arrived in Canada in November 2010, she took over making all the mortgage payments, inclusive of taxes, of $1428 monthly. He states the portion paid towards the mortgage was $981.22. He then appended a cheque for $1428 to his affidavit, but this time states that insurance was also included in the payment.

[80] However, as noted on the statement of adjustments, the taxes on the property were only $250 per month. When that number is combined with $981.22 for the mortgage, in the absence of any evidence to indicate that either payment had increased, they total only $1231. For those figures to add up, insurance premiums would have to have been $1428 - $1231, or $197 per month. That translates to $2364 per year.

[81] There is no evidence anywhere in the record to indicate how much insurance was placed on this house that was purchased for only $305,000 and rented out for $700 per month inclusive of utilities. It had an unfinished basement and only the main floor was occupied. Based on these numbers, Nabi is effectively claiming that he was paying insurance premiums of $197 per month, or $2364 per year. However, when asked about this on cross-examination, Nabi stated the monthly amount was only $60.

[82] A premium of $60 per month makes sense as the coverage would have been only for building replacement and liability - a landlord does not insure his tenants’ contents.

[83] It is therefore difficult to accept that this cheque reflects what Nabi asserts is the case. Nabi also maintained that both taxes and insurance were included in the mortgage, but he was unable to show that he paid for any of this. Further, in the memo field of the cheque, all that has been written is March 2011, so that neither the amount on the cheque nor anything on it appears to relate to the mortgage, taxes or insurance.

[84] Finally, the banking documents produced my Qadeer make it clear that payment of insurance premiums was not included with the mortgage payment. According to the bank, however, they collected the tax component along with the mortgage, but had nothing to do with payment of insurance premiums. It is therefore not clear that this cheque for $1428 is what Nabi claims it is.

[85] Nabi also fails to say how his wife, who arrived in the country only four months earlier, was able to do this. How did she have this amount of money available to put towards this property on a monthly basis, when the family, including their two young children, were not even occupying the premises? Presumably they had housing costs elsewhere.

[86] Nabi claims he provided Qadeer with a cheque for $20,000 dated March 3, 2010, to facilitate the completion of the transaction. A copy of that cheque was also included in the record. These are among the very few pieces of paper that Nabi has tendered as proof that he has any rights in this property. Together, the documents represent a total of $27,500 advanced by Nabi, which he relies on to support his claim. However, he then goes on to explain that some of the $20,000 was returned to him.

[87] In his second affidavit, Nabi states that he retained the services of Naveed Butt, but he does not indicate for what purpose. From what follows, it appears this involved the acquisition of the property. It appears that Butts sent the February 4, 2010 statement of adjustments to Nabi, not surprising, as this document was created before he failed to qualify for financing. This document shows taxes were $224.54 per month and the balance due on closing was expected to be $294,775.46.

[88] However, although the statement of adjustments shows Nabi as purchaser, the trust ledger statement created on March 4, 2010 names and was sent to Qadeer, only. The taxes for the property are shown as $224.54 per month on the statement of adjustments.

[89] Based on the trust ledger statement provided by Butt, there was a balance due of $298,282.46 on closing. $288,636.61 was received from the first mortgage, Home Trust, which left a balance due of approximately $9,646. Nabi claims that Qadeer used the $20,000 he had advanced to him to pay this sum.

[90] As I read it, the ledger was not correct. The only amounts shown as outstanding after the mortgage that are listed on it are Ontario Land Transfer Tax of $1050; legal fees of $2079 and payment to the title guarantee company of $378. These three amounts total $3507, far short of the $9646 figure. Even if Toronto Land Transfer Tax of $2775 is added, (which does not show on the right side of the ledger) that still does not take the number to the $9645.85.

[91] Although no supporting document has been provided for the $5000 that Nabi says he advanced to Qadeer as payment for acting as an accommodation party, Nabi claims that is because the two agreed that this amount would come from the $20,000 that Nabi advanced to him closing.

