COURT FILE NO.: CV-17-568933

DATE: 20180307

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

MARIA P. PAVAO

Plaintiff

– and –

ZENAIDE FERREIRA, ALSO KNOWN AS ZENAIDA FERREIRA, JOSE FERREIRA, THE ESTATE OF LUIS C. PAVAO, DECEASED, VICTOR PAVAO, IN HIS CAPACITY AS BENEFICIARY OF THE ESTATE OF LUIS PAVAO, AND MICHAEL PAVAO, IN HIS CAPACITY AS BENEFICIARY OF THE ESTATE OF LUIS PAVAO

Defendants

Gisel Bettencourt

for the Plaintiff

Michael Katzman

for the Defendant Zenaide Ferreira

Daniel Naymark

for the Defendant Jose Ferreira

Andreas Seibert

for the Defendants Victor Pavao and

Michael Pavao

HEARD: November 16, 2017

FAVREAU J.:

Introduction

[1] This matter has a complex history and came before me as a motion for extensive extraordinary injunctive relief, including the continuation and expansion of a Mareva injunction, and additional Norwich orders.

[2] For the reasons set out below, the motion to continue the injunctive relief already ordered is granted, but the balance of the motion is dismissed.

Background facts

The parties and background relevant to the motion

[3] The plaintiff, Maria Pavao (“Ms. Pavao”) is 81 years old. She immigrated to Canada from Portugal in 1952. She was married to Luis Pavao (“Mr. Pavao”) for over 60 years.

[4] Ms. Pavao and Mr. Pavao have four adult sons. The defendants Victor Pavao (“Victor”) and Michael Pavao (“Michael”) are the two youngest sons. The older sons, John and Oswald, are not parties to this action.

[5] Mr. Pavao was admitted to hospital with lung cancer in August of 2015, where he remained until his death on December 13, 2015.

[6] Ms. Pavao and Mr. Pavao separated on September 1, 2015, while Mr. Pavao was in the hospital. In November 2015, Ms. Pavao initiated an application under the Family Law Act, R.S.O. 1990, c. F.3, for the purpose of obtaining spousal support and equalization of the net family property (the “FLA proceedings”).

[7] Following Mr. Pavao’s death, Ms. Pavao continued the FLA application by way of a Notice of Application dated March 4, 2016 under the Succession Law Reform Act, R.S.O. 1990, c. S.26.

[8] Throughout his life, Mr. Pavao ran a dry goods store in Toronto’s Kensington Market (the “Kensington Store”). The Kensington Store was jointly owned by the Pavaos. In addition, at different times, he and Ms. Pavao owned a number of other properties, including the following which are at issue in this action:

a. A restaurant property located in Dundalk, Ontario (the “Dundalk Restaurant Property”);

b. A farm property located in Dundalk, Ontario (the “Dundalk Working Farm”); and

c. A second farm property located in Dundalk, Ontario (the “Third Dundalk Property”).

[9] Since the late 1970s, the defendant Zenaide Ferreira provided bookkeeping assistance and financial advice to Mr. Pavao. The defendant, Jose Ferreira (“Mr. Ferreira”) is Ms. Ferreira’s husband. (Collectively Mr. and Ms. Ferreira are referred to as the “Ferreiras” or the “Ferreira defendants”.)

[10] In addition, it is evident that some of the properties owned by Mr. Pavao and, in some cases, Ms. Pavao were also owned in part by Ms. Ferreira and, in one case, Mr. Ferreira. For example, the Pavaos and Ferreiras owned the Dundalk Working Farm together until 2008 when Ms. Pavao sold her interest to the Ferreiras and 2010 when Mr. Pavao sold his interest to the Ferreiras. In addition, Mr. Pavao and Ms. Ferreira owned the Third Dundalk Property together until 2015, when Mr. Pavao transferred his interest in the property to Ms. Ferreira.

[11] It is also evident that the two families had a social relationship and that, amongst other interactions, they spent recreational time together at the Dundalk Working Farm.

Estate proceedings

[12] Mr. Pavao’s will did not leave anything to Ms. Pavao. His will provided that his estate was to be divided equally between his four sons, and included a few small gifts to other relatives.

[13] Soon after Mr. Pavao’s death, the Pavaos’ oldest sons, John and Oswald, claimed that their father had transferred his interest in the Kensington Store to them a few days before his death. They brought an application to the Court on February 29, 2016, seeking to have the Court approve the transfer (the “Estate proceedings”). Ms. Pavao, all four Pavao sons and the Ferreiras were parties to the application. The application was ultimately settled by consent judgment dated August 15, 2018, although it does not appear that the Ferreiras participated in the settlement. The settlement included approval of the transfer of Mr. Pavao’s interest in the Kensington Store to John and Oswald, John and Oswald renouncing any interest in the balance of Mr. Pavao’s estate and a requirement that John and Oswald swear affidavits in support of the proceedings against the Ferreiras.

[14] Ms. Pavao has also brought a dependent’s support application in the context of the Estate proceedings. The settlement of John and Oswald’s application provides that Ms. Pavao can continue with her application.

Motion before Justice Charney

[15] In the context of the Estate proceedings and the FLA proceedings, Ms. Pavao obtained disclosure of some of Mr. Pavao’s financial records. Through this disclosure, she became aware of the extent of Ms. Ferreira’s role in Mr. Pavao’s financial interests. It became evident that Ms. Ferreira had signing authority over many aspects of Mr. Pavao’s bank accounts, that she was in possession of many of his financial records and that her home address was the mailing address for many of Mr. Pavao’s records such as his income tax returns.

[16] It also became evident that the Dundalk Restaurant Property had been sold in August 2015, that Mr. Pavao had deposited $311,892.79 from the proceeds of sale in a bank account that was jointly held by the Pavaos at a branch of the Canadian Imperial Bank of Commerce (the “CIBC”), and that Ms. Ferreira had transferred $235,567.90 out of that account in the form of money orders and to other accounts at the CIBC in her own name. Notably, some of these transfers had been made after John and Oswald had been appointed as powers of attorney for property for Mr. Pavao and, in at least one case, after Mr. Pavao’s death.

[17] On the basis of this information, Ms. Pavao’s lawyer brought an urgent motion against Ms. Ferreira in the context of the FLA proceedings seeking a Mareva injunction for the purpose of freezing $235,567.09 in Ms. Ferreira’s CIBC accounts and/or the return of the money orders Ms. Ferreira had drawn on the Pavaos’ joint account. Ms. Pavao also sought a Norwich order for disclosure of information from the Ferreiras’ CIBC accounts. The motion was brought before Justice Charney on January 19, 2017, on five days’ notice.

[18] At the time of the motion, Ms. Ferreira had retained counsel, but the lawyer she retained was unavailable for the motion, and another lawyer appeared on his behalf to request an adjournment.

