Court File and Parties

COURT FILE NO.: CV-19-631672-00 MOTION HEARD: 20200324 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2676547 Ontario Inc., (Plaintiff, formerly Applicant) AND: Elle Mortgage Corporation, Sub-Prime Mortgage Corporation, Terry Michael Waldman, Walman Catre & Stone, Tavasys Telecom Inc., and Danny Tavares, (Defendants, formerly, Respondents)

BEFORE: Master Josefo (telephone hearing)

COUNSEL: Counsel, for the Tavasys Telecom Inc., and Danny Tavares, Moving Party defendants: R. Worsfold, Mills & Mills LLP, Email: Richard.worsfold@millsandmills.ca Counsel, for the 2676547 Ontario Inc., Responding Party Plaintiff: J. Lo Faso, John Lo Faso Professional Corporation, Email: johnlofaso@westonlaw.ca Counsel for Defendants Elle Mortgage Corporation, and Sub-Prime Mortgage Corporation: G. Cohen, Glenn E. Cohen Prof Corp, Email: glenn@glenncohenlaw.ca (Mr. Cohen is not participating in this within motion) Counsel for Defendant Terry Michael Walman: R. Das, Berkow, Youd, Lev-Farrell Das LLP, Email: rdas@byldlaw.com (Mr. Das is also not participating in this within motion. It is unclear if Mr. Das also acts for Walman Catre & Stone, yet nothing turns on this for purposes of this motion)

HEARD: March 23, 2020

Reasons for Decision

Issue to be Decided, & Brief Overview leading to this within Motion:

[1] This case involves, at its essence, two families fighting over one house and property. Unfortunately, one party will ultimately succeed, while one will not. So far, each seem prepared to spend much money and time fighting for what each claim is a unique property that exclusively fits their particular needs, instead of allocating their resources to seek another property that might equally suffice.

[2] The specific question that I must decide on this motion is whether to set aside (discharge) a Certificate of Pending Litigation (“CPL”).

[3] Ahead in these reasons I further address the relevant underpinning facts. At this stage, the following history of this proceeding will suffice. On December 6, 2019, pursuant to the plaintiff’s motion without notice, the Court granted an Order permitting a CPL to issue and to be registered against lands owned by the defendant Tavasys Telecom Inc., which lands are municipally known as 70A Elderberry Trail, Aurora, Ontario. The moving defendants brought a motion on notice returnable February 4, 2020, seeking to set aside that prior Order.

[4] The motion on February 4, 2020 was before me. On that day I made, inter alia, a timetable Order, with a return date of March 20, 2020. I neither seized myself with, nor precluded myself from, hearing this matter on March 20th—which was a day that, under ordinary circumstances, I was scheduled to hear “regular motions”. In the last few weeks, however, the world has changed. Pursuant to the recently issued Practice Directions (“PD”) of the Chief Justice, effective March 17, 2020, due to the Corona/Covid virus, the Superior Court is closed except for urgent matters.

[5] On the afternoon of March 17th, Mr. Worsfold, pursuant to the PD, sought leave to have the motion to set aside the CPL heard as scheduled on March 20th. He copied his request to Mr. Lo Faso and to Mr. Cohen. On March 18, 2020, Administrative Master Muir, performing the “triage function” of determining if a matter met the “urgency criteria” established by the Chief Justice, accepted that this matter met the criteria. Fortuitously, because it had been before me approximately six weeks earlier and I had some memory of it, the matter was assigned to me. We were supposed to and did convene telephonically on March 20th. Unfortunately, as Mr. Lo Faso was experiencing a power outage at his office, with no ability to access his computer, we agreed to reconvene by telephone on Monday, March 23rd for oral submissions.

[6] Before me I had the various motion and responding records, factums, and authorities which each side delivered (electronically). I also had a compendium of cross-examination transcripts of the various witnesses. The transcripts most relevant, in my view, were the complete transcripts of Steven Frisoni, the principle of the plaintiff, and Danny Tavares, the principle of Tavasys Telecom Inc.