[92] Based on Nabi’s numbers, Qadeer used $9645 for the closing and retained $5000 as his accommodation fee. These two numbers total $14645. However, Nabi says that $6300 was returned to him. On his evidence, only $5355 of the $20,000 would have remained. The numbers literally do not add up, as is the case with several of pieces of documentary evidence that Nabi has produced to support his assertion of having a beneficial interest in this property.

[93] Nabi also says he was asked to send $1000 to Qadeer’s family in Pakistan but that as he was unable to do so, he returned the cash to Qadeer. None of this is clear. Was this on top of the $5000 “accommodation” payment? Was it money given to him by Qadeer to pay forward? Why was he unable to do so? Why is it relevant to this proceeding in any event? This seems to support Qadeer’s version of events, to the effect that Nabi owed him money.

[94] Nabi summarises this section of his evidence by saying that he is the beneficial owner of the property, claiming that he and his wife have together been in possession of the property since closing. However, this statement conflicts with Nabi’s other evidence. Nabi’s wife only arrived in Canada about a year after the property was purchased. As she was not even resident in Canada for the first year after the property was acquired, how could she have been in possession of it?

[95] It is also clear that the property was tenanted from the time it was purchased. Nabi has never actually lived there. None of this is explained in the context of Nabi’s comments about possession. In fact, he has never been in possession of the property, in the sense of having occupied it. His evidence gives a very different impression.

What Does Qadeer Claim to Have Paid

[96] Qadeer did not go into a lengthy discussion about what he paid, having claimed to be the rightful owner of the property. He did say that the rent cheques were made out to him and that he put them towards the mortgage payments. He also appended bank statements to his affidavit, claiming that they demonstrated he was never in arrears in making mortgage payments. As already noted, those statements only covered more recent years.

[97] Neither party has actually shown by way of documentary proof that he has made financial contributions towards this property, aside from the mortgage and then, for only part of the time in issue.

The Tenants – the Silvers and, According to Nabi, the Qadeers

[98] Again, we have divergent stories. While both Nabi and Qadeer confirm that the house was tenanted when purchased, they agree on little else.

[99] In terms of the tenants, both Nabi and Qadeer confirmed the house was rented by the Silvers when it was acquired, though Nabi claims his purpose in making this purchase was to have a home for his family to live in when they arrived. It is not clear why he bought it at that time, about a year before they were scheduled to arrive and when he could not qualify for a mortgage. According to Nabi, he had already co-purchased another property before this with Qadeer. Why not have his family live there?

[100] The rent was $700 per month, including utilities, which is a meagre sum, indeed, in the Toronto rental market. Further, it appears this amount covered only a little more than half the mortgage. Nabi claims that he was obliged to assume the tenancy, though he appears to contradict that on cross-examination. Further, he does not explain 1) why he was so obliged; 2) why he would have bought the property in those circumstances, particularly with such a low rent; 3) how he planned to pay the mortgage if the rent did not come close to covering more of it, particularly as he already owned another property; 4) why he bought a tenanted property when he needed an accommodation party to qualify for this mortgage.

[101] A new lease was signed in March 2010. At that time, Nabi could have refused to renew the lease or could have sought to increase the rent. Instead, he signed the lease in the capacity of witness. Qadeer, not Nabi, is shown as the landlord. The entire main floor of the house, the only habitable part of it, was again rented out for only $700 per month, inclusive of utilities.

[102] When cross-examined, Nabi says only he and the tenants had keys to the house and that Qadeer did not, adding that he was at the house “almost” a couple of times every month. This appears to have included Nabi’s trips to pick up the rent.

[103] Nabi does not explain why he renewed the lease in March 2010 shortly before his family arrived. This is inconsistent with his evidence on cross-examination, where he says from the first, he made it clear to the tenant that he bought this house for his family. On cross-examination, however, he advised that the tenants moved out in July 2012 because he wanted to move in with his family at that time. However, Qadeer than asked if he could rent the place at that time and Nabi surprisingly agreed, despite what he claimed were his own plans. His only stipulation was that the rent paid by Qadeer should be equivalent to the mortgage plus taxes and insurance, far more than what the previous tenants had been paying. Qadeer apparently agreed.

[104] When pressed during cross-examination as to why he agreed to let Qadeer live in the house when he had bought it for his own, Nabi indicated that his family had come, as stated, but then left again. It was unclear why they had left or for how long, but on his evidence, they did return.