[19] On the day of the motion, Justice Charney granted the adjournment to April 18, 2017, on a number of terms including the following:

a. A schedule was set for the exchange of materials and cross-examinations leading up to the hearing of the motion;

b. The plaintiff was required to commence a separate action or application against Ms. Ferreira within 14 days;

c. The CIBC was required to disclose to Ms. Pavao’s counsel the amounts in any accounts held by Ms. Ferreira and/or Mr. Ferreira in which either of them had an interest, including three specifically identified accounts;

d. The CIBC was required to freeze until further order of the court the sum of $235,567.90 in the accounts held by Ms. Ferreira and/or Mr. Ferreira;

e. Mr. Ferreira was to surrender to Ms. Pavao’s lawyer any uncashed bank drafts, international money orders or other negotiable instruments in her possession that were obtained through withdrawals from Mr. Pavao’s bank accounts, and the amount of frozen funds was to be reduced to reflect the amount of bank drafts delivered to Ms. Pavao’s lawyer; and

f. The Ferreiras were to deliver to the plaintiff’s lawyer within 20 days, all papers and property in their possession belonging to Mr. Pavao, including all banking, investment, estate planning, business, tax, insurance, legal files, powers of attorney and wills.

[20] A few days later, Justice Charney released his decision explaining the basis for his order. His decision, which is reported as 2017 ONSC 542, included the following findings:

8 Shortly before the date of separation Luis sold the restaurant property that was owned solely by him. He deposited the proceeds of the sale - $311,892 - of the property into his bank account on August 7, 2015. While that bank account was held jointly with the applicant she did not know that it existed. She only discovered its existence after the Court issued an order on April 28, 2016 compelling the bank to disclose all accounts belonging to Luis (the disclosure order).

11 Since obtaining the disclosure order the applicant has discovered other accounts in which Luis deposited funds from his business operations. The applicant discovered that Ms. Ferreira was also named as an account holder and received all of the bank statements at her home. Her signature appears on all cheques written on the account and her name and that of Luis Pavao are printed on the cheques.

12 The applicant alleges that Ms. Ferreira has transferred to herself or to accounts held jointly with her husband Jose Ferreira (via money orders, bank drafts, cheques and transfers) virtually all of the proceeds from the sale of the restaurant. They allege that, unbeknownst to the applicant, Ms. Ferreira transferred a total of $235,567.90 from the Pavao's joint bank account into her accounts. The applicant has produced the bank documents (cheques, bank drafts and international money orders) to support this allegation.

13 This amount includes a $100,000 bank draft that was cashed by Ms. Ferreira as recently as December 9, 2016.

[21] Based on these findings, Justice Charney found that it was appropriate to make an order freezing the amounts Ms. Ferreira had transferred out of the Pavaos’ joint account:

20 I am satisfied that the applicant has met the test for a Mareva injunction in this case. The evidence presented by the applicant on this motion presents a strong prima facie case that Ms. Ferreira has converted funds from the applicant's joint account or the proceeds of the sale of a property to which the applicant has a valid claim, to Ms. Ferreira's own use. Ms. Ferreira's past conduct establishes a circumstance of urgency such that there is a serious risk of removal, dissipation or hiding of such assets if the injunction is not made until this motion can be heard in three months. Now that Ms. Ferreira's activities regarding these funds have been detected the funds are at risk.

21 I am satisfied that the applicant, who is 81 years of age and in poor health, will suffer irreparable harm if the assets are dissipated before this motion can be heard with a full record. This is a circumstance where if the assets are dissipated they may not be recovered in the applicant's lifetime. The sum in question can be traced directly to the Pavao's joint bank account and/or the sale proceeds of the restaurant property. The freezing order does not interfere with Ms. Ferreira's ability to conduct banking with respect to funds linked to her own income. Finally, while the freezing of Ms. Ferreira's bank accounts for three months may be an inconvenience, no evidence was presented to suggest that Ms. Ferreira had any immediate need for these funds over the next few months. Indeed, her counsel advised that she was a woman of means who owned many properties in Toronto.

[22] He also found that this was an appropriate case for a Norwich order compelling disclosure from the CIBC:

34 I have already determined that the applicant has presented a strong bona fide claim or potential claim against Ms. Ferreira. In the present case the bank is an innocently involved third party in receipt of allegedly fraudulent funds from the Pavao's accounts or properties. This satisfies the second part of the Norwich test. The bank, as is often the case, is likely the only practical source of information that would enable the applicant to locate fraudulently transferred assets or funds. (Autopoietic Telemetric Solutions Limited v. John Loughlin, 2012 ONSC 2305 at para. 15).

Motion before Justice Croll

[23] Following Justice Charney’s decision, on February 2, 2017, the plaintiff issued a statement of claim that commenced this civil action. The claim makes extensive allegations of fraud, deceit, breach of fiduciary duty, breach of contract and negligence against Ms. Ferreira. The allegations are not limited to the issue of the proceeds of sale from the Dundalk Restaurant property, but span many years and relate to extensive alleged financial dealings between Ms. Ferreira and the Pavaos.

[24] On April 18, 2017, the plaintiff sought to proceed with the motion for injunctive relief that had been adjourned by Justice Charney. The motion was brought in Family Court.

[25] Justice Croll made the following endorsement, finding that the motion should not have been brought in Family Court, and varying the interim relief ordered by Justice Charney:

This dispute does not properly belong in the family court (See endorsement of Charney J dated Jan 19, 2017, paras. 28 and 29.) The issues raised against the Ferreiras and the relief sought must be resolved in the context of the civil action that has been initiated.

This motion is adjourned sine die, pending relief in the civil action, on the following terms:

The interim order of Charney J dated January 19, 2017 shall continue in place subject to the following:

i. The Respondents Zenaide Ferreira and Jose Ferreira shall pay into court the sum of $185,000 pending the disposition of the civil claim, another order of this court, or agreement of the parties. Upon this payment being made, paras 6 and 7 of the Charney Order are no longer required and shall be removed;

ii. Accordingly, CIBC is ordered to “unfreeze” the accounts referred to para 5;

iii. The Respondent Zenaide Ferreira shall not sell, mortgage or otherwise deal with the property known as 19 Dundalk, described as Part of Lot 236 and Part of Lot 237, Concession 1, Southwest of the Toronto and Sydenham Road, being Part 2 on Plan 17 R-1178, Township of Southgate, County of Grey (known as the 3rd Dundalk property) without first providing at least 60 days written notice to the Applicant Maria Pavao and the Respondents Victor Pavao and Michael Pavao, and without their consent or the consent of the Court;

iv. The Applicant and Pavao Respondents shall arrange for this motion to be heard at the earliest possible time, and in any event no later than May 31, 2017;

v. Given the serious costs issues, all parties may refile the material filed for this motion today in the civil action, and rely on same.

Issues and position of the parties on the motion

[26] Following Justice Croll’s endorsement, the motion was scheduled for June 12, 2017. The motion was subsequently rescheduled on consent to November 16, 2017, to allow time for a refusals motion.

