COURT FILE NO.: CV-18-4247

DATE: 2019 10 02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NELUM ATTANAYAKE and JENNIFER ANNE MIRMALEE

Applicants

– and –

FAWZIA MARY MIKHAIL

Respondent

M. Whiteley, for the Applicants

Self-Represented

HEARD: September 9, 2019

REASONS FOR JUDGMENT

Doi J.

Overview

[1] The Applicants paid more than $1.3 million to purchase a property under a power of sale. They now seek to obtain registered legal title to the property and other corollary relief to remedy certain technical failures arising from the power of sale which kept title with the Respondent. As explained below, I find that the Applicants clearly are entitled to the relief sought because the Respondent was unjustly enriched. Accordingly, the Application is granted.

Background

[2] On or about September 4, 2015, the Respondent entered into an agreement of purchase and sale to acquire a property, municipally known as 8 Cranbrooke Court in Brampton (the “Property”) from Linda Hill, who was the former registered owner until December 30, 2015.

[3] After the Respondent found herself unable to complete the sale, the closing was deferred to December 31, 2015 when a $900,000.00 first mortgage in favour of Computershare Trust Company of Canada was registered on title. In addition, Ms. Hill and Paul Mitchell, a co-mortgagee, gave a $373,233.12 vendor take back mortgage (“VTB”). The VTB was not registered on title until August 6, 2016.

[4] The Respondent defaulted on the VTB. On November 7, 2016, Ms. Hill and Mr. Mitchell delivered a notice of sale under mortgage and commenced mortgage enforcement proceedings against the Respondent and her son, Michael Mikhail, who had guaranteed the VTB. By Order dated July 20, 2017, Justice Donohue granted summary judgment to Ms. Hill and Mr. Mitchell which gave them possession of the property in order to sell it and apply the proceeds of sale to the amount owing. On April l9, 2018, the Court of Appeal upheld Donohue J.’s decision.

[5] On November 24, 2017, the Applicants entered into an arms-length agreement of purchase and sale with Ms. Hill and Mr. Mitchell to buy the Property for $1.305 million. The Applicants secured mortgage financing from TD Bank for $662,500.00 and sourced the balance of the purchase price themselves. On December 28, 2017, the Applicants paid the full amount of the purchase price to the seller’s lawyer and concluded the transaction. The purchase funds delivered to the vendors’ lawyer were used to discharge the Computershare first mortgage and the VTB.

[6] Subsequently, the Applicants learned that the power of sale transaction had failed due to a technical irregularity because the vendors’ lawyer had discharged the VTB before registering the transfer of title to the Applicants and registering the TD mortgage. Accordingly, title to the Property was not transferred to the Applicants, nor was the TD mortgage registered on title. As a result, the Respondent (i.e., who had been the defaulting borrower) retained title to the Property that became unencumbered after the Computershare mortgage and the VTB were paid out and discharged on closing.

[7] Following the failed power of sale transaction, the Land Registry Office (“LRO”) froze the PIN to the Property to prevent a party from retrieving the parcel register or registering anything on title until the situation could be resolved. The LRO subsequently advised that the title issue could be corrected by having the Respondent agree to transfer title to the Property to the Applicants, or alternatively by court order.

[8] The Applicants made many unsuccessful attempts to communicate with the Respondent to transfer title to the property co-operatively. Then, on October 5, 2018, the Applicants commenced this proceeding. On October 10, 2018, the Respondent advised that she was declining to transfer the Property to the Applicants and litigation ensued.

[9] In late December 2018, the LRO advised the Applicants that it would not indefinitely freeze title to the Property. On January 28, 2019, a caution was registered on title to the Property with an expiry date of March 28, 2019. On March 18, 2019, Justice Coroza granted leave for the Applicants to issue a certificate of pending litigation on title to the Property, which was registered on title on March 20, 2019.

The Proceedings

[10] On September 9, 2019 when this application was heard, Michael Mikhail appeared on behalf of the Respondent to request an adjournment of the hearing for the purpose of retaining counsel or arranging for a litigation guardian. Mr. Mikhail is not a lawyer. Given the history of this matter, I declined to adjourn and proceeded to hear the application.