[105] At the end of his affidavit, Qadeer raised a new subject area regarding the tenants, noting that he mediated with them in June 2012. He attaches the affidavit of Rajesh Shah, dated February 8, 2016 as an exhibit. Shah is a paralegal and he states that he represented Qadeer before the Landlord and Tenant Board with respect to a residential tenancy mediation in June 2012. He says he was retained by Qadeer regarding the matter in May or June 2012 and that Qadeer indicated that he was the owner.

[106] Qadeer attended the mediation Shah. Nabi did not. A mediation Agreement was entered into with the tenants at that time. The preamble to the agreement notes that the landlord confirmed that his family would be moving into the unit and that the tenants agreed to vacate by September 2, 2012.

[107] The tenants to this agreement were Jodi Polan Silver and Robert Silver. There is no reference to Nabi anywhere in this document. When cross-examined about this, Nabi essentially said he had to stay out of it as Qadeer was the legal owner. There was no suggestion that Nabi offered or agreed to pay for the paralegal or to compensate Qadeer for his time participating in this event.

[108] Nabi also seems to have been unaware of this resolution regarding termination of this tenancy. He says nothing about a mediation or any difficulties getting the tenants to leave and said they had talked about it many times, but he was letting them take time to find a suitable place. In the end he says they left in July 2012, but this appears to have been the result of what took place at the mediation and had nothing to do with Nabi.

[109] As Qadeer moved in in July 2012 Nabi maintains then it was up to Qadeer to now pay everything – mortgage and utilities, totalling more than double what the previous tenants had paid.

[110] After his family had returned in April 2014, Nabi asked Qadeer to transfer the property to his wife so that they could sell it but he states that Qadeer refused unless Nabi agreed to give him 50% of the net proceeds. This action was started in June 2014 as a result.

[111] Nabi wanted the property in his wife’s name so they could sell it, as he and his wife had bought another property in February 2014 as by then, she did qualify for a mortgage.

[112] Nabi included in his evidence an unsworn letter from one of the tenants (Robert Silver) dated July 3, 2014, written more than two years after they had moved out. The tenant claims he was told by Nabi that Qadeer had purchased the house for him as he lacked the necessary credit to do so on his own. Nabi also told him that his plan was to renovate the basement, so the tenants could live there, after he took over the main floor. The tenant confirmed that Nabi stored personal items in the basement and collected the rent unless he was away.

[113] The tenant does not say that any of this was ever confirmed by Qadeer, though the latter was his named landlord on the lease and he says nothing about having appeared before the Board with Qadeer, not Nabi. As his evidence is contained in a letter, rather than a sworn affidavit, the court must be cautious about how much weight to accord to it.

Evidentiary Gaps and Conflicts

[114] One of the major problems with Nabi’s evidence is that his responses on cross-examination do not mirror what he said in the affidavits he submitted in support of this motion.

[115] A second problem is that, when cross-examined, he opened up a new subject, revealing that he, his friend Tahir and Qadeer had all been business partners before the acquisition of the property is issue. None of this evidence is contained in the supporting affidavits, yet he now relies on the outcome of their previous transaction together to explain some of what occurred here.

[116] A third problem is that, although Nabi pleaded that he paid the mortgage, insurance, taxes and utility expenses for the property, there is very little in writing to confirm any of what Nabi says and it is not obvious that the two documents he has produced and relies on actually represent what he says they do.

[117] In summary,

a) The trust agreement is oral, only, and its existence is contested by Qadeer;

b) there is no direct evidence from Nabi as to the terms of this alleged oral trust agreement, aside from the following two: he paid Qadeer $5000 to assume the responsibilities of being an “accommodation party” and Qadeer agreed to sign the property over to him as and when he asked for it.

c) Aside from copies of two cheques from Nabi early on to cover the deposit and one extension agreement, both written before he was aware that he had not been approved for a mortgage, there is no reliable evidence from Nabi that he was paying for the mortgage, taxes, insurance, utilities or upkeep of the premises.

d) The only supporting documents provided by Nabi relate to one payment of an overdue electricity bill and one payment of what he alleged was intended to cover a month of mortgage, tax and insurance premium payments. When these three numbers are totalled, however, the sum does not correlate with the total on the document that Nabi relies on to prove that this payment was made. The document therefore does not appear to be referable to this payment.

e) After Qadeer moved into the house in July 2012, Nabi no longer paid Qadeer anything towards the property.