[27] The relief sought on the motion before me expanded significantly from the motion that was originally heard by Justice Charney, in part due to information the plaintiff received as a result of the disclosure from the CIBC and other sources. The plaintiff now seeks to continue the orders made by Justices Charney and Croll, and she also seeks expanded Mareva injunctive relief and very broad Norwich orders. The specific relief she seeks is as follows:

a. Continuation of the orders made by Justice Charney and Justice Croll;

b. Freezing of an additional $525,000 (or half of that amount), which represents the proceeds of sale from the Dundalk Working Farm;

c. Broad third party production from financial institutions and government agencies, including the Canada Revenue Agency (the “CRA”);

d. An order permitting the continuation of the action against the estate of Mr. Pavao without an estate trustee;

e. Consolidation of this action with the FLA proceedings and the Estate proceedings;

f. A certificate of pending litigation; and

g. Costs of the motion before Justice Charney on a substantial indemnity basis.

[28] In support of the motion, the plaintiff relies on three affidavits sworn by a law clerk in her lawyer’s office. The first affidavit formed the basis for the motion before justice Charney. The other two affidavits are based in part on the information obtained from the CIBC as a result of the Justice Charney’s Norwich order. The plaintiff’s record also includes affidavits sworn by John and Oswald that are attached to the law clerk’s affidavit.

[29] Relying on these affidavits and cross-examinations on the Ferreiras’ affidavits, the plaintiff argues the sales of the Dundalk Working Farm and the Third Dundalk Property were improper. With respect to the Dundalk Working Farm, she argues that Ms. Ferreira tricked Ms. Pavao into selling her share of the property and that Mr. Pavao did not get any consideration for his share of the property. With respect to the Third Dundalk Property, Ms. Pavao claims that the transfer of the property from Mr. Pavao to Ms. Ferreira for $2.00 was improper.

[30] She also argues that that the Kensington Store generated a significant amount of cash business, and that the Ferreiras’ wealth is disproportionate to the salaries they earned during their working lives, suggesting that the Ferreiras’ wealth comes from misappropriation of the Pavaos’ wealth.

[31] On this basis, Ms. Pavao seeks a continuation and expansion of the Mareva order, and seeks extensive further third party disclosure of the Ferreiras’ financial affairs.

[32] Not surprisingly, Victor and Michael support the plaintiff’s motion. Ultimately, as beneficiaries of Mr. Pavao’s estate, they have an interest in any amounts Ms. Ferreira may owe Mr. Pavao’s estate. However, they have not sworn any affidavits in support of the motion.

[33] In response to the motion, Ms. Ferreira has sworn two affidavits on which she was cross-examined. She maintains that she provided appropriate accounting and financial assistance to Mr. Pavao, and that there is an explanation for each of the apparent financial irregularities. She also takes the position that Victor and Michael do not have standing to advance the interests of Mr. Pavao’s estate, and that the appointment of an estate trustee is required to advance such interests. Finally, she takes issue with the propriety of the plaintiff’s evidence, arguing that the law clerk’s affidavits contain unattributed hearsay and that it is improper for an employee in a lawyer’s office to file an affidavit in support of the motion.

[34] Mr. Ferreira is separately represented by counsel. He also swore an affidavit and was cross-examined. He supports the positions taken by Ms. Ferreira on the motion.

Issues and analysis

[35] Based on the relief sought, I have distilled the issues to be decided as follows:

a. Is the affidavit of the law clerk admissible?

b. Is the plaintiff entitled to Mareva injunctive relief?

i. What is the test for a Mareva injunction?

ii. Should the Mareva injunction in respect of the proceeds of sale from the Dundalk Restaurant Property continue?

iii. Should a further Mareva injunction be granted in relation to the proceeds of sale from the Dundalk Working Farm?

c. Should a further Norwich order be granted?

d. Is injunctive relief available if the plaintiff has not sought injunctive relief in the statement of claim?

e. Is the plaintiff’s undertaking as to damages sufficient?

f. Should a certificate of pending litigation be granted in relation to the Third Dundalk Property?

g. Is the appointment of an estate trustee necessary?

h. Should the FLA proceedings, Estate proceedings and civil claim be consolidated?

Law clerk’s affidavit

[36] As mentioned above, the evidence in support of the plaintiff’s motion is based on affidavits sworn by Eva Medeiros, who is a law clerk working in the office of counsel for the plaintiff. The Ferreira defendants take issue with Ms. Medeiros’ affidavits on the basis that they contain unattributed hearsay and that it is improper for a lawyer to provide substantive evidence on a motion. While not argued explicitly, Ms. Pavao’s lawyer appears to defend the use of Ms. Medeiros’ affidavit on the basis that Ms. Pavao is elderly and frail, and that her English is poor and she is illiterate.

[37] Rule 39.01(4) of the Rules of Civil Procedure sets out the requirements for affidavit evidence on a motion:

An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.

[38] The case law recognizes that a failure to attribute hearsay evidence is not fatal in circumstances in which it is possible to glean the source of the information from the attached exhibits and circumstances where the matters at issue are not contentious: see Carevest Capital Inc. v. North Tech Electronics Ltd., 2010 ONSC 1290 (Div. Ct.) at para. 16; and Abco Box & Carton Co. v. Dafoe & Dafoe Inc., [1987] O.J. No. 2395 (Dist. Ct.) at paras. 12 to 19. However, there is no doubt that second or third hand hearsay or unattributed hearsay on contentious matters in inadmissible or at the very least should be given little to no weight: Cardenas (Litigation guardian of) v. Sallese, 2017 ONCA 237 (C.A.), at paras. 10 and 11.

[39] I also agree with the Ferreira defendants that it is generally improper to rely on an affidavit sworn by a lawyer or staff within a law firm for the purpose of advancing evidence dealing with the substance of a claim. In Ferreira v. Cardenas, 2014 ONSC 7119 (Sup. Ct.), paras. 14 to 17, Myers J. explained why affidavits from lawyers and law firm staff are generally inappropriate in support of a motion for summary judgment:

14 Lawyers' affidavits can be quite helpful in cases where the lawyers, or their staff, have particular knowledge relevant to the facts in issue before the court. In Mapletoft v. Christopher J. Service, 2008 CanLII 6935 (ON SC) at para. 15, Master MacLeod provided the following guidelines for the use of lawyers' affidavits:

For the guidance of counsel in future, I propose the following guidelines:

a) A partner or associate lawyer or a member of the clerical staff may swear an affidavit identifying productions, answers to undertakings or answers given on discovery. These are simple matters of record, part of the discovery and admissible on a motion pursuant to Rule 39.04. Strictly speaking an affidavit may not be necessary but it may be convenient for the purpose of organizing and identifying the key portions of the evidence. Used in this way, the affidavit would be non-contentious.

b) If it is necessary to rely on the information or belief of counsel with carriage of the file, it is preferable for counsel to swear the affidavit and have other counsel argue the motion. This approach will not be appropriate for highly contentious issues that may form part of the evidence at trial. If the evidence of counsel becomes necessary for trial on a contentious issue, it may be necessary for the client to retain another law firm.

c) Unless the evidence of a lawyer is being tendered as expert testimony on the motion, it is not appropriate for an affidavit to contain legal opinions or argument. Those should be reserved for the factum.

