Court File and Parties

CITATION: Greig v. Kritikopoulou, 2017 ONSC 4594

COURT FILE NO.: CV-16-559525

DATE: 20170801

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANGELA GREIG and ROBERT GREIG, Plaintiffs

AND:

IRENE KRITIKOPOULOU, Defendant

BEFORE: Ferguson, J.

COUNSEL: Milé Komlen, for the Plaintiffs

David Strashin, for the Defendant

HEARD: July 27, 2017

ENDORSEMENT

[1] The plaintiffs seek injunctive relief restraining the defendant from interfering with their use of the property located at 34 Woodington Avenue, Toronto (“the property”). The plaintiffs are the daughter and the son-in law of the defendant. The defendant is the registered owner of the property and has owned the property since May of 1975. The plaintiffs have resided in the property as a married couple with their two children for over 25 years. The defendant takes the position that they are her tenants (there is no tenancy agreement). The plaintiffs’ claim a beneficial/equitable interest in the property on the basis of a constructive trust. The defendant denies that the property was purchased in trust for the plaintiffs or that she holds the property for them in a constructive trust.

[2] I have now again reviewed all of the materials. The plaintiffs rely on 6 affidavits which are uncontroverted. The defendant has filed no affidavit evidence. Both factums were very helpful.

[3] The defendant at one point sought to terminate what she believed to be a tenancy by delivering a registered letter from a lawyer ordering the plaintiffs to vacate the property by July 31, 2016.

[4] On August 29, 2016 the plaintiffs filed their claim in this matter. The defendant has filed her statement of defence. I gave leave to the plaintiffs to amend their claim.

[5] On November 29, 2016 the defendant consented to the CPL being placed on the property. It remains in effect.

[6] The plaintiffs secured temporary accommodation nearby to the property. I accept and counsel for the defendant agrees that they have not abandoned the property.

[7] The matter was initially before me on June 28, 2017. On consent certain interim relief (including an interlocutory injunction) was granted by me. On July 27, 2017 I learned that the defendant breached my earlier order by attending at the property on July 3, 2017. Today I extended the interim order with reasons to follow. These are the reasons. The defendant, her son and other unknown individuals were in the courtroom. When I extended the interim order, I specifically directed that no one representing the defendant or the defendant attend at the property. They indicated that they understood.

[8] Curiously, counsel for the defendant indicated that he was not asking for an order that the plaintiffs be removed from the property. Later when questioned, counsel indicated that the plaintiffs are not residing at the property. I do not accept the defendant’s evidence about this. I accept the plaintiffs’ evidence as to what happened with the property after June 28, 2017 and the fact that they are residing at the property. I have already found that they have not abandoned the property by obtaining temporary accommodation elsewhere.

[9] I am prepared to order that the interim injunction of June 28, 2017 be converted into an interlocutory injunction on the same wording as in the interim order. There was some concern that the wording used in relief sought clause b. would cause confusion and perhaps another court attendance.

[10] Although I do not believe it is necessary to go through the analysis of the law regarding injunctions because of defence counsel’s concession that he was not seeking a removal order of the plaintiffs, I will briefly do so.

The Test For An Injunction

[11] The moving party must meet the following three-part test to success on a motion seeking an interlocutory injunction:

a) Is there a serious question to be tried?;

b) If the injunction is not granted will the moving party suffer irreparable harm which cannot be adequately compensated by damages?; and

c) Which party will suffer the greater harm if the injunction is granted or refused pending a decision on the merits?

[12] The three-pronged test for granting an injunction was affirmed by the Supreme Court of Canada in RJR-MacDonald v. Canada (Attorney General) as follows:

a. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

[13] The final analysis, however, must be driven by what is just and equitable in all the circumstances of the case.

[14] The defence agrees that the first step has been met by the plaintiffs.

[15] With respect to the second step the court is normally justified in granting an injunction where the plaintiffs are likely to suffer irreparable harm in the absence of injunctive relief. In order to qualify as “irreparable”, the nature of the harm must be such that damages will not suffice.

[16] The plaintiffs’ uncontroverted affidavit evidence includes the following:

[1] There is a looming threat that the defendant will transfer or otherwise convert the property, to the detriment of the plaintiffs’ interests and interference with the status quo, as evidenced by the defendant’s actions and stated intentions. In this regard, the plaintiffs state:

a) The defendant demanded and took back the deed to the property from the plaintiffs on May 5, 2016, which had been held by the plaintiffs for safekeeping for over 25 years.

b) The defendant purported to evict the plaintiffs from the property by letter from her previous counsel dated May 4, 2016.

c) The defendant attempted an unauthorized entry on the property on August 8, 2016 with her copy of the key.

d) The defendant’s previous counsel declined to provide any assurance to the plaintiffs that the eviction order of May 4, 2016 would not be enforced, or that the defendant would not place any type of charge on the property, or otherwise interfere with it, while the matter remained unresolved.

e) The defendant stated that she had retained a paralegal to transfer title to the property to her son, George, and that the transfer was imminent.

f) Despite the Order of Master Mills, on an unopposed basis, that a CPL be issued against the property, the defendant forcibly entered into the property on April 25, 2017, and did so a second time on April 30, 2017, by affixing an unalterable Medeco lock, thereby denying access or entry to the plaintiffs as the lawful occupiers of the property.

[17] As set out above, the defendant breached my very clear order that she not attend at the property on July 3, 2017.

[18] I agree that the plaintiffs are likely to suffer irreparable harm in the absence of injunctive relief and that damages will not suffice. This is the home in which the plaintiffs have lived together for 25 years.

[19] With respect to the third step where both parties argue that they will suffer irreparable harm (the moving party if the injunction is not granted and the responding party if the injunction is granted), the court may engage in a “determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits.”

[20] The plaintiffs claim that the balance of convenience favours granting an injunction enjoining the defendant and her agents to preserve the sacrosanctity of the plaintiffs’ family home, which they have occupied for over 25 years. To dislodge the plaintiffs’ family while this matter is being litigated would constitute immediate distress to the plaintiffs and their children, which is far outweighed by the defendant’s unlawful efforts to repossess, convert or transfer the property. I accept the plaintiffs’ submission. There is already affidavit evidence from the defendant’s daughter as to the mental distress and trauma regarding this situation.

[21] As I have found that the plaintiffs have met the regular injunction test, I am not going to analyze the plaintiffs’ alternate submission that the modified test also applies.

[22] The injunctive relief is granted. If the parties cannot agree on costs the plaintiffs can provide brief written submissions within 30 days sent by email and the defendant within 14 days thereafter.

Ferguson, J.

Date: August 1, 2017