[11] Originally, this application returned on December 13, 2018 before Justice Barnes who ordered a timetable for the parties to deliver materials, conduct examinations and then argue the case on May 13, 2019. Barnes J. also directed a hearing on January 8, 2019 so that Michael Mikhail could seek leave to represent his mother, the Respondent, whom he described as being unwell. On January 8, 2019, Justice Harris denied leave for Michael Mikhail to represent the Respondent and expressly indicated that arrangements should be made for either a litigation guardian or a lawyer to act for her. As a courtesy, Applicants’ counsel provided Mr. Mikhail with a copy of Harris J.’s endorsement.

[12] The Respondent did not follow Barnes J.’s timetable, did not deliver materials, and did not arrange for a litigation guardian or a lawyer to act for her despite Harris J.’s endorsement.

[13] On May 13, 2019, the scheduled hearing did not proceed because the justice who had been scheduled to hear the matter was unable to be present. On that occasion, the Respondent’s husband, Adly Mikhail, appeared before Justice Stribopoulos to ask for an adjournment so that arrangements could be made to appoint a litigation guardian for the Respondent. In his endorsement that day, Stribopoulos J. suggested that the parties consult the Office of the Public Guardian and Trustee about a litigation guardianship appointment and directed them to contact RSJ Daley to secure a new return date for the hearing of this application.

[14] On May 13, 2019, the Applicants forwarded a copy of Stribopoulos J.’s endorsement to the Respondent as a courtesy.

[15] On May 22, 2019, the Applicants served the Respondent with a Request for Appointment of Litigation Guardian dated May 21, 2019. No response was received.

[16] On May 27, 2019, the Applicants wrote to the Office of the Public Guardian and Trustee to ask whether it wished to be involved in this proceeding on behalf of the Respondent. The Applicants’ letter enclosed Stribopoulos J.’s endorsement of May 13, 2019, its Request for Appointment of Litigation Guardian dated May 21, 2019, and further background materials in this matter. Subsequently, on July 3, 2019, the Applicants served the Office of the Public Guardian and Trustee with a complete set of the application materials in this proceeding and advised that the matter was to be returned on September 9, 2019 following scheduling consultations with RSJ Daley. No response was received.

[17] Furthermore, on July 3, 2019 the Applicants delivered a full set of all correspondence in this application to Michael Mikhai. On July 12, 2019, RSJ Daley corresponded with the parties and Michael Mikhail to confirm the September 9, 2019 return date for the hearing of the application. On July 15, 2019, the Applicants sent a further copy of RSJ Daley’s July 12, 2019 letter to the Respondent, Adyl Mikhail and Michael Mikhail in order to ensure confirmation of the September 9, 2019 return date. There was no response to this correspondence.

[18] The Applicant also communicated with the various creditors that had an interest in this matter and provided them with updates regarding the litigation.

[19] On August 30, 2019, the Applicants formally confirmed the September 9, 2019 hearing return date for this application and copied the Respondent and Michael Mikhail with a copy of the hearing confirmation form that was filed with the court. No response was received.

[20] On September 9, 2019, Michael Mikhail and Adly Mikhail appeared in court. At the outset of the hearing, Michael Mikhail advised the court that he had been away and occupied with caring for the Respondent which had left him unable to respond to the above-described correspondence or otherwise deal with the Respondent’s representation in this litigation. He then asked the court to adjourn the hearing to arrange for a lawyer or a litigation guardian to represent the Respondent.

[21] Given the context of this case, I declined to adjourn. Having carefully considered the particular circumstances of this proceeding, I found that the Respondent and her family had been afforded ample opportunity to address the matter of her representation in this proceeding. Unfortunately, neither the Respondent nor her family members who appeared on her behalf took any apparent steps to appoint a litigation guardian or counsel to act for her, despite the Applicants’ many attempts to engage them on this point and the court’s various admonitions on the issue of the Respondent’s representation. I also weighed the Applicant’s strong interest in having this matter determined, which was evident from its efforts to engage and inform interested third parties, in order to rectify the issues in this case as effectively as possible. As such, I determined that it would be in the interests of justice to proceed to hear the application. Further to Harris J.’s earlier decision of January 8, 2019, I also accepted that Michael Mikhail could not properly represent the Respondent as he lacked requisite status to do so: Ontario (Attorney General) v. $229,345 in Canadian Currency, 2010 ONSC 3428 at para 6; Rebello v. The Bank of Nova Scotia, 2018 ONSC 4776 at para 41.

