Nithiananthan v. Quash, 2016 ONSC 5161

CITATION: Nithiananthan v. Quash, 2016 ONSC5161

COURT FILE NO.: CV-15-530343

DATE: 20160906

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

YAMUNAKUMARI NITHIANANTHAN

Plaintiff

– and –

JAMES QUASH, QUINTON NATHANIEL BENNETT, HOME TRUST COMPANY and CHAD WILSON

Defendants

Todd Robinson for the Plaintiff

Jacqueline Armstrong Gates and Katherine Metcalfe, for the Defendants, James Quash and Quinton Nathaniel Bennett

HEARD: July 27, 2016

G. DOW, j

reasons FOR DECISION

1The plaintiff, Yamunakumari Nithiananthan (“Ms. Nithiananthan”) appeals the order of Master Mills released June 6, 2016 in which Ms. Nithiananthan’s motion for continuance of a certificate of pending litigation against the defendants owners, James Quash (“Mr. Quash”) and Quinton Nathaniel Bennett (“Mr. Bennett”) of a property (to be referred to as “Gaitwin Place”) now owned by them was dismissed. Master Mills also heard the defendants’ motion for Ms. Nithiananthan to post security for costs which was also dismissed and is not subject to an appeal.

Facts

Facts

2Ms. Nithiananthan was the owner of Gaitwin Place from 1997 and alleges being defrauded through improper mortgages taken out against the property by Thirukkumar Thirunavukarasu (known as “Tom Thiru”), his spouse and a numbered corporation controlled by Tom Thiru.

3Ms. Nithiananthan commenced another legal proceeding, being action number CV-10-396131 against Tom Thiru and others for fraud arising from the transfer of title to the property to one Leslie Philpotts which was allegedly orchestrated by Tom Thiru and in which Tom Thiru’s corporation, 1769656 Ontario Inc. was a registered mortgagee and commenced power of sale proceedings. This resulted in the subsequent transfer of title to the defendants, Mr. Quash and Mr. Bennett.

4Ms. Nithiananthan is seeking an order setting aside this transfer in the other action as a fraudulent conveyance. Ms. Nithiananthan also tendered evidence of concern Mr. Quash and Mr. Bennett were considering sale of the property which is contested by them. Mr. Quash and Mr. Bennett maintain the certificate of pending litigation, granted by Master Hawkins June 23, 2015 pending a determination of the matter now before me is inhibiting their ability to remortgage the property and thus raises their losing possession and title in the property.

5An action was also commenced in Newmarket, Court File No. CV-10-099429 regarding Gaitwin Place and involved power of sale proceedings with a Writ of Possession issued and executed on April 14, 2011 resulting in Ms. Nithiananthan being forcibly removed from the property after an appeal was unsuccessful and a Notice of Eviction tendered in August, 2011. As detailed in the reasons of Justice Gilmore released July 8, 2013 in the Newmarket action, this matter has a lengthy history.

6The reasons of Justice Gilmore concluded notices registered on Gaitwin Place by Ms. Nithiananthan and Mr. Philpotts under Section 71 of the Land Titles Act, R.S.O. 1990 c. L.5 were either not relevant or were improper and ought to be removed. The order was not successfully disturbed on appeal. The reasons of Justice Gilmore detail additional orders and appeals that deal with Ms. Nithiananthan’s efforts to set aside her no longer having title to Gaitwin Place.

Issue – Standard of Review

Issue – Standard of Review

7The standard of review of a Master’s decision is correctness or as described by Justice Low in the Divisional Court in Zeitoun v. Economical Insurance Group, [2008] O.J. No. 1711, at paragraph 40 “… the decision will be interfered with only if the Master made an error of law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error”.

8In this matter, Master Mill’s reasons are principally contained in the first eight paragraphs of the Master’s 22 paragraph decision, the balance dealing with the defendant’s motion for security for costs.

9The process for discharging a certificate of pending litigation is set out in section 103(6) of the Courts of Justice Act, R.S.O. 1990 c. C.43 and Rule 42.02 of the Rules of Civil Procedure. The two part legal test is summarized in paragraph 20 of the reasons of Justice D. Brown (as he then was) in York University v. Markicevic, 2013 ONSC 378 and decided by Master Mills in paragraph 3 of the reasons. The Court must consider “whether the claimant has a reasonable claim to the interest in the land” by examining the whole of the evidence. Assuming the Court concludes the first part of the test in a positive fashion, the second stage of the analysis is “to consider the equities of the case, including a wide variety of factors, which includes the nature of the claim and the harm to each of the parties if the certificate is or is not removed”.

Issue – Reasonable Claim and Lack of Reasons

Issue – Reasonable Claim and Lack of Reasons

10Ms. Nithiananthan submits that the conclusion of no reasonable claim to an interest in the land reached by the Master in paragraphs 5 and 6 of the reasons lack sufficient detail, or explanation upon which the plaintiff can discern why she was unsuccessful. I disagree. Ms. Nithiananthan has been litigating what has occurred for more than six years as indicated by the date of issue of the Newmarket action and paragraph 29 of her affidavit sworn June 15, 2015. Her affidavit before me (and Master Mills) contains 26 exhibits including the order of Justice Gilmore.