The Hearing Process:

[7] A word on the hearing process is appropriate at this juncture. As the PD makes clear, only urgent hearings are being held during this unprecedented time and situation. The hearing was held telephonically as permitted by the Rules of Civil Procedure (“Rules”). Having read all the material delivered, the parties were limited to 30 minutes each, for a maximum of a one hour hearing, rather than the two hours originally sought.

[8] Similarly, given the urgency, and the resulting need for expedited decision-making, these reasons for decision will not reiterate in chapter and verse all of the legal principles in this area. In my view, those principles are well known, and each side made appropriate reference to case-law and to the governing law in their respective factums. The same can be stated for a discussion of the evidence and the well-argued submissions. In order to allow this case to move forward, given the urgency I only discuss what I have considered to be particularly relevant.

Summary of the Applicable Legal Framework:

[9] A brief overview of the applicable law will accordingly suffice in these circumstances. As always, one begins with Rule 42 and, specifically for an Order discharging a CPL, Rule 42.02 of the Rules, and section 103(6) of the Courts of Justice Act (“CJA”).

[10] Section 103 of the CJA, along with Rule 42, delineates the authority to issue and discharge a CPL. The test to obtain a CPL is not a very high hurdle to overcome. In essence, the moving party must demonstrate a reasonable claim to an interest in land. Phi (in trust) v. Laidlaw Transit Ltd. 2006 CarswellOnt 5681 described the “burden on the moving party [as] not high”. Even if the plaintiff/moving party’s claim is not strong, so long as there is a “triable issue sufficient to find a reasonable claim to an interest in land”, the CPL will be granted. That, however, presumes full and candid disclosure to the Court asked to make the requisite Order. I will return to that point subsequently.

[11] Once the CPL is granted, as it was in this case, the motion for discharge is under Rule 42.02(1). The moving party must meet the onus pursuant to Section 103(6) of the CJA. Pursuant to the case-law, the onus for discharging a CPL in my view is higher than is the onus to obtain one.

[12] Ontario Inc. V. Denofrio, 2000 CarswellOnt 2842 is a decision which discusses the equitable test. Therein, Justice Panet reviews that “a Judge must exercise …discretion in equity and look to all of the relevant matters between the parties in determining whether or not the certificate should be vacated”. That decision also provided that, “genuine disputes as to issues of fact should not be decided on a motion such as this” [my emphasis], with questions of and findings upon credibility preferably reserved to the trial judge.

[13] In this case, counsel each addressed the credibility (or alleged lack thereof) of the main individuals, Mr. Frisoni and Mr. Tavares. Given that is how the case was framed, it becomes necessary that I make findings pertaining to credibility. Yet I do so only as required in order to properly address the live issues and so dispose of the motion.

[14] The Denofrio decision also observes that one basis for discharge is where the party which obtained the CPL does not have an interest in the land. In this case, a key issue in the action, while perhaps not all that clearly stated as such at the outset when this was an Application before being converted to an Action, is whether the plaintiff does or does not have an interest in the land/property in question. The moving and responding parties each thoroughly argued that issue, and there is much evidence tendered that assists me in determining not, in finality, that ultimate question (whether the plaintiff has an interest in land), but rather if, on the equities, the CPL should or should not be discharged because of where that evidence leads me.

[15] Ultimately, whether the plaintiff can make out its case to claim the land will be decided on a full record following a trial. Yet some preliminary conclusions on this point, and observations on credibility, can hardly be avoided in a motion such as this, when one must consider all the evidence, and assess the matter in context. It is also appropriate to observe that even if the CPL should be vacated, that should by no means be taken as a finding that the plaintiff lacks a viable claim, at least against some of the defendants.