15 Some procedural motions turn on evidence that counsel is uniquely situated to provide. For example, a motion for dismissal for delay under rule 24.01 or a motion to amend a timetable under rule 3.04 will turn on facts concerning how the litigation has progressed or the reasons why it may not have progressed for a period of time. Counsel, rather than clients, are often best suited to have personal knowledge of these types of facts. Similarly, if the conduct of counsel is the subject matter of a proceeding, such as a motion for costs under rule 57.07 or more a motion brought to compel undertakings under rule 34.15, then, once again, counsel will likely be best suited to provide firsthand evidence of relevant facts.

16 It is rarer for law firm clerical staff to be helpful witnesses. In some cases, a clerk or assistant may conveniently adduce evidence simply exhibiting correspondence between lawyers that is non-contentious. By contrast, evidence from a lawyer adduced by way of information and belief through a staff member simply limits the weight of the evidence and should be discouraged: Essa (Township) v. Guergis; Membery v. Hill, 1993 CanLII 8756 (ON SCDC), [1993] O.J. No. 2581 (Ont. Div. Ct.). Moreover, this is not an appropriate vehicle if the lawyer who provides the information wishes to be counsel at the hearing: Manraj v. Bour, 1995 CarswellOnt 1335 (SCJ). One may also question the advisability and propriety of exposing administrative staff to cross-examination.

17 Unlike these procedural motions, motions for summary judgment go to the heart of the merits of the dispute between the clients. The lawyers for the parties generally have no firsthand knowledge of the facts. They have no "specific facts showing that there is a genuine issue requiring a trial". For this reason, information and belief evidence tendered through a lawyer's affidavit will rarely satisfy rule 20.02. Moreover, as the Court of Appeal explained in Armstrong v. McCall, 2006 CanLII 17248 at para. 33, there is a concern that information and belief evidence will be used to shield persons from cross-examination.

[40] Given that the test on a motion for a Mareva injunction requires the plaintiff to demonstrate that she has a strong prima facie case, in my view similar concerns arise with allowing the plaintiff to put her case forward through the evidence of a law clerk. Having said that, the courts have recognized that evidence through a lawyer’s affidavit is appropriate if it deals with procedural or non-contentious matters: see Garrick v. Dalzine, 2015 ONSC 2175 (Sup. Ct.), at para. 7.

[41] In his case, Ms. Medeiros’ affidavits contain a mix of admissible evidence, inadmissible evidence and evidence to which I would give little weight. Parts of her affidavits consist of a narrative attaching documents from third party sources, such as the CIBC, and, in my view, these are business records and are admissible. Other parts of her affidavit provide background information about the parties and the history of the proceedings, and again, in my view, these are non-contentious matters and therefore admissible.

[42] However, there are many instances in which Ms. Medeiros’ affidavit is hearsay evidence touching on matters of controversy, and in some cases is unattributed or second or third hand. Set out below are a few examples of many such instances:

a. “Ms. Pavao advises that the store generated significant cash over the decades and that Mr. Pavao took this cash to Ms. Ferreira’s home every week. Ms. Pavao does not know the whereabouts of the cash generated by the store. Ms. Pavao believes that cash revenues from the family’s Casa Acoreana business were used to fund the purchase of various pieces of real estate, the proceeds of which are missing or have been transferred to Ms. Ferreira”. (Paras. 42 and 43 of Ms. Medeiros’ affidavit sworn January 10, 2017.)

b. “Ms. Pavao, Victor and Michael Pavao have also advised that they did not receive any Christmas gift on behalf of Mr. Pavao and were completely unaware of this cheque until it was disclosed by CIBC.” (Para. 55 of Ms. Medeiros’ affidavit sworn January 10, 2017.)

c. “Ms. Pavao advises that contrary to the assertions in Ms. Ferreira’s Answer, it was actually Ms. Ferreira who approached and suggested to Ms. Pavao that Ms. Pavao should purchase a car for her son Michael, but this was not at all tied to selling a share in the Dundalk Working Farm. Ms. Pavao advises that Ms. Ferreira arranged to take her to a lawyer’s office to sign papers and that Ms. Ferreira must have paid the legal fees. Ms. Pavao advises that she had no idea what she was signing”. (Para. 97 of Ms. Medeiros’ affidavit sworn January 10, 2017.)

d. “Ms. Ferreira indicated in her Answer … that she had not held onto any property belonging to Mr. Pavao. However, I am advised by Ms. Pavao that Mr. Pavao owned a truck, and that a truck matching this description has been seen parked in Mr. and Ms. Ferreira’s driveway at 86 Riverwood Parkway on or about October, 2016.” (Para. 125 of Ms. Medeiros’ affidavit sworn January 10, 2017.)

e. “Subsequent to the January 19, 2017 hearing, Mr. Seibert advises that he spoke to the Pavao’s neighbours across the road from the Dundalk Working Farm who put him in contact with the mother of (and joint account holder with) Mr. Curtis Shaw, who confirmed regular payments to Mr. Shaw’s bank accounts to cut the grass and clear the snow at Dundalk Working Farm. Mrs. Shaw also advised Mr. Seibert that she accompanied her son to the said farm to carry out maintenance. Using this information, Mr. Seibert advised that CIBC, who were able to match these regular deposits into Mr. Shaw’s account to cheques prepared by Ms. Ferreira drawn from the Pavao’s joint CIBC Account 72-95235, between 2014 and June, 2015, years after the Pavaos allegedly ‘sold’ their share in the family farm to Ms. Ferreira.” (Para. 95 of Ms. Medeiros’ affidavit sworn March 30, 2017.) (Emphasis added in original.)

f. “Ms. Pavao advises that she and her husband did not purchase any properties and did not have any large expenses after November, 2006.” (Para. 112 of Ms. Medeiros’ affidavit sworn March 30, 2017.)