Analysis

a. Technical Failure of the Conveyance to the Applicants

[22] A mortgagee exercising a power of sale has the authority to convey title to the property to the purchaser pursuant to s.28 of the Mortgages Act, RSO 1990, c. M40, as amended, which states:

The person exercising the power of sale has power to convey or assign to and vest in the purchaser the property sold for all the estate and interest therein of the mortgagor and of which the mortgagor had power to dispose.

Once the mortgagee enters into a binding agreement of purchase and sale in a power of sale situation, the mortgagor loses the right to redeem the mortgage and prevent the sale: Moravec v. Chisos Investment Co., 1997 CarswellOnt 546 (SCJ) at para 7.

[23] Pursuant to Donohue J.’s order and s.28 of the Mortgages Act, the mortgagees, Ms. Hill and Mr. Mitchell, were entitled to sell the Property and convey the fee simple to the Applicants. The Respondent did not redeem the VTB, and the mortgagees’ efforts to enforce the VTB were affirmed by the Court of Appeal. As such, the Respondent’s ability to prevent the sale was extinguished.

[24] However, in this case, the VTB was discharged from title prior to the registration of the transfer of title to the Applicants. As a result of this, the legal instrument (i.e., the VTB) that gave the mortgagees the power under s.28 of the Mortgages Act to convey title to the Applicants was prematurely removed. Notably, a transfer under power of sale requires the existence of the charge or the “source document” that has been defaulted upon to be a registered document on title when the transfer is registered: McConnell, Document Registration Guide, 20th ed. (2019, LexisNexis Toronto) at ¶31,663. Among other things, a transfer under power of sale must reference the source document and identify the instrument number of the charge under which the default took place: Ibid, and s.20 the Electronic Registration Regulation, OReg 19/99, made pursuant to the Land Registration Reform Act, RSO 1990, cL4, as amended. Once the transfer is registered on title, the charge under which the default took place is expunged automatically. In this case, the VTB was discharged in error before the transfer of title was registered. As a result, the transaction to transfer title to the Applicants failed, but not before they had provided $1.305 million to the mortgagees’ lawyer who used the funds to discharge the Computershare mortgage and the VTB. As a result, the Respondent (i.e., who had defaulted on the VTB) retained title to the Property that had become wholly unencumbered.

b. Unjust Enrichment

[25] For the following reasons, I find that the Applicants have made out the requisite elements to show that the Respondent was unjustly enriched at their expense.

[26] The doctrine of unjust enrichment applies when a party receives a benefit from another in circumstances where it would be “against all conscience” to retain that benefit. Where this is found to be the case, the receiving party will be obliged to restore the benefit to the other because justice does not permit it to be retained: Moore v. Sweet, 2018 SCC 52 at paras 35-36. To successfully invoke the doctrine of unjust enrichment, an applicant must show that: (a) the respondent was enriched; (b) the applicant suffered a corresponding deprivation; and (c) the enrichment and corresponding deprivation occurred without a juristic reason: Moore at para 37. This “principled approach” to unjust enrichment is flexible to allow courts identify circumstances where justice and fairness require a party to restore a benefit to another: Moore at para 38.

[27] As a result of the failed transaction as explained above, I readily find that the Respondent was enriched by her retention of registered ownership of the Property. It is clear from Donohue J.’s order granting the mortgagees summary judgment, which was affirmed on appeal, that the mortgagees were entitled to enforce the VTB against the Respondent. It is also clear that the Respondent lost her ownership of the Property in fee simple after she defaulted on the VTB and failed to redeem before the mortgages entered into the agreement of purchase and sale with the Applicants. Due to the failed transaction, the Respondent remained as the registered owner with greater equity in the Property than she ever had at any time prior to the power of sale. This led the Respondent to realize a $1.305 million windfall when she came to hold unencumbered registered title for the Property. In addition, the Respondent was enriched further by the Applicants’ renovations and improvements to the Property that further increased its value. Clearly, the Respondent was enriched by the failed transaction: Moore at para 37.

[28] In contrast, the Applicants were deprived of a corresponding benefit. They paid the full $1.305 million purchase price for the Property and fulfilled their obligations under their agreement of purchase and sale with the mortgagees. But owing to the failed transaction, the Applicants were unable to have fee simple registered ownership of the Property for which they had contracted. I have no hesitation in finding that the Applicants suffered a corresponding deprivation that clearly relates to the Respondent’s gain, which came at their expense: Moore at paras 41 and 43-44.

