Superior Court of Justice - Ontario
COURT FILE NO.: 20-83690
DATE: 2020-10-01
RE: Alain Damphousse, Plaintiff
AND
Lucie Gosset, Defendant
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Miriam Vale Peters, Counsel for the Plaintiff Kurt W. Anders, Counsel for the Defendants
HEARD: September 17, 2020 by video conferencing
ENDORSEMENT
M. Smith J
[1] The Plaintiff brings this Motion seeking leave to issue and register a Certificate of Pending Litigation (“CPL”) against three properties owned by the Defendant.
[2] The Defendant opposes this Motion on the basis that it is premature and that there is already a Court Order preventing the Defendant from disposing of her properties.
[3] The Plaintiff relies upon his affidavit dated February 14, 2020 as well as an affidavit from a law clerk dated June 16, 2020. The Defendant relies upon her affidavit dated July 23, 2020.
[4] For reasons that follow, the Plaintiff’s Motion is dismissed.
BACKGROUND
[5] Roger Damphousse died on March 23, 2019 (“Roger”). He is the Plaintiff’s father and the Defendant’s common law spouse. Roger also had two other children, namely Sandra Damphousse (“Sandra”) and Nathalie Laplante (“Nathalie”).
[6] The Defendant was appointed the Estate Trustee on July 2, 2019. In support of her Application for a Certificate of Appointed Estate Trustee with a Will (the “Certificate”), she filed Roger’s Holographic Last Will and Testament dated February 23, 2019 (“Roger’s Will”). It provided that all of Roger’s belongings be transferred to the Defendant as the sole beneficiary, which included the three properties referred to in the Plaintiff’s materials.
[7] On or about July 10, 2019, the Defendant transferred three of Roger’s properties to herself (the “subject properties”).
[8] The Plaintiff disputes the legitimacy of Roger’s Will.
[9] Roger’s Will also provided that the Defendant have the discretion to distribute the assets and cashflow as she sees fit. The Defendant disbursed the following sums: $40,000.00 to the Plaintiff and $20,000.00 to his child (in or around December 2019); $40,000.00 to Sandra (in or around July 2019); and $40,000.00 to Nathalie and $20,000.00 to each of her children.
[10] On February 20, 2020, the Plaintiff brought an urgent motion without notice seeking the immediate return of the Certificate. Justice London-Weinstein granted the Order. Her Endorsement reads in part the following: “There are genuine issues regarding the validity of the will as handwriting claimed to be different from [illegible] samples. Deceased was also on morphine and marijuana and Ms. Gossett was administering the meds. In my view this argument might potentially succeed”.
[11] The Certificate was returned in or around May 6, 2020.
[12] On June 3, 2020, Justice Gomery ordered that this Motion be heard in September 2020.
[13] On July 30, 2020, an Order Giving Directions was made by Master Kaufman. Two directions of relevance are:
a. A Motion for Summary Judgment shall be heard on November 24, 2020; and
b. The Defendant was not permitted to dispose of any real property until further Order of the Court.
[14] In argument, counsel for the Defendant submitted that he was denied the right to cross-examine the Plaintiff on his affidavit dated February 14, 2020, which is the affidavit relied upon by the Plaintiff in support of the Motion before Justice London-Weinstein as well as this Motion. Counsel for the Plaintiff admitted that she refused the request because the Plaintiff would not have been able to speak to the issues raised in this Motion to seek leave and register a CPL.
THE LAW
[15] Section 103(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), establishes the Court’s jurisdiction to issue a CPL.
[16] Rule 42.01(1) of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 (“The Rules”), states that a CPR under Section 103(1) of the CJA may be issued by the registrar only under a Court Order.
[17] Before an order for a CPL may be granted, the Court must first determine whether there is a triable issue regarding the property. The onus is on the party opposing the CPL to demonstrate that there is no triable issue. Relevant factors to consider on a contested motion for leave to issue a CPL includes, inter alia, whether there is an alternative claim for damages, the ease or difficulty of calculating damages, whether damages would be a satisfactory remedy and whether the interests of the party seeking the CPL can be adequately protected by another form of security. The Court must also assess the equities when determining if a CPL should issue (see Bains v. Khatri, 2019 ONSC 1401; 2254069 Ontario Inc. v Kim, 2017 ONSC 5003).
[18] In the decision of Interrent International Properties Inc. v. 1167750 Ontario Inc., 2013 ONSC 4746, Master McLeod (as he was then) concluded that once a Motion is brought on notice, it is effectively to be treated as a Motion to discharge a certificate under section 103(6) of the CJA. He set out at paragraph 15 the principles to apply:
15 The following principles may be distilled from the caselaw:
The first question is whether or not the claim for specific performance has merit. On an ex parte motion the threshold is low. The court must simply be satisfied that the claim is plausible and there is sufficient evidence to show that there is a serious issue.