11My reading of the first of 74 paragraphs of the decision of Justice Gilmore is that Ms. Nithiananthan opposed the relief being sought before Justice Gilmore which was to “amend the land title registrar to remove certain notices registered on title against” the Gaitwin Place property. After a detailed review of the circumstances, and issues raised, Justice Gilmore concluded (in paragraph 73) that the first notice registered by Ms. Nithiananthan “is of no further relevance” and “serves only to tie up the land and restrain the plaintiff from dealing with it, more particularly, selling it”. Regarding the second notice registered by Mr. Philpotts, it appears to “have no purpose at all, other than tying up the land and it is improper that it remains registered.”

12Master Mills, at paragraph 5 of the reasons, accepts that Ms. Nithiananthan may have had a reasonable claim but, through decisions of this Court (and the Court of Appeal) it had been “conclusively determined that the property could properly be sold”. The details for this conclusion, simply stated, are in the reasons of Justice Gilmore (with reference to the reasons or decisions of Justices Healey, McEwen, Boswell and Edwards). Master Mills uses the phrase “res judicata” in the last sentence of paragraph 5 and Ms. Nithiananthan takes issue with that statement relying on the precise legal definition of the phrase being either cause of action estoppel or issue estoppel. While I would agree the use of this Latin maxim may not be completely accurate in the circumstances at hand, it does concisely repeat what Master Mills had concluded earlier in the paragraph. That is, a previous effort by Ms. Nithiananthan to give notice to the public at large that she was making a claim against the owner of Gaitwin Place about who held rightful ownership had been adjudicated on and rejected.

13Both counsel made submissions regarding the erosion of the principle that “the common law once regarded every piece of real estate to be unique” given modern real estate development. Gaitwin Place is a detached bungalow in Scarborough and in my view would seem to be a fitting example for this statement. This is not to suggest Ms. Nithiananthan cannot succeed, but rather as of this stage of the proceedings her remedy is damages as opposed to equitable relief. (paragraph 20 of the Semelhago v. Paramadedan, 1996 CanLII 209 (SCC), [1996] 2 S.C.R. 415). Further, as noted by Justice Laskin in his endorsement October 25, 2011, as part of the appeal of the order of Justice Boswell August 10, 2011, Ms. Nithiananthan was no longer living in Gaitwin Place and had “not claimed that the property has any special value to her”.

14As a result, not only is there no palpable or overriding error of law, but I would agree with the Master’s conclusion (set out in the second sentence of paragraph 5 of her decision) that Ms. Nithiananthan no longer has a reasonable claim to an interest in the subject property. I also agree with the reason given (set out in the first sentence of paragraph 5 of the decision) that is, the issue of whether Ms. Nithiananthan had a reasonable claim to an interest in the subject property has already been determined by earlier decisions of this Court and the Court of Appeal.

15I am reinforced in the conclusion by the standard for measuring the adequacy of reasons as summarized by Justice Weiler in Diamond Auto Collision Inc. v. Economical Insurance Group, 2007 ONCA 487 at paragraph 11 and the three foundations of reasons. That is to (1) explain to the losing party why she or he lost; (2) enable consideration whether to appeal; and (3) enable someone reading the decision to see whether justice was done. In my view, the succinct explanation and conclusion of Master Mills meets this test.

Issue – Equities between the parties

Issue – Equities between the parties

16This second stage of determining whether a certificate of pending litigation should be issued (or continued) was also addressed by Master Mills. It was done despite there being no requirement to do so having found Ms. Nithiananthan no longer had a claim for a legal interest in Gaitwin Place. Master Mills states same in paragraph 7 of the reasons. The lack of a requirement to deal with the second part of the legal test, in my view, explains the lack of detail beyond stating the conclusion that the equities favour the defendants and the reasons for that conclusion being to hold otherwise would “unduly impact” on the defendant’s “ability to financially deal with” the property.

17The decision made by Master Mills was within her discretion. There was no misapprehension of the evidence nor palpable or overriding error. The appeal is thus dismissed.

Costs

Costs

18Mr Quash and Mr. Bennett seek costs and submitted a Costs Outline in the amount of $20,999.36 for fees inclusive of HST and $67.12 for disbursements. Counsel for Ms. Nithiananthan had prepared two Costs Outline in the event of success, the first seeking costs of the motion before Master Mills in the amount of $30,826.01 on a partial indemnity basis and the second for the appeal in the amount of $14,692.26 for fees inclusive of HST on a partial indemnity basis. Counsel for Ms. Nithiananthan submitted the claim by Mr. Quash and Mr. Bennett was too high and their claim for costs should be reduced to $12,500, presumably inclusive of fees, HST and disbursements.

19I would agree the claim for costs by counsel for Mr. Quash and Mr. Bennett are high in responding to this appeal. However, I have difficulty with fixing their costs in an amount less than what Ms. Nithiananthan was claiming in the circumstances and thus award Mr. Quash and Mr. Bennett the costs in the amount of $14,692.26 for fees inclusive of HST plus their disbursements in the amount of $67.12 for a total of $14,759.38 payable within 90 days.