[43] In addition, as some of the examples above make clear, Ms. Medeiros’ affidavits are replete with argument, advocacy and opinion. Set out below are a few additional notable examples:

a. On a number of occasions, Ms. Medeiros states that it is her belief that Ms. Ferreira was holding certain amounts in trust for Mr. Pavao’s estate. For example, she states “Based on my review of the banking records provided by CIBC it is my belief that Ms. Ferreira was holding these funds on behalf of Mr. Pavao’s estate in trust in March 2016…” (Para. 67 of Ms. Medeiros’ affidavit sworn January 10, 2017.)

b. On a number of occasions Ms. Medeiros suggests that signatures are forged. For example, she states “Mr. Pavao’s signature on the cheque to Portugal Auto Garage appears to be forged as it does not resemble his signature on other documents signed in front of counsel during that time period.” (Para. 126 of Ms. Medeiros’ affidavit sworn January 10, 2017.)

c. She compares the Pavaos’ assets to the Ferreiras’ assets, and provides the following opinion: “Accordingly, in comparing the net worth of the Ferreiras and the Pavaos today, to when Ms. Ferreira first began bookkeeping work for the Pavaos, having regard to the income potential for each family, it appears that the Pavao family had substantially more resources.” (Para. 25 of Ms. Medeiros’ affidavit sworn March 30, 2017.)

d. Ms. Medeiros speculates that Ms. Ferreira wrote a letter signed by Mr. Pavao: “I believe that Zenaide Ferreira wrote this said letter to Epstein Cole because (i) Mr. Pavao spoke little English, was functionally illiterate in Portuguese and English and because he was at “death’s door” (he died on December 14, 2015); (ii) It appears that it is the same author (poor English-language skills) and that the same typewriter is used as in many other documents…” (Para. 28 of Ms. Medeiros’ affidavit sworn March 30, 2017.)

[44] Even if Ms. Pavao’s lawyer had explicitly argued that Ms. Pavao could not swear an affidavit on her own behalf, in my view the types of defects referred to above could not be saved on the basis that Ms. Meideros’ evidence is reliable and necessary. As indicated above, some of it is reliable because it is based on attached business records, but much of the evidence is unattributed hearsay or hearsay evidence from Ms. Pavao on very contentious matters. In terms of necessity, Ms. Medeiros has not put forward any independent evidence, beyond her own opinion, that Ms. Pavao is illiterate and in poor health. Notably, as referred to below, Ms. Pavao did swear an affidavit giving an undertaking as to damages.

[45] Accordingly, in my view, there are significant portions of Ms. Medeiros’ affidavit that are inadmissible or to which I would give very little weight. However, rather than going through the exercise of parsing her affidavits to determine which portions are inadmissible, my analysis of the issues below takes account of the concerns I have identified with Ms. Medeiros’ affidavits. I have tried to make clear the evidence relied on, and the basis on which I have accepted or not accepted the evidence relevant to the issues as I go through them.

Request for Mareva injunctions

Test for obtaining a Mareva injunction

[46] A Mareva injunction is available to freeze the defendants’ assets where there is a risk that the assets will be moved or dissipated to avoid judgment. It has been described as a “drastic and extraordinary”. It is recognized as extraordinary relief because the courts do not generally grant judgment before a determination of the merits of a claim: see Pugliese v. Arcuri, 2011 ONSC 3157 (Div. Ct.), at para. 18; and Furrow Systems International Ltd. v. Island Pools & Landscaping Ltd., 2014 ONSC 1428 (Sup. Ct.), at para. 9.

[47] In his decision, Justice Charney set out the test for obtaining a Mareva injunction as follows:

19 In O2 Electronics Inc. v. Sualim, 2014 ONSC 5050 at para. 67, Perell J. summarized the law relating to Mareva injunctions as follows:

For a Mareva injunction, the moving party must establish: (1) a strong prima facie case; (2) that the defendant has assets in the jurisdiction; and (3) that there is a serious risk that the defendant will remove property or dissipate assets before the judgment. A Mareva injunction should be issued only if it is shown that the defendant's purpose is to remove his or her assets from the jurisdiction to avoid judgment. The moving party must also establish that he or she would suffer irreparable harm if the injunction were not granted and that the balance of convenience favours granting the injunction. Absent unusual circumstances, the plaintiff must provide the undertaking as to damages normally required for any interlocutory injunction.

[48] In this case, there are two aspects to the plaintiff’s request for Mareva injunctive relief. First, the plaintiff requests that the moneys held in court attributable to the sale of the Dundalk Restaurant Property remain in court and, second, the plaintiff now requests that a further amount be frozen in respect of the sale of the Dundalk Working Farm.

Continuation of the Mareva injunction in respect of proceeds of sale from Dundalk Restaurant

[49] As indicated above, Justice Charney made an order freezing the sum of $235,567.90 in the Ferreira’s accounts until further court order. Ultimately, Ms. Ferreira did return some of the money orders drawn on the Pavao’s joint account, and Justice Croll reduced the amount to be frozen to $185,000, and ordered that that amount be paid into Court.

[50] As part of the relief sought on this motion, the plaintiff asks that this amount continue to be held in Court.

[51] In argument and in their factum, the Ferreira defendants did not vigorously argue that this order should be lifted, except on the basis of the more general arguments addressed and dismissed below that the statement of claim does not seek permanent injunctive relief and that the undertaking as to damages is insufficient.

[52] Neither side addressed the test that I am to apply in deciding this issue. Normally, an ex parte Mareva injunction is to be considered de novo when it comes back before a judge on notice: NAC Air LP v. Wasaya Airways Ltd., [2007] O.J. No. 4618 (Sup. Ct.), at paras. 16 and 17. In contrast, where parties seek to vary a Mareva injunction, they must meet the test in Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology, 2003 CanLII 12916 (ON SC), [2003] O.J. No. 40 (Sup. Ct.), at para. 16. In this case, the original interim relief was not obtained ex parte, but the Ferreira defendants did not have an opportunity to present responding evidence on the motion before Justice Charney. In addition, he adjourned the motion on terms, making clear that the motion was to be argued on the merits when it was returned before the Court. On this basis, I am satisfied that the matter is to be decided de novo.

[53] Based on my view of the evidence, I do not see any basis to lift or vary this aspect of the previous orders. The plaintiff’s evidence in support of freezing the amount at issue consists primarily of bank records showing that amounts from the Pavaos’ joint bank account were paid out by Ms. Ferreira to her other accounts, including the payment of $100,000 made after Mr. Pavao’s death.

[54] While Ms. Ferreira’s affidavit evidence does provide some explanations for such payments, I find that these explanations are generally self-serving, have changed over time, and lack an air of reality. In many instances, she states that she was repaying herself loans she had made to Mr. Pavao, but she provides no independent evidence of the loans.

[55] Accordingly, I agree with Justice Charney, that the plaintiff has made out a strong prima facie case in relation to the proceeds from the sale of the Dundalk Restaurant Property. I also agree with the balance of his analysis on the test for a Mareva injunction, and, in my view, the evidence put forward by the Ferreira defendants on the motion does not affect the conclusions he reached on his application of the other part of the test. For example, while Ms. Ferreira’s lawyer argued that there is no risk that the Ferreira defendants will dissipate their assets given their many properties and strong ties to Ontario, as found by Justice Charney at paragraph 20 of his reasons, the conduct at issue itself speaks to risk of dissipation.

Request for Mareva injunction with respect to proceeds from the sale of the Dundalk Working Farm

[56] In contrast, in my view, the evidence in support of an order freezing the proceeds of sale from the Dundalk Working Farm does not support a strong prima facie case. This Court has explained that a strong prima facie case is one where the plaintiff demonstrates that she is clearly right and almost certain to succeed at trial: see Quizno's Canada Restaurant Corp. v. 1450987 Ontario Corp., 2009 CanLII 20708 (ON SC), [2009] O.J. No. 1743 (S.C.J.), at para. 39.