[16] In coming to my conclusions herein, I have had resort to and have weighed the “Dhunna Factors”, which arise from the oft-cited decision of Master Donkin, 572383 Ontario Inc. v. Dhunna 1987 CarswellOnt 551 [1987]. In Dhunna, Master Donkin concluded in that case, after reviewing eight key factors (discussed below), that the decision ultimately came down to the equities and to balancing discretion. In that respect, Master Donkin over 30 years ago addressed the equities, as did Justice Panet in the above-referenced Denofrio decision. In my view, accordingly, balancing the equities is of much importance as I consider the evidence and come to my conclusions.

[17] The eight factors discussed by Master Donkin are:

1. Whether the plaintiff is a shell corporation,
2. Whether the land is unique, with the prescient caveat noted that, “bearing in mind that in a sense any parcel of land has some special value to the owner”,
3. The intent of the parties in acquiring the land,
4. Is there an alternative claim for damages,
5. The ease or difficulty in calculating damages,
6. Whether damages would be a satisfactory remedy,
7. The presence or absence of another willing purchaser,
8. The harm to the defendant if the CPL remains, or to the plaintiff if the CPL is discharged, with or without an alternative remedy.

[18] In my view, the eighth factor really, again, speaks to the overall balancing of equities. In this matter I am well able to perform that balancing based on a strong evidentiary record, including the cross-examination transcripts of the two involved parties: Mr. Frisoni testifying for the responding plaintiff and Mr. Tavares testifying for the moving defendant.

Overview of the Important Facts, Evidence, and my Conclusions There-from:

[19] The property at issue in Aurora is just over four acres. There was a partly completed house on the land, which house was in apparently not great condition. The land apparently is suitable for those who want to build a large custom home or to renovate and expand the existing home. Clearly, both parties value the land—yet despite it being a large acreage, I am not convinced that it is singular, not to be replicated. There are other large parcels of land once outside of the City of Toronto and in the GTA. Thus, while desirable to both families, I cannot on this record conclude that the land at issue is truly “unique”.

[20] The quick factual summary involves the plaintiff, referring to what I describe herein as his “alter ego” Mr. Frisoni, who incorporated the numbered company plaintiff, on several occasions attempting yet not succeeding to purchase the Aurora property. He began those attempts in or about June 2019. The ultimate beneficial owner of the property was the defendant Terry Michael Walman, through the two companies that this lawyer ultimately (ostensibly) controlled: the defendants Elle Mortgage Corporation and Sub-Prime Mortgage Corporation. The property was apparently in foreclosure, so the two defendant mortgage corporations were able and open to selling it.

[21] After an initial and unsuccessful attempt to negotiate a private sale for the property, subsequently, when it was listed for sale in or about August 2019, the plaintiff again exchanged offers and received counter offers for the property, which was by that time under Power of Sale. The plaintiff claims ultimately that it was successful in obtaining from Walman’s (beneficially controlled) company Elle what it asserts was an accepted offer to purchase the property. The plaintiff further asserts that, for a slightly higher offer (about $75,000 more), the defendants Elle, Sub-Prime, Walman, and his law-firm, in essence pulled the rug out from under it/him (meaning, Frisoni), selling the property—for a second time—to the defendant Tavasys (and Tavares).

[22] The vendor defendants of course deny that anything they did was wrong. Tavasys and Tavares assert that they are bona fide third party purchasers for value, that the title which they obtained is indefeasible, and specifically deny that they were parties to any fraud as plaintiff alleges, or even that they had actual knowledge of an actual prior purchaser of the property, as contrasted with knowledge of someone else also attempting to be a buyer.

[23] It is clear that on October 8, 2019 the Tavares Agreement of Purchase and Sale was signed as accepted by all parties involved in the transaction. On that same day, Walman wrote to the real estate lawyer for the plaintiff, notifying the plaintiff that the deal it was trying to make was at an end. As of no later than October 18, 2019, the plaintiff was aware of Tavares and Tavasys, and that these were the parties who had succeeded in purchasing the property. Yet from that point in mid October, the plaintiff took no action to assert its rights for nearly two months.