[29] I also readily find that there is no juristic reason for the Respondent’s enrichment. The Respondent defaulted on the VTB. The mortgagees successfully brought enforcement proceedings. The Applicants paid, and continue to pay, for the use and enjoyment of the Property that remains in the Respondent’s name due to a technical error in processing the power of sale, which was otherwise an unremarkable real estate transaction between arms-length parties for valuable consideration. The Respondent had no reasonable expectation that she would maintain any ownership interest in the Property, apart for the technical error. There is simply no reason in law or justice to require or permit the Respondent’s enrichment, or to deny recovery to the Applicants: Moore at paras 54-58. Accordingly, I find that the Respondent was unjustly enriched.

c. Constructive Trust

[30] Having found that the Respondent was unjustly enriched at the expense of the Applicants, I now turn to consider whether the appropriate remedy is a constructive trust in their favour. For the following reasons, I find that a remedial constructive trust should be imposed for the benefit of the Applicants.

[31] A remedy for unjust enrichment is restitutionary in nature and will take the form of either a personal or a proprietary remedy. A personal remedy is essentially a debt or monetary obligation that, in most cases, sufficiently achieves restitution: Moore at para 89. In certain cases, however, a proprietary remedy may be ordered to enforce rights against a particular piece of property. To this end, the most pervasive and important proprietary remedy for unjust enrichment is the constructive trust, which is a broad and flexible equitable tool to permit courts to consider the context of a case to determine a party’s beneficial entitlement: Moore at para 90. A court will impress a disputed property with a constructive trust only if an applicant proves two (2) things: (a) first, that a personal remedy would be inadequate; and (b) secondly, that the applicant’s contribution that founds the proceeding is linked or causally connected to the property over which a constructive trust is claimed. Even where the court finds that a constructive trust would be an appropriate remedy, it will be imposed only to the extent of the applicant’s proportionate contribution (direct or indirect) to the acquisition, preservation, maintenance or improvement of the property: Moore at para 91.

[32] On the facts of this case, I find without hesitation that a personal remedy or monetary award would be a wholly inadequate remedy for the Applicants as it would essentially permit a highly irregular situation to continue with respect to the title of the Property, which is their residential home. Any remedy other than a constructive trust would wholly undermine the Applicants’ future ability to sell the Property, for which they fully paid fair market value and have undertaken renovations. To this end, the essence of this application is to correct title on the Property, such that the Applicants do not seek to claim damages.

[33] In any event, it appears from the evidentiary record on this application that the Respondent is incapable of paying a damages award, which likely could be satisfied only by a sale of the Property which the Applicants own and live in. I accept that any such result would clearly be unjust and inequitable.

[34] In my view, impressing the Property with a constructive trust in favour of the Applicants is warranted in this case. I find that a constructive trust is the only remedy that will restore them to the position they would have enjoyed but for the technical failure of the transaction.

[35] A property interest arising under a constructive trust may be recognized retrospectively as having come into existence not when the trust is judicially declared but from the time when the unjust enrichment first arose: Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 SCR 70 at para 41; Stevens v. Stevens, 2006 CanLII 23141 (ON CA), [2006] OJ No 2755 (CA) at paras 12 and 15. The date when a constructive trust arises is now generally accepted to be the date upon which a duty to make restitution occurs: Ibid. Applying this reasoning, I find that the constructive trust favouring the Applicants should be recognized from the date the unjust enrichment began on December 28, 2017 (i.e., when the failed transaction closed).

[36] As the absolute beneficial owners of the Property, the Applicants are entitled to an order requiring the constructive trust to be collapsed for their benefit and vesting legal title to them in their names: LaForest, Anger & Hornsberger, Law of Real Property (3d) at §11:90.20(a); Third Eye Capital Corporation v. Ressources Dianor Inc., 2018 ONCA 253 at para 111; Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 2000 CanLII 16991 (ON CA), 51 OR (3d) 641 (CA) at paras 280-281.

d. The Writs of Execution Do Not Attach

[37] There are writs of execution registered on the Property in respect of debts owing by the Respondent and/or her son, Michael Mikhail. For the reasons that follow, I find that none of these writs properly attach to the Property and that the Applicants are entitled to have title to the Property free and clear of these writs.