On a contested motion, the court will review all of the evidence put forward by both parties and determine on the totality of the evidence before it whether or not there is a triable issue.
In making this determination the court need not accept the pleadings or the affidavit evidence uncritically but will examine all of the evidence after cross examination to determine whether or not the claim has a reasonable prospect of success.
Reasonable prospect of success means not only a reasonable prospect of proving breach of contract but also succeeding in obtaining the equitable remedy of specific performance. Thus the court must be satisfied that damages would not be an appropriate remedy.
Even if the plaintiff has a potential case for specific performance the court may still refuse the CPL if it would be unjust to order it. The court must consider the equities of granting this form of interim relief. This is not a mechanical application of a test but an exercise of discretion to achieve a just result.
Factors the court may consider include the strength of the case, the uniqueness of the land, the adequacy of damages as a remedy, whether the CPL appears to be for an improper purpose, and the balance of convenience.
The court may impose terms whether it grants or withholds a CPL.
THE ANALYSIS
[19] On a contested Motion, it is not unusual for the parties to conduct cross-examinations. In the case at bar, counsel for the Defendant requested that they take place, but it was denied by counsel for the Plaintiff. The refusal was improper. The Rules clearly contemplate that it is a party’s right to cross-examine and it is not up to counsel to unilaterally decide that cross-examinations should not proceed.
[20] Part of the test requires that I consider the totality of the evidence when determining the existence of a triable issue and whether the Plaintiff has a reasonable prospect of success in his claim. The evidence from the cross-examination of the Plaintiff should have been before the Court.
[21] The Plaintiff says that he is waiting for medical evidence, he has yet to engage his own expert and he will be filing responding materials to those filed by the Defendant.
[22] At the present time, the only evidence before me that speaks to the Plaintiff’s claim is his affidavit dated February 14, 2020. The Plaintiff has chosen to proceed with this contested Motion on the basis of the Plaintiff and law clerk’s affidavits. The Defendant had proposed that this Motion be heard with the Motion for Summary Judgment, but it was declined by the Plaintiff.
[23] In the context of a contested Motion seeking leave to issue and register a CPL, I adopt the principles enunciated in Interrent International Properties Inc. v. 1167750 Ontario Inc. and I find that it is necessary to scrutinize the Plaintiff’s claim a little more closely.
[24] The Plaintiff’s evidence can be summarized as follows:
a. The Defendant was a very controlling figure in Roger’s life;
b. The Defendant administered Roger’s medication;
c. The Defendant did not inform the Plaintiff that his father had passed away;
d. The Defendant did not inform the Plaintiff that she had been appointed as the Estate Trustee;
e. He had no knowledge of Roger’s Will;
f. He questions the validity of Roger’s Will that was unsigned. He does not believe that it was written by Roger. He provides documents written by Roger in the past and suggests that the handwriting is different than what is found on Roger’s Will;
g. He believes Roger’s Will to be invalid because he lacked capacity as a result of the medication that he was taking;
h. Roger had previously hand written a will where his entire estate was to be given to the Plaintiff and Sandra; and
i. He had an excellent relationship with Roger.
[25] In response, the Defendant provides an affidavit dated July 23, 2020. The Defendant’s evidence can be summarized as follows:
a. Roger and the Defendant have resided together since October 2012;
b. The Defendant and Roger have been seeing each other since February 14, 2008;
c. They travelled extensively together throughout the years;
d. They moved in together in October 2012;
e. She describes his medical condition, the medication that he was taking, his medical appointments and his lucidity;
f. She explains the value of the estate and the transfer of properties to herself as well as the gifts to Roger’s three children and four grandchildren;
g. She provides additional evidence from third parties, as described below:
i. A letter dated June 19, 2020 from Roger’s community palliative care physician who confirms that she saw him on six occasions, the last three being in February and March of 2019. She confirms that Roger refused palliative radiation. He expressed his wishes unequivocally and he did not display any cognitive impairments;
ii. A report dated July 8, 2020 from a Certified Forensic Document Examiner and Handwriting Expert concludes that Roger’s Will and all other documents submitted for review were written by Roger;
iii. A letter dated July 22, 2020 from his financial advisor confirming Roger’s instructions that the Defendant become the beneficiary of his investments. The financial adviser states that Roger always appeared lucid and in full control of his mental abilities;
iv. An affidavit from Francine Tremblay who deposes that Roger did not have a relationship with the Plaintiff and/or his daughter Sandra. It is stated that Roger had not seen them for approximately 15 years. Roger expressed his wishes to Ms. Tremblay that his assets were to be distributed to the Defendant;
v. An affidavit from Chantale Connolly who deposes that Roger often told her that he did not have a relationship with his children; and
vi. An affidavit from Eleanor Murray, a legal assistant with the firm of Mulvihill Murray Fannon. She deposes that she met with Roger in February 2019, specifically instructing her to appoint the Defendant as an Estate Trustee and transferring his estate to her. A draft copy of the typed will is attached to her affidavit.