[24] Ultimately, on November 26, 2019 the plaintiff issued its Application (subsequently converted into an Action by Justice Archibald). On December 6, 2019, plaintiff returned its original motion without notice, seeking the CPL.

[25] Pausing at this juncture, while the Rules clearly provide that a motion for a CPL may be made ex parte, that does not mean that doing so is the appropriate course in all cases. Having the benefit of the far more complete record than was before my colleague on December 6th (including the cross-examination transcripts and the compendium), and knowing of the additional facts not previously disclosed, in my view the motion to obtain the CPL should have been originally made with notice. The plaintiff knew of the existence of both Tavasys and Tavares, having had its lawyer conduct the requisite searches to confirm the identity of these parties. Unlike an attempt to garnish a bank account which, with notice given to the party opposite, could suddenly be emptied, in this case providing notice to all relevant parties of an attempt to obtain a CPL would likely not have prejudiced the plaintiff. Certainly, it would have allowed the Court to address the issue with the benefit of a complete record, hearing from all interested parties.

[26] Considering the timeline and the plaintiff’s unexplained delay in pursuing its remedy, so that the moving defendants had already expended considerable sums on the property by the time the original Order issued, it would appear that there was no urgency initially felt by the plaintiff. In such circumstances, again, notice should have been given.

[27] When a party chooses to move ex parte, moreover, full disclosure to the Court is mandatory. In this case, it is clear to me that the plaintiff is a shell corporation without assets. As Mr. Frisoni acknowledged when cross-examined on February 21, 2020, the numbered company plaintiff is a single-purpose corporate vehicle, established for the sole purpose of purchasing the Aurora property. Mr. Frisoni also acknowledged under oath that the plaintiff has no assets (questions 17 & 18). I prefer such sworn testimony to any later attempts, including in a factum or a subsequently sworn affidavit, to cooper up such sworn testimony elicited through fair questioning.

[28] While the deposit tendered by Mr. Frisoni (through his numbered company) on purchase remains in trust with the real estate agent, that is, in my view, no answer to the lack of disclosure that the numbered company is a shell, and that it was only subsequently acknowledged to have no assets. I agree with Mr. Worsfold that the deposit amount could be used up very quickly, in various ways, in the context of this expensive litigation.

[29] It does not appear to me that my colleague, who on December 6, 2019 granted the CPL, was made aware that the plaintiff was a single purpose shell corporation, without assets. While on cross-examination, Mr. Frisoni agreed that he would be responsible for any costs (question 25), I find it more notable that he at the same time disavowed responsibility for damages which may be awarded against the plaintiff by way of the moving defendant’s counter-claim (question 26).

[30] Moreover, Mr. Frisoni repeatedly refused to answer any questions (which, preliminarily to me appear relevant) regarding what unencumbered assets he may own to satisfy the undertaking given for him by Mr. Lo Faso. Mr. Frisoni also refused (question 292) to provide a financial statement, rendering the undertaking of his counsel regarding the payment by Mr. Frisoni of costs (but not of damages possibly awarded) far less reliable or of much genuine value. It is thus quite unclear, accordingly, if Mr. Frisoni has sufficient assets to satisfy a damages (or costs) award that conceivably could be made against him made pursuant to the counter-claim. Yet other than noting this, as in my view it goes to the underpinning equities of the within motion, this motion is not specifically to address Security for Costs.

[31] There was ongoing construction on the property, yet the Court on December 6, 2019 was also not informed of this relevant fact. The construction was by Tavares who, pursuant to his cross-examination testimony had, within the couple of months that the plaintiff allowed to go by, engaged a contractor and had encumbered himself with other contracts pertaining to construction of his “dream home” (my words, which for both parties in essence represents their view of the land and home they each intended to build there).

