CITATION: Marsland v. Hira, 2017 ONSC 5899
COURT FILE NO.: CV-17-4160-00
DATE: 20171003
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: CHAD MARSLAND and JACQUELINE MARSLAND – and – AMANDEEP KAUR HIRA
BEFORE: Daley, RSJ.
COUNSEL: Jordan Goldblatt and Melissa Mustafa, for the Plaintiff
No counsel for the Defendant
HEARD: September 28, 2017
E N D O R S E M E N T
[1] On September 26, 2017 the plaintiffs moved ex parte for a Mareva order which would grant them leave to register a charge against the defendant’s property at 3300 Lakeshore Road West, Oakville, Ontario.
[2] For the reasons that follow, the order sought was granted, subject to the requirement that counsel for the plaintiffs and the defendant, if so appointed, returned on September 28, 2017 to advise the court of the status of this matter.
Evidentiary Record:
[3] The deponent, Chad Marsland, stated in his supporting affidavit on this motion that he and his wife own property municipally addressed as 284 Northshore Boulevard West, in the city of Burlington. That property was listed for sale and the defendant submitted an offer to purchase the property, which was accepted, at a price of $1,899,900, with the closing date scheduled for August 31, 2017.
[4] On August 29, 2017, the defendant’s solicitor advised that she would not be closing the transaction and that the plaintiffs were at liberty to treat the agreement as breached. The plaintiff’s’ solicitor tendered upon the solicitors representing the defendant and the tender packages returned.
[5] As of the date of this motion, the plaintiffs have re-listed their property for sale, however an offer in respect to the property has not yet been accepted by them.
[6] The deponent asserts that there has been a significant change in the Burlington residential real estate market since April 2017, when the plaintiffs accepted the defendant’s offer to purchase the property.
[7] Prior to the closing date of August 31, 2017, the defendant’s solicitor sought a one-week extension on the transaction because the defendant’s husband was “tied up in India” and “as a result of unrest and violence in their hometown, banks ceased doing business and consequently he will not be available to execute closing documents.” The solicitor’s letter outlining this information did, however, also state: “my clients have a substantial deposit and have every intention to complete the transaction…”.
[8] In a subsequent letter dated August 29, 2017, the defendant purchaser’s solicitor wrote to the plaintiffs’ solicitor, advising “… my clients have now advised that they will not be able to close the purchase transaction and have instructed me to notify you of same. You may treat this as an anticipatory breach and suggest your client re-list the property immediately taking any and all measures to mitigate their damages.”
[9] Mr. Marsland, the deponent, offers some hearsay evidence as to the changing real estate market in Burlington between April and August 2017. For example, he states that he was informed by his real estate agent that the average sale price for a residential home in Burlington was $782,897 in April 2017, and $559,633 in August 2017. Further, the deponent stated that the agent informed him that the average price of a freehold property similar to the plaintiffs’ property has dropped from $920,039 in April to $587,340 in August – a decline of 36.2%. Thus, it is asserted that the plaintiffs could sustain a loss in the order of $686,689 as a result.
[10] As of the date of the plaintiffs’ motion, the deponent states that the plaintiffs have received an offer to purchase their property for $1,700,000, but that offer provides less in terms of a deposit and a closing date further out in time. Additionally, it is stated that the plaintiffs have incurred legal fees, property taxes, as well as costs with respect to maintenance, utilities, and financing.
[11] As to the evidence offered regarding the defendant’s intentions and bona fides, the deponent states in his affidavit that the plaintiffs became concerned about the defendant’s bona fides when it was determined that the defendant was selling a property which she jointly owned with an individual named Amandeep Singh Hira, located at 3300 Lakeshore Road West, Oakville.
[12] In the deponent’s affidavit, there is a parcel register confirming the defendant’s ownership interest in that property, as well as a copy of an MLS listing for that property current as of July 17, 2017, with a list price of $6,999,000.
