COURT FILE NO.: CV-14-5800-00 DATE: 2016 10 13
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Sohan Singh v. Parul Sagar, Shiv Dev Kumar and Subhadra Sharma
BEFORE: Bloom, J.
COUNSEL: Patrick Di Monte for the Plaintiff, the Moving Party, Sohan Singh J.Y. Ortega for the Defendant, Subhadra Sharma The Defendant, Shiv Dev Kumar, in person The Defendant, Parul Sagar, did not appear
HEARD: October 11, 2016
E N D O R S E M E N T
I. INTRODUCTION
[1] The Plaintiff moves for summary judgement. The specific remedies sought on this motion are an order for sale of 18 Landscape Drive in Brampton, Ontario, or alternatively a finding that the title to the property is held on a constructive trust basis for the Plaintiff to the extent of the judgement debt and interest thereon to which he is entitled to be paid by the Defendant, Sagar.
II. FACTS
[2] On June 1, 2006 summary judgement was granted as against Sagar in favour of the Plaintiff in the amount of $37,776.09.
[3] On July 28, 2008, Sagar and his mother, the Defendant Sharma, the registered owners of 85 Adrianno Crescent in Brampton, Ontario sold that property. The half of the net proceeds to which Sagar was entitled, being approximately $120,000.00, was paid to Sharma as well her own approximately $120,000.00.
[4] The $240,000.00 was used to purchase in August of 2008 18 Landscape Drive, the property subject of the claim; it was registered in the name of Sharma and the Defendant Kumar, Sagar’s parents.
[5] The affidavit of Sharma sworn August 12, 2016 states that Sagar originally intended to invest his share of the proceeds of sale in the Landscape purchase in which he would be a purchaser along with his parents, but instead did not participate as purchaser; rather, states the affidavit, he lent his share of the proceeds to his parents for their purchase in their names, and was repaid by them from their accounts with the Toronto Dominion Bank, and a line of credit. Sharma was not cross-examined by the Plaintiff on her affidavit.
[6] In an examination in aid of execution on April 7, 2014, Sagar stated that he had been repaid his share in India by his parents.
[7] The Landscape property remains registered in the names of Sharma and Kumar, although they contend that the property belongs beneficially entirely to Sharma.
III. ANALYSIS
[8] The Plaintiff in oral argument relies on s. 2 of the Fraudulent Conveyances Act. He concedes that there is no direct evidence that Sharma or Kumar knew of the judgement debt at the time the Landscape property was purchased. Rather he relies on Creditors’ Remedies in Ontario Third Edition at pages 613-614 for the proposition that if “there was no valuable consideration …the plaintiff need also show that the debtor intended to defeat its creditors but need not show that the transferee knew of the debtor’s intention.” Moreover, asserts the Plaintiff, there was no valuable consideration given by Kumar and, therefore, the purchase of the Landscape property was impeachable under the FCA.
[9] The test on a summary judgement motion of the type at bar is whether there is a genuine issue requiring a trial with respect to the claim. In Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 2d ed (Markham, Ontario: LexisNexis Canada Inc., 2014) at para 6.219 the learned authors observe, “The question whether there is a genuine issue requiring a trial is answered in light of whether a full trial is required for the judge to have the ‘full appreciation’ of the evidence and issues needed to make dispositive positive findings, and the ultimate question is whether a trial is required in the interest of justice.”
[10] On the evidence before me there is a genuine issue for trial in relation to the Plaintiff’s argument for the application of s. 2 of the FCA, including his argument that there was no valuable consideration paid by Kumar. There needs to be a full evidentiary record developed in respect of the sale of the Adrianno property and the purchase of the Landscape property, in particular regarding the flow of the proceeds from the Adrianno sale, the alleged loan by Sagar of his share of them to his parents, and the alleged repayment of that loan.
[11] For those reasons I dismiss the motion at bar.
IV. COSTS
[12] If the parties are unable to agree on costs, I will receive written costs submissions of no more than 3 pages, excluding a bill of costs. The Defendants Sharma and Kumar will serve and file their submissions within 14 days from release of this endorsement. The Plaintiff will serve and file his submissions within 14 days from service of the last of those submissions. There shall be no reply. Further, the submissions of the parties shall address among other matters any costs reserved on early appearances to the judge hearing the motion I have decided.
Bloom, J. DATE: October 13, 2016