[32] Mr. Frisoni claims that he was unaware of such construction as of December 6th. In the context of this record, such an assertion I find inconsistent and likely unreliable. Mr. Frisoni testified that one of the persons he saw on the property (who he later learned was Mr. Tavares, as discussed ahead in these reasons) showed him the survey of the property on a cell phone, and discussed the set-backs. Moreover, Mr. Frisoni himself intended to build a home on the property, so it is fair to infer that he would assume that another prospective purchaser, such as one with a survey on his phone, may well do the same. In any event, again, at questions 242 & 242, Mr. Frisoni fails to explain why he delayed in pursuing his claim so that, by the time he was initially before the Court, construction by Mr. Tavares was under way.

[33] Moreover, when I read the cross-examination transcript of Mr. Frisoni in its entirety, I am struck by and troubled with what I find is his overall evasiveness. Many questions were (again, in my preliminary view) unreasonably refused. Importantly, Mr. Frisoni acknowledged in his testimony that he knew that Elle could terminate the Agreement of Purchase and Sale if there had been non-compliance with power of sale legal requirements (questions 145-147; 151, 153), which is the position that Elle ultimately asserted for its termination of the deal. However one-sided such an Agreement in hindsight may appear, that was apparently the deal which Mr. Frisoni was seemingly willing to make, the terms of which he was seemingly aware at the time.

[34] Despite learning through the litigation that Mr. Tavares had spend significant amounts on construction on the property since he purchased it, at question 265, Mr. Frisoni also refused to answer if he would refund anything spent to improve the property (if Mr. Frisoni prevailed in obtaining ownership).

[35] As for Mr. Tavares, there was much made that Mr. Tavares knew, when he purported to purchase the property, that it was already sold to Mr. Frisoni. Mr. Lo Faso stressed that fraud itself need not be asserted; simple knowledge of another, prior, purchaser on the part of Mr. Tavares is sufficient to cause him to lose full title to the property. For that premise, the Court of Appeal decision of Stanbarr Services Limited v. Metropolitan Properties Inc 2018 ONCA 244 (at paragraph 14) is relied upon. Referring to and extrapolating from other cases, including from the Supreme Court, the Court of Appeal held that: “…actual notice of an unregistered instrument could defeat the interest of a registered owner or encumbrancer even in the absence of fraud”.

[36] Yet for my (limited) purposes of deciding this motion, I must disagree with the likelihood of that premise arising on the facts of this case. Pursuant to questions 185 and following of his cross-examination, Mr. Frisoni testified that he saw two people on the property, which it is now known were Mr. Tavares and his uncle. Yet Mr. Frisoni acknowledged that at the time of that encounter he did not identify himself to them, nor did they to him, nor, seemingly, did anyone ask each other for names. Mr. Frisoni also testified that he could not recall if he asked his real estate agent or lawyer about these two men (questions 202, 208). Mr. Frisoni did agree that if these people were on the property, however, they were likely to be would-be buyers.

[37] In such circumstances, accordingly, I am puzzled by his answer that he “could not recall” asking either the real estate agent or his lawyer about this encounter, with those whom he suspected were seeking to buy the property that Mr. Frisoni claimed to have already by then bought. After all, if he believed he had succeeded in obtaining the property, I would expect Mr. Frisoni to be very suspicious of any others essentially trespassing on what he by then considered to be his land. In such circumstances, I would have expected him, or indeed anyone similarly situated, to have asked who these people were, asking for their names, and also asking his real estate agent and his lawyer about it, to find out what others were doing on the property that he purportedly thought he had an agreement to purchase.

[38] Yet that is not the evidence before me. I thus find his testimony inconsistent with his position that he had purchased the property at that point, as well as inconsistent with the submission by Mr. Lo Faso that Mr. Tavares had notice of a prior buyer.

[39] In contrast, I found Mr. Tavares to have provided far more forthright, logical, internally consistent, and thus reliable testimony when he was cross-examined. Mr. Tavares was consistent (questions 148-152; 192) when testifying that the real estate agents, who agreed to represent both vendor and Mr. Tavares, did not tell him to whom the property was sold when Mr. Tavares had the agent make his offer to purchase.