[13] As to the defendant’s status and travel plans, the defendant’s solicitor advised the plaintiffs’ solicitor by email on September 22, 2017, that the defendant was departing for India on Wednesday, September 27, and that at that time she did not have a scheduled date for return to Toronto, although she was expecting to return in a few months. A copy of the defendant’s itinerary was attached to that email confirming her travel to India.
[14] On September 22, 2017, the deponent states that he contacted his real estate agent, who in turn inquired about the listing on the defendant’s property and at that time the agent was advised that the property was no longer listed for sale.
Legal Framework & Analysis:
[15] Section 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43 is the statutory authority governing the granting of Mareva injunctions.
[16] In Sibley & Associates LP v. Ross, 2011 ONSC 2951, 106 O.R. (3d) 494, Justice Strathy (as he then was) outlined the applicable five-part test for the granting of a Mareva injunction which can be summarized as follows:
(1) the plaintiff must make full and frank disclosure of all material facts within his or her knowledge;
(2) the plaintiff must give particulars of the claim against the defendant, stating the grounds of the claim and the amount thereof and the points that could be fairly made against it by the defendant;
(3) the plaintiff must give grounds for believing that the defendant’s assets are in the jurisdiction;
(4) the plaintiff must give grounds for believing that there is a real risk of the assets being removed from the jurisdiction, or disposed of within the jurisdiction or otherwise dealt with so the plaintiff will be unable to satisfy a judgment awarded to him or her; and
(5) the plaintiff must give an undertaking as to damages.
[17] In addition to satisfying this test, the moving plaintiff must be able to show the court, as a condition precedent to obtaining the Mareva injunction, that it has a strong prima facie case.
[18] On the record adduced, I have concluded that the plaintiffs have a strong prima facie case. The defendant’s solicitor clearly and unequivocally admitted that the defendant had breached the agreement of purchase and sale and as such the plaintiffs have a strong prima facie case on the issue of liability, with only damages to be determined.
[19] In respect to the first element of the test outlined above, on considering the evidentiary record adduced, I am satisfied that there has been full and frank disclosure, including the disclosure of a possibly new offer to purchase the plaintiffs’ property from a third-party.
[20] In respect to the third element of the test, that the plaintiff must establish that the defendant has assets within the jurisdiction, the property register with respect to the defendant’s residence confirms that she has an ownership interest in that property and thus an asset within the jurisdiction.
[21] In respect to the fourth element of the test, that the plaintiffs have grounds to believe that there is a real risk that the defendant would take steps to dispose of her property so as to prevent the plaintiffs from recovering the damages they were found to be entitled to, the cumulative effect of the evidence offered establishes that this is a real and clear risk for the following reasons:
(1) The defendant’s home was listed for sale and has recently been taken off the market, thus allowing for a private non-MLS sale, which would not be subject to public scrutiny on the MLS system;
(2) The defendant was scheduled to leave Canada and travel to India on September 27, 2017, with no stated return date;
(3) As to the defendant’s motive or intention, coincidental with the defendant’s default in completing the terms within the agreement of purchase and sale, the real estate market in Burlington had declined significantly between the spring of 2017 and the proposed closing date in August;
(4) There is a lack of evidence as to the defendant’s connection with this jurisdiction.
[22] In respect to the fifth element of the test, the plaintiffs have provided an undertaking as to damages as required.
[23] The plaintiffs’ motion is granted and an order shall issue in the form of the draft order, as amended by me and signed on September 26, 2017.
[24] The costs with respect to this ex parte motion are reserved.
Daley, J.
DATE: October 3, 2017
CITATION: Marsland v. Hira, 2017 ONSC 5899
COURT FILE NO.: CV-17-4160-00
DATE: 20171003
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: JACQUELINE MARSLAND and CHAD MARSLAND – AND – AMANDEEP KAUR HIRA
BEFORE: Daley, RSJ.
COUNSEL: Jordan Goldblatt and Melissa Mustafa, for the Plaintiffs
Bart Sarsh, for the Defandant
ENDORSEMENT
Daley, RSJ.
DATE: October 3, 2017