[57] The Dundalk Working Farm was purchased by the Pavaos and Ferreiras in May 1992. At that time, the Parcel register shows that the property was a 50% joint ownership interest by the Pavaos and a 50% joint ownership interest by the Ferreiras. Ms. Pavao’s interest in the property was transferred to the Ferreiras in 2008 for $32,000, and Mr. Pavao’s interest was transferred to the Ferreiras in 2010 again for $32,000.

[58] Ms. Pavao takes the position that she was tricked into transferring her interest to Ms. Ferreira and that Mr. Pavao’s transfer was improper because it was done for no consideration. Ms. Pavao asserts that the Ferreiras sold the Dundalk Working Farm for $525,000 on September 1, 2015, and that that amount or, alternatively, half of that amount should be frozen.

[59] Ms. Ferreira’s position is that these were legitimate transactions that occurred because both Ms. Pavao and Mr. Pavao needed money at the time the transfers occurred.

[60] The difficulty with the position advanced by Ms. Pavao is that she has put forward no direct evidence on this very contentious issue. In contrast to the evidence put forward in support of the freezing order in relation to proceeds from the sale of the Dundalk Restaurant which consists of bank records, the evidence on this issue is primarily hearsay evidence about Ms. Pavao’s recollection of how she came to transfer her interest in the Dundalk Working Farm and speculation about the lack of foundation for Mr. Pavao’s transfer.

[61] With respect to Ms. Pavao’s interest, Ms. Medeiros’ evidence includes the following statements:

Ms. Pavao advises that contrary to the assertions in Ms. Ferreira’s Answer, it was actually Ms. Ferreira who approached and suggested to Ms. Pavao that Ms. Pavao should purchase a car for her son Michael, but this was not at all tied to selling a share in the Dundalk Working Farm. Ms. Pavao advises that Ms. Ferreira arranged to take her to a lawyer’s office to sign papers and that Ms. Ferreira must have paid the legal fees. Ms. Pavao advises that she had no idea what she was signing.

Ms. Pavao believes that the transaction was orchestrated by Ms. Ferreira to trick her.

Ms. Pavao says that she learned that she had transferred her share of the Dundalk Working Farm when her husband came home and began physically assaulting her for having sold part of the farm to Ms. Ferreira. (Para. 97, 98 and 100 of Ms. Medeiros’ affidavit sworn January 10, 2017.)

[62] With respect to Mr. Pavao’s interest in the property, in her affidavit, Ms. Medeiros states that Mr. Pavao’s sons believed that Mr. Pavao continued to own the property at the time their parents separated. She also states that, from her review of the Pavaos’ financial information, she has not come across any evidence that Mr. Pavao was paid for the transfer of the property.

[63] In contrast, Ms. Ferreira has provided direct evidence on this issue.

[64] With respect to the transfer to Ms. Pavao, the evidence is her affidavit is as follows:

In or about the spring of 2008, I was cutting Mrs. Pavao’s hair and she was telling me that she wished to purchase a car for her son Michael. Over the course of the discussion, Mrs. Pavao asked me if I would purchase her share of the property so that she could use the funds to buy her son a car.

Mrs. Pavao suggested the figure of $32,500.00 as a fair price for her share. We agreed on that figure as the purchase price. She was pleased with the arrangement and the transaction was completed by Mrs. Skultety.

Mrs. Pavao received the sale proceeds. She used $16,753.54 to purchase a car for her son, and kept the rest for herself.

[65] She goes on to explain that sometime later Mr. Pavao approached her about selling his interest in the Dundalk farm for the same amount, and that they agreed to the transaction which was paid for in cash. After that, Mr. Pavao continued to use the farm as a hobby farm. He harvested and sold hay from the farm, in exchange for which he paid for some of the expenses.

[66] The difficulty with the plaintiff’s request that I freeze the proceeds from the sale of the Dundalk Working Farm is that I am faced with two competing versions of how the transfers occurred, and that the evidence put forward by Ms. Pavao is hearsay evidence to which I cannot give much weight.

[67] It may turn out at trial that the plaintiff is able to support her claim for fraudulent conveyance in relation to the Dundalk Working Farm, but based on the record before me I cannot find that she has made out a strong prima facie case for the purpose of obtaining a Mareva injunction. Given that the plaintiff has not made out a strong prima facie case, it is not necessary for me to consider the balance of the test for a Mareva injunction.

Further Norwich order

[68] The plaintiff seeks extensive production from third parties relating to the Ferreiras including further banking documents and documents from the CRA. The requests go far back in time and, in some cases, the specific source of documents is not identified and the scope of the request is without parameters. For example, requests include obtaining copies of the Ferreiras’ income tax returns from the CRA from 1980 to the present and requiring “financial institutions, including the Sotto Mayor Bank … to disclose requested information and documentation relating to any accounts held or formerly held” by the Ferreiras.

[69] The plaintiff’s justification for requesting these broad orders in part is that she believes that Ms. Ferreira has defrauded her and Mr. Pavao over many years. Her primary support for this position is her view that the Ferreira’s wealth is not justified by their employment history or the amount of money they had when they immigrated to Canada in the 1970s. Therefore, she seeks third party production that would allow her to review the Ferreiras’ financial affairs over a very lengthy period of time for the purpose of identifying any potential fraud perpetrated by Ms. Ferreira.

[70] In GEA Group Ag v. Ventra Group Co., 2009 ONCA 619 (C.A.) at paras. 85 and 104, the Court of Appeal emphasized that a Norwich is “extraordinary discretionary relief”, and that it is only available where the applicant can demonstrate that the disclosure is necessary “to permit a prospective action to proceed”.

[71] In his decision, Justice Charney described the test for a Norwich order as follows:

33 In Bergmanis v. Diamond & Diamond, 2012 ONSC 5762 Perell J. summarized the requirements for a Norwich order as:

(1) the plaintiff must have a bona fide claim or potential claim against a wrongdoer; (2) the defendant to the Norwich proceeding must have a connection to the wrong beyond being a witness to it; (3) the defendant to the Norwich proceeding must be the only practical source of the needed information; (4) the interests of the party seeking the disclosure must be balanced against the interests of the defendant to the proceeding, including his or her interest in privacy and confidentiality, and any public interest that would justify non-disclosure; and (5) the interests of justice must favour obtaining the information

[72] The Ferreira defendants object to the issuance of further Norwich orders in this case in part on the basis that the litigation is no longer at the “pre-action” stage. I agree with this objection.

[73] Once the litigation has commenced, the plaintiff should follow the procedures in the Rules of Civil Procedure for obtaining documentary disclosure, including for disclosure from non parties. As held in GEA Group Ag v. Ventra Group Co, supra, at para. 104, a Norwich order “is not intended as a device to circumvent the normal discovery process mandated by the Rules of Civil Procedure”.

