Court File and Parties
COURT FILE NO.: CV-15-4753-00 DATE: 20181012 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MAHADAI SINGH et al, Plaintiffs AND: CARLOS GOUVEIA et al, Defendant
BEFORE: Justice Irving André
COUNSEL: P. Cho, for the Plaintiffs L. Matthews and A. Daley, for the Defendant
HEARD: July 11, 2018
Endorsement
[1] The plaintiff moving party seeks an order for a Certificate of Pending Litigation (“CPL”) to be registered against the residence of Mr. Carlos Gouveia, the defendant in the application. The defendant opposes the application on the ground that it does not meet the applicable legal test.
Background Facts
[2] On November 30, 2014, Mr. Gouveia reversed his vehicle onto the driveway of Ms. Singh’s residence and struck Ms. Singh, who was loading items into the trunk of her parked vehicle. She suffered permanent and catastrophic injuries including a right-leg fracture that required an above-knee amputation and a left-hip fracture that required surgery.
[3] Ms. Singh filed a Statement of Claim against Mr. Gouveia on October 20, 2015, and a Third Party Application against Mr. Gouveia’s insurance company. The defendants filed a Third Party claim against Ravi Singh. These other claims have all been dismissed.
[4] Ms. Singh required significant home care attention after she was discharged from the hospital on April 30, 2015, including 24-hour supervision. She received $6,000 a month from her insurance company. Mr. Gouveia has Third Party Liability Coverage with a $1,000,000 limit. There is no further Third Party Liability Coverage to cover Ms. Singh’s ongoing home care needs.
[5] Ms. Singh has received a full and final settlement of her accident benefits claim with TD Insurance in the amount of $1,107,715.77 in medical rehabilitation benefits, $858,036.51 in attendant care benefits and $84,300 in housekeeping and home maintenance benefits.
[6] Ms. Singh seeks to place a CPL on Mr. Gouveia’s home, given her significant future care needs, the losses she has suffered, and the limited insurance coverage Mr. Gouveia has.
Analysis
[7] This application raises the following issue:
- Should the court place a CPL on Mr. Gouveia’s home?
The Law
[8] Section 103(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that:
The commencement of a proceeding in which an interest in land is in question is not notice of the proceeding to a person who is not a party until a certificate of pending litigation is issued by the court and the certificate is registered in the proper land registry office under subsection (2).
What is the test required for the issuance of a CPL?
[9] In the 2017 Ontario Superior Court Practice, T. Archibald et al. eds. (Toronto: LexisNexis 2017), at page 332, the authors note that:
For a CPL to be granted, there is a two-step test. The first prong of that test is whether there is sufficient evidence to establish a reasonable claim to an interest in the land based on facts upon which the plaintiff could succeed at trial. The threshold for demonstrating whether there is a triable issue is low. Where reasonable claims are made for a constructive trust or a fraudulent conveyance in respect of a property, a CPL may be issued pending trial. The second prong is if so, what are the equities between the parties as to the appropriateness of granting the order?
[10] In Perruzza v. Spatone, 2010 ONSC 841, [2010] O.J. No. 493, the court noted at para. 20 that:
(i) The test on a motion for leave to issue a CPL made on notice to the defendants is the same as the test on a motion to discharge a CPL (Homebuilder Inc. v. Man-Sonic Industries Inc., 1987 CarswellOnt 499 (S.C. - Mast.) ("Homebuilder") at para. 1 );
(ii) The threshold in respect of the "interest in land" issue in a motion respecting a CPL (as that factor is set out at section 103(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43) is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed (1152939 Ontario Ltd. v. 2055835 Ontario Ltd., 2007 CarswellOnt 756 (S.C.J.), as per van Rensburg J., citing Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen. Div. - Comm. List) at para. 62);
(iii) The onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL has "a reasonable claim to the interest in the land claimed" (G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 CarswellOnt 219 (C.A.) at para. 20 );
(iv) Factors the court can consider on a motion to discharge a CPL include (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (S.C. - Mast.) at paras. 10-18 ); and
(v) The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted or vacated (931473 Ontario Ltd. v. Coldwell Banker Canada Inc., 1991 CarswellOnt 460 (Gen. Div.); Clock Investments Ltd. v. Hardwood Estates Ltd., 1977 CarswellOnt 1026 (Div. Ct.) at para. 9 ).