[40] Reviewing the transcript compendium of one of the two Real Estate Agents, Newsha Shirkhorshid (“Newsha”), he recalls that when Tavares called him, Newsha told him that the property was “sold firm” once the deposit cheque was delivered, but Newsha did not tell him to whom. When Tavares asked the other Real Estate Agent Samuel Wygodny (“Sam”) in essence if it was too late and if anything yet could be done, Sam took the question to Walman, the beneficial owner of the property and from whom the two agents took their instructions.

[41] The evidence from the cross-examinations of these agents was that Walman was ostensibly of the view that the deal with the plaintiff was not firm, so that Tavares could still make an offer. Whether that evidence will be confirmed or disputed by Walman at trial, and (if proven) whether Walman was right or wrong in his belief and, if wrong, if he is exposed to damages, are all questions that will be sorted out at trial, with a full record, and in complete context. Such issues are by no means for me to decide on this motion. Yet what is not in dispute is that Tavares (through his company) put in a bid higher than what Frisoni (through his company, the plaintiff) offered, and Tavares was successful in obtaining the property.

[42] Overall, I found Mr. Tavares, at question 408 and following, to provide a coherent and logical explanation for his actions: how he came to put in his offer, and his encounter with the plaintiff at the property. Mr. Tavares acknowledged (question 462) that there was a competitor for the property—which fact itself is hardly surprising, I would add—yet he maintained that he did not know that the property had truly been sold before he offered to buy it. Moreover, I find at question 529 that Tavares provided a cogent explanation for what he and his Uncle saw, and how each interacted with the plaintiff (meaning, Frisoni).

[43] That the testimony of Tavares and Newsha differs by degrees is I find in context not significant. After all, one real estate agent told Tavares that the property was sold (if Newsha’s evidence on that point is reliable), while another was yet willing to take the matter forward to the authorized vendor, Walman (the individual behind Elle and Sub-Prime). Ultimately, Walman agreed to receive an offer—so clearly, based on that alone, Tavares, as a reasonable purchaser, could logically conclude that, if he was permitted to make an offer, the property was not in fact truly or actually “sold”.

[44] In my view, accordingly, notwithstanding the well-made argument of Mr. Lo Faso, I thus disagree that Tavares had actual notice of any purported sale. Rather, he received contradictory information from the parties with whom he was interacting. The “for sale” sign remained on the property. He was, after asking if he still could (and, there is nothing wrong, in my view, in his asking), allowed to make an offer. All these factors lead me to conclude that Tavares was more likely not aware, contrary to what is alleged by the plaintiff, that the property had been purportedly “sold” to the plaintiff before Tavares made his offer.

[45] Again, both Newsha and Sam agree that Tavares did not know the identity of the party with whom Tavares was in competition for the property. In my view, that is the crux of it: on the more complete record before me, which my colleague did not have on December 6, 2019 when the CPL Order was made, the evidence is persuasive that Tavares knew that he was in a competition with someone unknown for what apparently is a desirable property. He did not likely know, certainly not with the requisite degree of certainty required in such cases, that the property was already sold. Given the various mixed messages that he received, I find such knowledge would be on these facts unlikely.

[46] Ultimately, Tavares won the competition. He was allowed to close the deal. Then, moreover, nothing happened for several months to alert him to any concerns. There was no caution placed on title before he closed; he received no demand letter; months passed, and he had well begun his construction.

[47] For my purposes, based on the evidence before me, a compelling case is made out that Tavares was a bona fide third party purchaser for value, not engaged in any fraud, and lacking the requisite “actual notice” that the property for which he had been competing had previously been sold to another. Rather, I find that Tavares was engaged in a business battle, a competition to win a contested piece of property. I see nothing fraudulent in his actions which would lead me to find that the equities are against him. In contrast, in my view, the claim of the plaintiff for the land seems to be very much of an uphill battle. While the claim for damages against some of the defendants may well be viable (again, depending on all the evidence ultimately at trial), the plaintiff’s claim for title in my view seems quite weak, if existent at all.