[38] Subsection 99(2) (Effect of sale on charge) of the Land Titles Act, RSO 1990, c. L.5, provides:

Upon the registration of a transfer under subsection (1) and upon satisfactory evidence being produced, the land registrar may delete from the register the entry of an instrument or writ appearing to rank subsequent to the charge under which the land is sold, and thereupon the interest of every person claiming under such subsequent instrument or writ ceases to affect the land.

[39] One of the writs of execution, Execution No. 17-0003815, was filed on October 30, 2017 by creditors seeking to recover judgment against the Respondent and Michael Mikhail. Pursuant to ss. 99(2) of the Land Titles Act, this writ ranks below the charge under which the land was sold to the Applicants and, therefore, does not affect the Property.

[40] The other writs of execution, also seeking to recover judgment against the Respondent and/or Michael Mikhail, were filed on the Property after the failed transaction took place on December 28, 2017. It is well-established that an execution creditor may claim only an interest which the debtor had in the land: Gibb v. Jiwan, [1996] OJ No 1370 (GenDiv) at paras 10-11 and 15, citing Wilkie v. Jellett (1896), 1896 CanLII 49 (SCC), 26 SCR 282 and T.M. Ball Lumber Co. v. Zirtz, 1961 CanLII 62 (SCC), [1961] SCR 310. A judgment creditor cannot enforce a claim under a writ against a registered owner that is only a trustee for the purchaser: Gibb at para 15; Robinson v. Moffatt (1916), 1916 CanLII 576 (ON CA), 37 OLR 52 (CA). As such, and based on the facts of this case, I find that these other writs of execution do not rank higher in priority to the Applicants’ earlier beneficial interest in the Property: Stevens at paras 25-26. Accordingly, I find that the Applicants have priority to these other writs of execution that were filed after the failed transaction on December 28, 2017.

e. Equitable Subrogation of the TD Mortgage

[41] Generally, an equitable subrogation of a mortgage is described as:

a discretionary equitable remedy invoked when a person discharges the obligation of another, but having done so, has no right of action against the debtor to enforce the debt the person has paid. It is a principle of fairness, invoked where it is prejudicial not to do so, and in doing so there is no prejudice to others.

TD Bank v. Yousefie, 2016 ONSC 5991 at para 20.

[42] In the seminal case of Crosbie-Hill v. Sayer, [1908] 1 Ch. 866, the equitable subrogation of a mortgage was found (at 877) to arise in the following context:

… where a third party, at the request of a mortgagor pays off a first mortgage with a view to becoming himself a first mortgage of the property, he becomes, in default of evidence of intention to the contrary, entitled in equity to stand, as against the property, in the shoes of the first mortgagee.

See also Midland Mortgage Corp. v. 784401 Ontario Ltd. (1997), 1997 CanLII 1946 (ON CA), 34 OR (3d) 594 (CA) at paras 14-16; and Mutual Trust Co. v. Creditview Estate Homes Ltd. (1997), 34 OR 93d) 583 (CA) at paras 31-32.

[43] This case was to be a standard real estate and mortgage loan transaction. At the Applicants’ request, TD Bank advanced funds to pay out the previous first mortgage on title to the Property. By doing this, TD Bank was to have become the mortgagee in first position on title. On the facts of this case, no other intention to the contrary is shown. From the record before me, I accept that both the Applicants and TD Bank (n.b., which did not enter an appearance in this application but advised the Applicants that it supported their position on this equitable subrogation point) have clean hands in this matter and did not cause any loss through its own conduct or negligence: Yousefie at para 27. Accordingly, I find that the Crosbie-Hill criteria have been satisfied and that it is just to exercise the court’s discretion to apply equitable subrogation to give TD Bank’s mortgage first priority.

[44] In the alternative, I would find that the Applicants have made out a case for TD Bank’s mortgage to be an equitable first mortgage based on the principle that “[a]n instrument intended to operate as a legal mortgage, which fails so to operate for want of some formality, is valid as an equitable charge and givens the mortgagee a right to a perfected assurance:” Re Elias Markets Ltd., 2007 CarswellOnt 5597 (CA) at para 66, citing Falconbridge, Law of Mortgages (4th) at p. 83. Applying this principle to the facts of this case, I would find that TD Bank’s mortgage was executed by the parties who intended it to operate as a legal mortgage. However, despite monies being advanced under TD Bank’s mortgage agreement, it could not be registered on title to the Property because of a technical failure of the transaction after the seller’s solicitor discharged the VTB before registering the transfer of title to the Applicants. In the circumstances, I would find that TD Bank has a valid and enforceable equitable first mortgage.