[11] In Lancorp Construction Co. v. Royal Vista Homes (Weston) Ltd., [2008] O.J. No. 4698, the court noted at para. 19 that “a CPL should be available only in limited circumstances and should generally not be used as a form of execution before judgment.” Similar sentiments have been expressed in Bowbriar Investments Inc. v. Wellesley Community Homes Inc., [1977] O.J. No. 66 (H.C.J.) and Waxman v. Waxman, [1991] O.J. No. 89 (Gen. Div).
Application of the Law to the Facts
[12] The defendant maintains that the issuance of a CPL is an extraordinary relief in a personal injury matter and one that is rarely granted where the plaintiff has no interest in the land in question. The defendant maintains that the plaintiff’s motion should be dismissed because it fails the second prong of the text established in Perruzza, at para. 20.
[13] In Perruzza, the court noted that a party with an “interest in land” as under s. 103 of the CJA need only show a triable issue as to such interest. They need not demonstrate their action is likely to proceed.
Does Ms. Singh have a reasonable interest in Mr. Gouveia’s property, such that this interest should be protected by the issuance of a CPL against Mr. Gouveia’s property?
[14] To satisfy this requirement, I must conclude that there is, at the very minimum, a triable issue concerning whether or not Ms. Singh has a reasonable interest in Mr. Gouveia’s property. Ms. Singh has no ownership interest in the property in question. She has not challenged Mr. Gouveia’s title to his property. She is not a creditor to whom Mr. Gouveia owes money. In the circumstances of this case, I am unable to conclude that there is a triable issue regarding whether or not Ms. Singh has a reasonable interest in Mr. Gouveia’s property.
[15] That said, there appears to be conflicting authority concerning the issuing of a CPL in cases involving a claim for damages. For example, in Canada (Attorney General) v. Lanart, [1936] O.W.N. 285 (Ont. H.Ct.J.) the Crown obtained a certificate over the defendant’s property in advance of a fraud case. Riddell J.A. vacated the certificate, explaining that the Crown could not lay claim to any interest in the land before obtaining a favourable judgment. See also Toronto Dominion Bank v. Zukerman (1982), 40 O.R. (2d) 724 (H.Ct.J.).
[16] However, in Ahmed v. Rowe, 2017 ONSC 2289 where, in an action for personal injuries resulting from an automobile accident, the defendant transferred his interest in his matrimonial home for no consideration in the face of a claim for damages for approximately $20,000,000. The plaintiffs obtained a CPL and registered it against the title to the matrimonial home. This was not challenged on appeal.
[17] The Ahmed case however, is distinguishable from this case given what appeared to have been a fraudulent conveyance of the matrimonial home. There is no such transaction in this case. Carlos Gouveia has owned his home for decades. There is no evidence that he has tried to sell his home.
[18] Additionally, the plaintiff has already received approximately two million dollars following the tragic accident. It is unknown whether, even if successful at trial, she will receive an additional amount for health care expenses. Indeed, Ms. Singh has not served Mr. Gouveia with any future cost of care or future loss of income reports which would give some indication that her damages would exceed the monetary benefits she has already received. There is insufficient evidence in this case to establish a reasonable claim to an interest in the land, based on the facts upon which the plaintiff could succeed at trial.
[19] The fifth prong of the Perruzza test requires this court to exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted. There is no evidence that Mr. Gouveia has engaged in or attempted to engage in any type of fraudulent conveyance of the property. I am unable to determine whether Ms. Singh, if successful at trial, would receive a sum of money over and above what she has already received. Additionally, the 82-year-old Mr. Gouveia jointly owns the subject property with his wife. Registering a CPL against the property would not only affect Mr. Gouveia’s interest; it would also affect his wife’s interest in the subject property as well.
[20] For these reasons, I am not prepared to exercise my discretion in equity and grant the request for a CPL.
Conclusion
[21] The plaintiff’s motion is denied.
Costs
[22] The plaintiff is seeking costs of $6,633.29 on a partial indemnity basis while the defendant is seeking costs of $9,112.09 on a similar basis. The defendant however, would not feel aggrieved if no costs are awarded in the event that he prevails in this matter.
[23] Given the catastrophic injury suffered by the plaintiff and the need to litigate this issue prior to a trial, I am not prepared to award costs against her. Accordingly, there will be no costs award in this matter.