[118] That is all Nabi has to show to support his claim that he has been the beneficial owner of the property since 2009.

[119] Nabi also admitted on cross-examination that he owed money to Qadeer at the time he the transaction closed. Then he changed his position and claimed that was not the case.

The Law, Analysis and Conclusion

[120] Nabi has essentially ignored the Statute of Frauds, RSO 1990, c. S.19 in his materials. Although Qadeer has included a copy of the statute in his brief of authorities, he has filed no factum and did not indicate in oral submissions which sections he relied on. Both parties filed case law, most of which was of minimal assistance in the context of the issues raised by this factual matrix. I have therefore had to look beyond what both counsel filed.

[121] The starting point is Section 103 of the Courts of Justice Act, which provides for the registration of a certificate of pending litigation (CPL). It is clear from that section that the primary requirement a party must demonstrate when seeking leave to register a CPL is a reasonable claim to an interest in land. The evidentiary threshold is whether the facts have raised a triable issue regarding the interest in land.

[122] A critical factor in determining whether a triable issue has been raised involves whether the agreement allegedly dealing with the land in issue has been reduced to writing. If it has been, the issue is far easier to deal with. If that is not the case, Sections 9 and 10 of the Act apply. Section 9 reads as follows:

Subject to section 10, all declarations or creations of trusts or confidences of any lands, tenements or hereditaments shall be manifested and proved by a writing signed by the party who by law enabled to declare such trust, or by his or her last will in writing, or else they are void and of no effect.

[123] Section 10 then states:

Where a conveyance is made of lands or tenements by which a trust or confidence arises or results by implication or construction of law, or is transferred or extinguished by act or operation of law, then and in very such case the trust or confidence is of the like force and effect as it would have been if this Act had not been passed.

[124] In the case at Bar, it is Qadeer who ended up with legal title to the property, though Nabi was the one who had agreed to purchase it. Qadeer says the agreement was assigned to him. Nabi claims Qadeer holds legal title to the property as trustee for him. According to the Statute of Frauds, in view of the absence of anything in writing signed by Qadeer to that effect, this arrangement is void and of no effect unless the trust arises by implication or construction of law.

[125] The cases that deal with this exception are based on a plaintiff’s ability to show part performance and are based in equity. The cases generally involve plaintiffs who performed work on or directed towards a property or contributed to its development in some way, in anticipation of getting their promised and fair share. Some of the cases deal with oral joint venture agreements, where one partner contributed work only to a project involving land and he then sought what the partners had agreed he would earn in terms of a share of the land.

[126] The part performance doctrine has emerged to protect parties in these kinds of situations from the potentially harsh impact of the Statute of Frauds, where to impose its terms would be unjust in the circumstances. In other words, the law recognizes the possibility that the Statute of Frauds can, itself, become an instrument of fraud if not carefully applied.

[127] Thus, in Homebuilder Inc. v. Man-Sonic Industries Inc., 1987 CarswellOnt 499, the court found a triable issue in the context of an alleged constructive trust based on the plaintiff having contributed sketches of the homes to be built.

[128] There is a considerable body of case law dealing with whether the acts performed have to be directly referable to the land. In view of the apparent lack of any activity of this nature in this case, I need not consider that case law as this is not an issue here.

[129] Even if a triable issue is found to exist, that does not end the inquiry, as the court must still review and balance the equities between the parties, based on what has come to be described as the Dhunna factors (see 572383 Ontario Inc. v. Dhunna, 2987 CarswellOnt 551).

[130] In Nabizadeh v. Manifar [2015] OJ No. 4590, the master dealt with a claim for a CPL by a real estate agent, who claimed the purchase of the property was a joint venture with the defendant, as the two had agreed to acquire and redevelop the property together. There was nothing in writing, however, to support the existence of the agreement.