[26] Based upon the evidentiary record before me, which is limited to the Plaintiff’s affidavit dated February 14, 2020 and the law clerk’s affidavit (dealing primarily with the return of the Certificate), I find the Plaintiff’s claim to be weak.
[27] The Plaintiff lacks any evidence of substance to support his allegations that Roger lacked mental capacity. Conversely, the Defendant’s evidence on this issue not only includes third parties that have known Roger for years but more importantly, from Roger’s physician who treated him during his last months and she did not believe that a capacity assessment was required.
[28] Other than the Plaintiff’s own hand writing analysis on Roger’s Will, which cannot be afforded any significant weight, there is no other evidence in support of his allegation that the will was not written by Roger. I recognize that the Plaintiff has indicated that he will be retaining an expert, but I must determine the issues on the evidence before me. Putting aside the Defendant’s expert report which confirms that the holographic will was written by Roger, there is evidence before the Court showing that Roger attended at his lawyer’s office and instructed Ms. Murray to prepare a will that essentially mirrors the holographic will.
[29] The Plaintiff’s evidence that he had a close relationship with his father is contradicted by two independent witnesses.
[30] Although I recognize that the threshold test is low, the analysis and scrutiny to be conducted must be based on the evidentiary record before me. I am not satisfied that there is a triable issue with respect to the Plaintiff’s claim to an interest in the subject properties.
[31] Even if I had found that there was merit to the Plaintiff’s claim and the threshold test was met, I would nonetheless dismiss the Motion by exercising my discretion, on the basis of equity. On the facts of this case, I do not find that it would be an equitable remedy to grant the CPL.
[32] The CPL is meant to protect the Plaintiff’s interest in the land but only when other remedies are ineffective. In the case at bar, the Plaintiff obtained an Order for the return of the Certificate. The Defendant complied with the Justice London-Weinstein’s Order. It may have been three months later, but I accept the Defendant’s evidence as to why there was a delay. I acknowledge that the subject properties have been transferred to the Defendant but without the Certificate, the Defendant is unable to administer the balance of the estate.
[33] There is also an Order in place preventing the Defendant from disposing her real property, which would include the subject properties. The Plaintiff argues that this Order cannot be registered on title. Notwithstanding, the Defendant has demonstrated compliance with a Court Order (i.e. the return of the Certificate) and there is no evidence before me to suggest in any way that she would not comply with Master Kaufman’s non-dissipation Order. Accordingly, I find that the July 30, 2020 Order is an effective remedy for the Plaintiff as it provides appropriate security.
[34] The CPL is not to be used when other remedies are available. It is my view that damages would be a suitable remedy for the Plaintiff and the calculation of damages would not be difficult in the present case. Further, I do not find that the Plaintiff has provided any evidence to suggest that a judgment would not be recoverable against the Defendant, especially with the existence of a non-dissipation Order that would apply to the subject properties.
[35] The Plaintiff argues that there is no evidence of any prejudice to the Defendant if the CPL is granted. While that may be accurate, I find that there is no prejudice to the Plaintiff if the CPL is not granted. There are two Court Orders that provide ample security and there is no evidence that the Defendant is impecunious.
[36] On the totality of the evidence before me and for the reasons outlined above, the Plaintiff’s Motion to grant leave to issue and register a CPL is dismissed.
[37] The Defendant is entitled to her costs. The parties are strongly urged to agree upon costs. If they cannot reach an agreement, the Defendant may make written submissions (not to exceed 3 pages) exclusive of the Bill of Costs and Offers to Settle, within fourteen (14) days of the date of this Endorsement. The Plaintiff may then make written submissions (not to exceed 3 pages) exclusive of the Bill of Costs and Offers to Settle, within ten (10) days after receipt of the Defendant’s submissions. The Defendant may then file a reply (not to exceed 1 page), within five (5) days thereafter.
M. Smith J
Released: October 1, 2020
COURT FILE NO.: 20-83690
DATE: 2020-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Alain Damphousse
Plaintiff
AND
Lucie Gosset
Defendant
ENDORSEMENT
Justice Marc Smith
Released: October 1, 2020