Conclusion

[45] Based on the foregoing, registered legal title to the Property shall vest as of December 28, 2017 in the Applicants, subject to a first mortgage in favour of TD Bank as of that date. Other encumbrances and writs shall be discharged and deleted from title to the Property.

[46] The Applicants were successful on this application and seek their costs. In determining costs under ss.131(1) of the Courts of Justice Act and Rules 57.01(1) and 1.04(1.1), the court has broad discretion to award an amount that is fair, reasonable and proportional for the unsuccessful party to pay in a proceeding, instead of an amount that is simply based on the successful litigant’s actual costs: Boucher v. Public Accountants Council (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291 (CA) at para 26.

[47] I add that different considerations may apply when determining costs in cases involving unrepresented litigants, depending on the circumstances: Dina’s Supermarket Inc. v. 651535 Ontario Limited, 2018 ONSC 5574 at para 6, citing Manufacturers Life Insurance Co. v. Crowe, 2010 ONSC 3302 at paras 13 and 15:

[13] Fixing the costs of a motion or proceeding against a self-represented party is always a challenging task. Courts struggle to balance the effects of the lack skilled technical advice available to litigants who are not represented by lawyers against the need for the courts, as adjudicators, to be, and to appear to be, indifferent between the interests of both parties to a lawsuit, represented or not

[15] Given the lack of homogeneity amongst self-represented litigants, it is necessary for the courts, in each case involving a self-represented party, to pay close attention to the factors enumerated in rule 57.01(1) of the Rules of Civil Procedure, particularly those dealing with the reasonable expectations of the unsuccessful party, the conduct of the party, and whether any steps were improper, vexatious or unnecessary: Rule 57.01(0.b), (e) and (f). Fixing costs in such circumstances will be an individualized process, focusing on the characteristics and conduct of the particular self-represented litigant, not measured against some abstract notion of the "typical self-represented litigant".

[48] Beginning in April 2018, the Applicants unsuccessfully proposed to resolve this matter on several occasions with the Respondent without resorting to litigation. Although the Respondent ultimately declined to pursue a resolution, I recognize that she was not responsible for the failed power of sale that caused the Applicants’ predicament. Through her son, Michael Mikhail, the Respondent directed questions to Applicants’ counsel in order to understand the issues in this matter. Understandably, the Applicants were reluctant to engage in a detailed conversation with Michael Mikhail without formal confirmation of his status as his mother’s guardian. This led to a standoff, after which the parties did not engage in meaningful discussions to resolve the matter co-operatively. Once the application was commenced, the Respondent did not retain representation despite having ample opportunity to do so, as explained above. I recognize that the Respondent was unjustly enriched by the unique circumstances that arose which warranted the relief granted on this application. But given her lack of responsibility for the failed transaction, I am not persuaded that the essentially neutral position that she ultimately took was wholly unreasonable or entirely unexpected. In saying this, I offer no comment on the relationship between the Applicants and others involved in the transaction that gave rise to their predicament.

[49] From the context of this case, I find that neither side unreasonably prolonged this proceeding or took unnecessary steps that the court has not already addressed. Given the relatively limited complexity of the main issue (i.e., involving the unjust enrichment and constructive trust arguments), I find that the total number of hours billed by Applicants’ counsel is somewhat high. I also accept that certain issues addressed on this application, such as the attachment of the writs and the equitable subrogation point, are not issues for which the Respondent should bear costs. Accordingly, I am fixing costs on a partial indemnity scale in the amount of $8,500.00, inclusive of taxes and disbursements, which I find to be fair, proportional and reasonable for the Respondent to pay the Applicants for this matter in the circumstances of this case.

[50] Judgment shall issue as I have signed.

Doi J.

Released: October 2, 2019

COURT FILE NO.: CV-18-4247

DATE: 2019 10 02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NELUM ATTANAYAKE and JENNIFER ANNE MIRMALEE

Applicants

– and –

FAWZIA MARY MIKHAIL

Respondents

REASONS FOR JUDGMENT

Doi J.

Released: October 2, 2019