[74] The plaintiff argues in the alternative that she should be entitled to the third party productions requested pursuant to Rule 30.10 of the Rules of Civil Procedure. The difficulty with this position is that Rule 30.10(2) requires that notice be given to third parties. In addition, Rule 30.10(1) requires leave of the Court, and part of the test developed by the courts for obtaining leave requires the party seeking production to establish inter alia the importance of the documents to the litigation and that the documents are not otherwise available through the discovery process between the parties in the litigation: Ontario (Attorney General) v. Ballard Estate, 1995 CanLII 3509 (ON CA), 26 O.R. (3d) 39 (C.A), at para. 15.

[75] In this case, given that there has not yet been any documentary production or examination for discovery, it is not possible to determine whether leave is appropriate.

[76] Accordingly, the request for a further Norwich order is dismissed because it does not meet the stringent test for pre-litigation extraordinary relief. The request for production of documents from non-parties pursuant to Rule 30.10 is also dismissed because the plaintiff has not served the proposed non-parties and because she has not met the test for disclosure.

[77] However, my ruling on this point is without prejudice to the plaintiff’s ability to renew her request for production from third parties at a later date. I note that such a motion is to be brought before a Master.

[78] As a final point on this issue, when I indicated during argument that I was skeptical that the relief sought could be ordered at this stage of the proceedings, Ms. Pavao’s lawyer expressed concern about the preservation of further bank records from the CIBC given the age of some of the records her client is seeking. Counsel for the Ferreiras indicated that they did not have concerns with a direction to the CIBC to preserve all of the Ferreira defendants’ bank records until the completion of the litigation to ensure that they are available if an order for production is made at a later date. Accordingly, I make such an order which is more fully particularized in the conclusion.

Effect of not pleading injunctive relief

[79] The Ferreira defendants argue that Ms. Pavao is not entitled to any injunctive relief because she has failed to seek such relief in her statement of claim. In support of this argument, they rely on the decisions in Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., 1995 CanLII 10638 (ON SC), [1995] O.J. 1535 (Div. Ct.) and Laplante v. Henessy-Craibe, 2011 ONSC 5601 (Sup. Ct.) to argue that interlocutory injunctive relief is not available unless a permanent injunction is sought in the statement of claim.

[80] In my view, these cases do not stand for the broad proposition put forward by the Ferreira defendants and, in any event, this situation is distinguishable. Both cases relied on by the Ferreira defendants involved requests for mandatory injunctive relief related to the conduct of the defendants in those cases.

[81] In Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., supra, the plaintiff obtained an interlocutory mandatory injunction requiring the defendant to deal with the plaintiff as a preferred agent pending the disposition of a Competition Bureau investigation. On appeal to the Divisional Court, the Court set aside the injunction in part on the basis that the claim did not seek a permanent injunction restraining the defendant from violating the Competition Act.

[82] In Laplante v. Henessy-Craibe, supra, the plaintiff, who ran a dance studio, sought an injunction precluding the defendant from soliciting current and former students to its own studio. In denying the injunction, the motion judge relied in part on the fact that the claim did not seek a permanent injunction. In the course of his decision, the motion judge provided the following description of the principle to be gleaned from the Divisional Court’s decision in Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., supra:

20 A claim by the plaintiff for a permanent injunction in the statement of claim is a prerequisite for the granting of an interlocutory injunction. In the case of Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc. (1995), 1995 CanLII 10638 (ON SC), 23 O.R. (3d) 766, 123 D.L.R. (4th) 742 (Div.Ct.), an interlocutory injunction was set aside where there was no claim for permanent injunction in statement of claim.

[83] In my view, that paragraph has to be read in context. In both cases, it made sense to consider whether the plaintiffs were seeking permanent injunctions in deciding whether to grant interlocutory injunctions. The purpose of an injunction is to preserve the status quo in situations where there will be irreparable harm if the status quo is not preserved. It only makes sense to allow relief precluding competition or solicitation if those are in fact also permanent remedies sought in the claim.

[84] In contrast, different considerations will apply where the injunctive relief is a Mareva injunction. Mareva injunctions are available to preserve assets. Ultimately, if the plaintiff is successful, she will be entitled to payment of the moneys at issue. Therefore, in my view, as long as the other aspects of the stringent test for obtaining a Mareva injunction are met, it would be nonsensical to require plaintiffs to seek a permanent freezing order in the claim in order to obtain a Mareva injunction. A claim for payment or recovery of the amounts the plaintiff seeks to freeze is sufficient.

[85] In this case, the prayer for relief in the statement of claim, which includes the following claims, makes clear that the relief sought is the payment of moneys Ms. Pavao claims belong to her and/or Mr. Pavao:

1. The Plaintiff Maria P. Pavao (Ms. Pavao”) claims as against Zenaide Ferreira, also known as “Zenaide Ferreira” (“Ms. Ferreira”) and Jose Ferreira (“Mr. Ferreira”):

2. Damages for breach of fiduciary and/or equitable duties; breach of the duty of good faith, misrepresentation, dishonest assistance and knowing receipt, deceit, negligence, breach of contract, breach of trust, conversion, unjust enrichment and conspiracy in the amount of $10,000,000;

c) an accounting and tracing of all sums misappropriated by Mr. and/or Ms. Ferreira and an accounting of all profits from the Ferreira’s wrongful activities;

d) an accounting and tracing of all sums received by Mr. and/or Ms. Ferreira which were payments received in deceit of Ms. Pavao and/or Mr. Pavao, as described below, and an order for the payment to Ms. Pavao and the Estate of Mr. Pavao of all sums found due on the taking of the account;

f) a declaration that Mr. and Ms. Ferreira and each of them hold all sums received by them in deceit of Ms. Pavao and/or Mr. Pavao as resulting or constructive trustees for Ms. Pavao and/or Mr. Pavao, as described below, and an order that they pay those sums to Ms. Pavao and/or Mr. Pavao’s Estate;

g) an order that Mr. and Ms. Ferreira and each of them reconstitute the assets which they hold in trust for Ms. Pavao and/or Mr. Pavao’s estate and deliver up those assets to Ms. Pavao and to Mr. Pavao’s estate…

[86] Under the circumstances, there is a clear nexus between the injunctive relief sought on the motion and the relief Ms. Pavao seeks at the end of the action. Accordingly, there is no basis for dismissing the plaintiff’s motion on the basis that she has not sought a permanent injunction in her statement of claim.

[87] Given that I am not granting the Norwich orders sought, I do not need to consider whether similar considerations apply to Norwich orders.

Sufficiency of undertaking as to damages

[88] The Ferreira defendants argue that the plaintiff has failed to provide a meaningful undertaking as to damages.

[89] Rule 40.03 of the Rules of Civil Procedure requires a party who seeks injunctive relief to give an undertaking as to damages unless the Court orders otherwise:

On a motion for an interlocutory injunction or mandatory order, the moving party shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party.

