Court File and Parties

COURT FILE NO.: CV-16-551020 DATE: 20190214 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID AVAN Plaintiff/Responding Party

-and-

ALBERTO BENARROCH, MONIQUE ABITBOL, CARLOS ABITBOL and SARA ABITBOL Defendants/Moving Parties

BEFORE: Regional Senior Justice Fuerst

COUNSEL: John Philpott, counsel for the Plaintiff/Responding Party, David Avan Stephen Brunswick, counsel for the Defendants/Moving Parties, Monique Abitbol, Carlos Abitbol and Sara Abitbol

HEARD: In Writing

Endorsement

[1] Monique Abitbol (“Monique”) and her parents Carlos Abitbol (“Carlos”) and Sara Abitbol (“Sara”) seek to transfer a civil action in which they are named as defendants, from Toronto to Newmarket.

[2] The action was commenced in Toronto in April 2016 by David Avan (“Avan”). In addition to the Abitbols, he named Alberto Benarroch (“Benarroch”) as a defendant. The action concerns a series of loans Avan asserts he made to Benarroch of which he seeks repayment, and includes claims against the Abitbols for their alleged unlawful usurpation of the proceeds of the loans. Benarroch was married to Monique during the relevant time period.

[3] Avan obtained default judgment against Benarroch. The action remains outstanding against the Abitbols. They contend that the loans are not true loans, and that in any event they owe no obligation to Avan.

[4] In October 2015, Benarroch issued a family law Application in Newmarket, seeking a divorce from Monique, equalization of net family property, custody of their children, and other relief. He also named Carlos and Sara as respondents, with respect to the proceeds of the sale of a property and repayment of a loan he says he made to them.

[5] Benarroch asserted in his Application that he used the loans from Avan to purchase investment properties that he put in the names of Monique or Carlos, and over which he asserts a constructive or resulting trust interest.

[6] In her Answer in the family law proceeding, Monique alleged that Benarroch is the legal or beneficial owner of properties, investments and businesses worldwide that are worth in “the high tens if not hundreds of millions of dollars” and which produced “millions of dollars capital and income each year” that flowed to her and the children. She added to the proceeding as respondents a number of individuals and corporate entities, none of whom are resident in Canada. She claimed that Benarroch is the beneficial owner of these entities and that the individuals are holding the entities in trust for him.

[7] Monique also alleged in her Answer that the loans by Avan to Benarroch are not truly loans.

[8] By this motion, Monique, Carlos and Sara seek to transfer Avan’s civil action from Toronto to Newmarket on the basis that the legitimacy of the Avan loans is a factual and legal issue that is common to the civil action and the family law proceeding, and that the matters should be heard together or one after the other, in Newmarket.

[9] Avan opposes the motion to transfer. His position is that the civil action deals with a series of discrete transactions, that the matter of the initial debt to Benarroch has been settled as default judgment was obtained against Benarroch, and that the remaining claims against the Abitbols are not at issue in the family law litigation, which is complex and promises to be a drawn out proceeding to which he is not a party.

[10] Some of the respondents who Monique added to the family law proceeding join Avan in opposing the motion to transfer.

[11] I adopt the following summary of legal principles set out by Himel J. in Samuel v. Kearley, 2015 ONSC 4784, at para. 11:

A plaintiff has a prima facie right to select a venue for an action. The plaintiff does not have to justify that the choice made is a reasonable one. Rather, if the other party is of the view that the choice is unreasonable, it may bring a motion to change the venue. The onus is on the moving party to show that it is “in the interest of justice” to transfer the action having regard to the factors outlined in rule 13.1.02(2)(b) of the Rules of Civil Procedure. The court is to consider a “holistic” application of the factors outlined in the rule to the specific facts of the case: see Chatterson v. M&M Meat Shops Ltd., 2014 ONSC 1897 (Div.Ct.) at para. 22; Hallman v. Pure Spousal Trust (Trustee of), 80 C.P.C. (6th) 139 (Ont. S.C.) at para. 28. No one factor is more important than another. Rather, the court is to look at all the factors and balance them in order to decide whether a transfer is “desirable in the interests [sic] of justice”. The moving party must show that the proposed place of trial is not only better, but is significantly better, than the plaintiff’s choice of trial.

[12] Applying this approach, I am not satisfied that the moving parties have shown that it is in the interest of justice to transfer the civil action from the venue chosen by Avan. Even if there is any commonality of issue in the civil action and the family law proceeding now that default judgment has been obtained against Benarroch, the Avan loans form a very small part of the matters in issue in the family law proceeding. This is evidenced by the fact the loans are referenced in 2 of the 206 paragraphs of Monique’s Answer filed in the family law proceeding. It makes little sense to require Avan to litigate his claim against the Abitbols as part of a complex, expensive, multi-party family law proceeding that involves numerous issues in which he has no interest, including child custody and equalization. Nor does it make sense to require him to wait for the conclusion of a complex family law proceeding before he can pursue his much more limited and seemingly more straight-forward claim against Monique, Carlos and Sara.

[13] As defendants to Avan’s civil action, Monique, Carlos and Sara will have full opportunity to respond to his claims against them.

[14] The motion is dismissed.

[15] If the parties are unable to agree on costs, they may file written submissions limited to two pages per party, according to the following timetable: Avan by March 6, 2019, and the Abitbols by March 20, 2019.

Regional Senior Justice Fuerst Released: February 14, 2019