[131] The evidence demonstrated that the agent had gone well beyond the role of an agent, as he had been involved to some extent in dealing with the contractors, suppliers, municipal authorities and professional consultants regarding the redevelopment of the property. These activities were all considered to have been consistent with the actions of someone with an ownership interest in the property. They were also consistent with the plaintiff’s partial performance of his obligations under the agreement, the terms of which, on his evidence, had been discussed and agreed to.

[132] Of critical importance was the evidence of a non-party witness, who allegedly overheard discussions between the two parties as to the alleged joint venture agreement. All of this led the master to conclude that a triable issue had been raised.

[133] However, that did not determine the ultimate conclusion reached, as he master went on to consider the Dunna factors, and found there was no evidence filed regarding the uniqueness of the property. That, and the fact that the property had been purchased for redevelopment suggested that that this was simply an economic investment, made with the intention of earning a profit. As damages could be easily calculated, that seemed to be an adequate remedy in the circumstances. In that case, damages had been claimed alternatively in the statement of claim.

[134] In terms of the balance of convenience, the defendant was not a shell corporation so security to ensure that the land would be there at the end of the day was not required. The defendant was also employed in Ontario at that time. In any event, the master held that a CPL is not intended to be an instrument to secure a claim for damages. On balance, as the equities favoured the defendant, the motion was dismissed.

[135] Thus, even where the plaintiff can establish a plausible claim to an interest in land, that may not suffice to give rise to a CPL being granted.

[136] The law is also clear that the interest in land need only be a plausible one, not one likely to succeed at trial.

[137] Approaching the facts of this case on the basis of the authorities I am unable to say that the plaintiff has demonstrated that he has a plausible basis for asserting an interest in land. It is not enough, at this stage, for him to simply assert that he paid for everything along the way until Qadeer moved in. It was incumbent on him to demonstrate that he made at least some of the payments he relies on. The only payments he has shown that he made are those made before title was taken by Qadeer.

[138] I have considered the following factors to determine that Nabi has failed to establish that he has any current interest in the land:

• Though Nabi entered into the agreement of purchase and sale to buy the property, he waited until the eve of closing to try to get his funding in place and then was unable to do so, despite two extensions of the closing date;
• Nabi says he first asked his friend, Tahir, to be his accommodation party and he then gave two different reasons for why Tahir was unable to do so. In the affidavit evidence, he claimed Tahir was not in Canada when the transaction was scheduled to close. When cross-examined, however, he spun a tale of a previous business deal gone bad, one in which Tahir had allegedly agreed to be an accommodation party for him and Qadeer. He claimed it destroyed Tahir’s credit rating when the venture failed so that is why he could not help this time;
• What Nabi missed was that the date he gave for the collapse of the enterprise was after the closing date for this acquisition. As a result, Tahir’s credit rating, in the context of the earlier venture, could not have been a factor. Nabi reverted to his original story, then settled on both reasons for Tahir having stepped away from the venture;
• Nabi made no mention of this earlier venture in his filed evidence and only referred to it in cross-examination after having read Qadeer’s filed evidence. Qadeer claimed that it was Nabi and Tahir who were the partners going into the first deal. Nabi filed no reply evidence to dispute that;
• According to Nabi, Qadeer was only asked to be the accommodation party this time out when Tahir was not able to do so, for payment of $5000. It is difficult to understand why a working real estate agent in Toronto would run the risk of going on title and on a mortgage for a return of only $5000, in view of the risk involved. Nabi does not explain this;
• There is nothing at all in writing between these parties;
• Nabi failed to set out the terms of this alleged trust agreement, aside from indicating that he has paid (not that he was required to pay) for everything, which he then failed to prove;
• Nabi has never lived in the house. Qadeer and his family have lived there since 2012, after a hearing at the Landlord and Tenant Board, which Qadeer, but not Nabi, attended, for the purpose of taking back the property for occupancy by his family;
• Although Nabi maintains in his pleading and in his evidence, in a general way, that he paid for the mortgage, taxes and insurance of the property from the time it was acquired until Qadeer moved in in 2012, he has produced only two documents to show that he has paid anything towards the property since the closing. Neither of these documents, however, is easily reconciled with the bills he says they covered;
• Nabi’s information as to what he paid for insurance was not accurate and made no sense. As I noted, the numbers did not add up;
• Nabi was under the misimpression that he had purchased this property and the prior one from Gowlings, who were actually legal counsel acting for a bank under power of sale;
• All post-closing documentation was sent to Qadeer, only;
• Nabi paid nothing at all towards the property from the time Qadeer took up occupancy. He claimed that was because Qadeer was living there so it was up to him to cover mortgage, taxes and insurance – amounting to considerably more than the previous tenant had paid;
• Qadeer claims that Nabi owed him a large sum of money at the time the property was acquired. According to him, Nabi’s payments of the deposit that accompanied the agreement of purchase and sale, the extension agreement and closing costs were credited towards this debt. If this was the case (which is not refuted in Reply evidence from Nabi) why would Qadeer get involved in a financial arrangement with Nabi, without first ensuring that the debt he was owed was fully paid?;
• Nabi claimed his wife took over the mortgage payments after she arrived in November 2010, but he fails to explain how she had funds with which to do this. She was newly arrived in the country with two young children. There is no suggestion that she began working here as soon as she arrived and earned enough to cover these costs;
• Nabi claims he asked to have the property transferred to his wife’s name in 2014 as they had already bought another property and wanted to sell this one. Again, this is not explained. Why would Nabi have expected Qadeer to pay the mortgage, taxes and insurance on the property for two years if he didn’t believe he had some rights in the property? Why would Nabi buy another property without first talking to Qadeer about taking over this one if Nabi had rights in this property?
• Only Qadeer was involved in the proceedings before the Landlord and Tenant Board.