[90] In this case, likely in response to the argument advanced in the Fereira defendants’ factum, the plaintiff filed an affidavit sworn by Ms. Pavao at the beginning of the motion providing an undertaking as to damages.

[91] In my view, this is sufficient. The evidence suggests that the plaintiff has some assets and income streams. In addition, at this point, the only injunctive relief that has been ordered is the payment into court of $180,000. While the defendants are entitled to an undertaking as to damages, it is hard to see how this order would cause significant, if any, damages to the Ferreira defendants, especially since by Ms. Ferreira’s own admission she has significant resources.

Certificate of pending litigation

[92] The notice of motion does not seek a certificate of pending litigation. It is only in the factum served on November 7, 2017, less than ten days before the motion was heard, that the plaintiff seeks a certificate of pending litigation. While it is not clear from the factum for which property the plaintiff seeks a certificate of pending litigation, it appears that it is in respect of the Third Dundalk Property, which is the only property Ms. Ferreira currently owns that she previously owned with Mr. Pavao.

[93] Justice Croll’s order requires Ms. Ferreira to provide notice if she decides to sell the Third Dundalk Property.

[94] The defendant objects to the request for a certificate of pending litigation in part on the basis that the prayer for relief in the statement of claim does not request a certificate of pending litigation nor does it provide a legal description of the property at issue.

[95] Rule 42.01(2) explicitly requires that a plaintiff’s claim include a request for a certificate of pending litigation and a legal description of the property at issue as a precondition to the issuance of the certificate:

A party who seeks a certificate of pending litigation shall include a claim for it in the originating process or pleading that commences the proceeding, together with a description of the land in question sufficient for registration.

[96] In this case, the statement of claim does not include a claim for a certificate of pending litigation nor does it include a description of the land at issue. Accordingly, a certificate of pending litigation cannot be issued at this time in this case: Sutton Group Professional Realty Inc. v. Stone, [2008] O.J. No. 5811 (Master), at para. 1.

[97] I note that a motion for a certificate of pending litigation is to be made to a Master. If the plaintiff were to amend her claim at a later date to address the requirement of Rule 42.01(2), such a motion should be brought to a Master and not to a judge.

[98] I also note that the Ferreira defendants did not vigorously object to the continuation of Justice Croll’s order requiring notice of any intention to sell the Third Dundalk Property, and I am therefore ordering the continuation of that aspect of her order.

Standing of estate

[99] As part of the relief sought, the plaintiff has asked to continue the action against the estate without the appointment of an estate trustee. The Ferreira defendants oppose this request.

[100] John Pavao was originally acting as estate trustee in the Estate proceedings, but he ceased doing so as part of the settlement in that matter. I note that the settlement provides that Victor, Michael or Ms. Pavao can each apply to become litigation administrator for the estate, but it appears that no such appointment has been made.

[101] It is evident that the estate has an interest in this litigation and that the issues raised by Ms. Pavao on her own behalf are intertwined with the interests of the estate. Ms. Pavao has her own interest in any moneys that Ms. Ferreira may have improperly taken. However, part of her interest is also dependent on the estate’s interests. Therefore, it is evident that in order to fully determine the issues between all parties, Mr. Pavao’s estate is a necessary party to the proceedings.

[102] Unfortunately, neither counsel for Ms. Pavao nor counsel for Victor and Michael has provided me with any authority that would allow me to grant the relief requested. Similarly, counsel for the Ferreira defendants opposed this relief but did not provide any authorities on point. It is clear from the relief sought in the action, that some of the relief is sought on behalf of the estate. I am not aware of any authority that gives Victor and Michael standing to represent the estate as beneficiaries, nor am I aware of any basis on which the estate can be a party without the appointment of an estate trustee.

[103] Accordingly, I am requiring that, as provided in the settlement of the Estate proceeding, one of Ms. Pavao, Michael or Victor bring an application to be appointed as estate trustee within 60 days of this decision. If this timeline is not practical or if the parties wish to have me reconsider this part of my decision, and only this part, a request may be directed to my attention within 30 days of this decision after which I will set a procedure and schedule for addressing this issue.

Consolidation of proceedings

[104] The plaintiff asks that this action be consolidated with the FLA proceedings. The Ferreira defendants object to this request on the basis that they are not parties to the FLA proceedings, and that the issues in both proceedings are distinct.

[105] I agree that consolidating the proceedings does not make sense. However, the resolution of the FLA proceedings (and the Estate proceedings for that matter) are dependent on the outcome of Ms. Pavao’s claim against the Ferreira defendants. Accordingly, there is some benefit in having the cases proceed sequentially and in an orderly fashion.

[106] At the end of the motion, I asked the parties’ counsel what could be done to assist in moving these matters forward. My question was prompted by my observation that the action was commenced in early 2017, and that the motion before me was not heard until November 2017. In the interim, the parties were tied up on this motion rather than advancing the action through the exchange of affidavits of documents, examinations for discovery and motions for third party productions under Rule 30.10. All counsel agreed that this matter would benefit from active case management. I agree. However, pursuant to Rule 77.05, a request for Case Management must be made to the Regional Senior Judge, and I therefore do not have the authority to order these cases into case management. Nevertheless, I encourage the parties to make such a request and to make reference to my decision in the request.

Conclusion

[107] For the reasons set out above, I make the following order:

a. The order of Justice Charney dated January 19, 2017 and the order of Justice Croll dated April 18, 2017 are continued until further order of this Court;

b. The CIBC is directed to preserve all existing records from all current and former accounts of the defendants Zenaide Ferreira and Jose Ferreira until further order of this Court or until this litigation is concluded;

c. Ms. Pavao, Michael and/or Victor are to make an application to be appointed as estate trustee of Mr. Pavao’s estate within 60 days of this decision, or, alternatively, the parties may request a reconsideration of this aspect of my decision by no later than 30 days from the date of the release of this decision; and

d. The balance of the motion is dismissed.

[108] Given the divided success on the motion, I direct the plaintiff to provide me with written submissions no longer than five pages on the issue of costs within 10 days of the release of this decision, and I direct the defendants to provide me with their written submissions no longer than five pages 10 days following the receipt of the plaintiff’s submission.

FAVREAU J.

RELEASED: March 7, 2018

COURT FILE NO.: CV-17-568933

DATE: 20180307

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

MARIA P. PAVAO

Plaintiff

– and –

ZENAIDE FERREIRA, ALSO KNOWN AS ZENAIDA FERREIRA, JOSE FERREIRA, THE ESTATE OF LUIS C. PAVAO, DECEASED, VICTOR PAVAO, IN HIS CAPACITY AS BENEFICIARY OF THE ESTATE OF LUIS PAVAO, AND MICHAEL PAVAO, IN HIS CAPACITY AS BENEFICIARY OF THE ESTATE OF LUIS PAVAO

Defendants

REASONS FOR JUDGMENT

FAVREAU J.

RELEASED: March 7, 2018