[48] Addressing the availability of damages to the plaintiff, again, if the plaintiff proves his case, which is that his Agreement of Purchase and Sale was wrongly terminated by Walman and/or the two mortgage company defendants, the plaintiff will likely be entitled to damages from those defendants who (might be) found to have acted wrongfully in the context of a contractual breach. Damages are the typical remedy in such circumstances, and there is no evidence that this would not be available in this case. I realize that the plaintiff asserts that this home and land are unique. Yet, as Master Donkin long ago recognized, such can be asserted by virtually any purchaser for any home that one seeks to purchase. The law recognizes that, for proven breaches of contract, the typical remedy is money damages. Based on the evidence herein, and my finding that this large property, while nice, is not singular, I see no reason to depart from that usual approach. In my view, damages would be capable of calculation in this case, as such are in most other cases.

[49] Again, it is stressed that I come to the above findings only in context of this motion, based on the submissions and the large, yet still not complete, record before me. Obviously, once this case reaches trial, with more evidence available to the trier of fact, the totality of all such evidence may well lead the trial judge to a different conclusion. I also emphasize that my observations on entitlement to damages, and whether the plaintiff has such entitlement if he was treated inappropriately or not according to law by the authorized vendor, are equally preliminary at this stage, and are only addressed as part of the Dhunna factors, and the issue of equity as discussed earlier in these reasons, which must be considered in a motion such as this.

[50] Taking into account:

1. the less than full disclosure of relevant facts on the initial return of this motion when the CPL was granted (which, in and of itself, constitutes sufficient grounds to discharge the CPL),
2. the unexplained lack of alacrity on the part of the plaintiff in initially not pursuing this matter robustly, which led to the moving defendant to extend himself with construction, and to accordingly be prejudiced,
3. my finding that, for purposes of this motion when considering the cross-examination transcripts and all the other evidence, the defendant Tavares testified in a far more logical and internally consistent fashion, with a narrative that makes sense in context of the overall case,
4. the damage to the moving defendant whose construction on the property is stalled at much expense to that party,
5. the shell nature of the plaintiff, and Mr. Frisoni’s unwillingness to address his financial ability to compensate the moving defendant if a judgment is rendered against plaintiff,
6. the option of a damages remedy for the plaintiff being both realistic and typical,
7. and for all these reasons discussed herein,

[51] I find that the equities in this case favour discharging the CPL. The December 6, 2019 order should be set aside. I thus grant the motion of the moving defendants to discharge the CPL.

[52] In the circumstances of the Covid-19 emergency, this endorsement is to be considered and treated as an effective and binding Order of the Court from date of release, without any need for a formal, entered Order. If desired, counsel can, once normal court operations resume, provide me (through ATC Mr. D. Backes) a formal Order which I can then sign. Yet if, for Land Title purposes, a formal Order is immediately and urgently required, once such is approved as to form and content, one may be submitted to me electronically, through Mr. Backes. Once I sign it, I will find a way to get it to the Masters Administration Office.

[53] The moving defendants sought costs if successful (as did the respondent Plaintiff). Costs follow the event, as is well known. If the parties cannot agree on costs, once normal court operations resume, the parties can book a tele-conference call, or appearance before me, to address costs. In the interim, the parties can exchange their Costs Outlines.

[54] Moving defendant also sought the trial of an issue to determine damages to Tavasys arising from the registration of the CPL in the first place. One wonders if this is not best addressed through the litigation, even if that necessitates any amendments to the pleadings. Yet, alternatively, if the parties agree, that matter perhaps can be addressed by me via a Reference. In the further alternative, they may attend To Be Spoken To (“TBST”) or Civil Practice Court (“CPC”) to address the process for this, yet again, in any case only once normal court operations resume.

[55] I thank the parties for their flexibility in presenting this case so efficiently, during these challenging times.

Master Jay Josefo Date Released: March 24, 2020