[139] Aside from having agreed to purchase the property, there is no indication that Nabi did much of anything towards the acquisition or upkeep of this property, the home that Qadeer has been living in with his family since 2014.

[140] While the onus lies on the responding party to refute the existence of a triable issue (see GPI Greenfield Pioneer Inc. v. Moore, 2002 CarswellOnt 219), there must be something more than an assertion by a plaintiff that property is being held in trust for him before this reverse onus kicks in. In the absence of a written agreement or any suggestion as to the terms of an oral one, or any documentary evidence to support Nabi’s bald assertions as to what he paid, I find no triable issue has been raised for Qadeer to refute.

[141] To put it another way, in view of how little Nabi appears to have done in regards to the property, it would be dangerous to allow his bald assertion to put Qadeer in the position of having to explain his role in all of this. I do not believe that is what was intended in such a blatant case. This, in my view, is the kind of case the Statute of Frauds was intended to address.

[142] While Nabi has not sought damages, there is no reason why they would not be a perfectly reasonable alternative to the actual property. He, himself, claims he wanted to sell it, as he had already bought another home. It is therefore not unique. It has never been Nabi’s home while it is home to the Qadeer family.

[143] I have noted along the way the concerns I have regarding Qadeer’s evidence. I am, in fact, left with the view that neither party has been frank with the court. Far too many questions regarding important issues remain unanswered.

[144] It seems to me that, while Qadeer may have gilded the lily at times, Nabi has concocted a story which simply makes no sense on the evidence. Therefore, while I do not believe that Qadeer has been entirely candid with this court, I do not believe Nabi has put enough evidence before the court to suggest that there is a triable issue for Qadeer to refute.

[145] Further, the property is clearly not unique. Nabi wants it so he can sell it and pay for the home he has now bought for his family. In that context, he ought to have claimed damages as that would have been an adequate remedy, assuming he would have been able to establish entitlement. I am therefore satisfied that the equities favour Qadeer.

[146] Nabi has asserted a trust, but has failed to provide any supporting evidence, on paper or by way of part performance, to establish its existence. He has already bought another property and wanted this one in order to sell it. He therefore cannot get past the Statute of Frauds.

[147] For all of the above reasons, this motion is therefore dismissed.

[148] I can be spoken to if the parties are unable to agree at to costs within 30 days.

Master Joan M. Haberman