RELEASED: 2020/12/22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2650971 Ontario Inc. and Kouraj Rahimi-Aloughareh a.k.a. Cyrus Rahimi v. Durim Shameti and Anila Shameti

BEFORE: Master Graham HEARD: September 29, 2020

COUNSEL: Michael Katzman for the applicants (moving parties)

Harneet Singh for the respondents

REASONS FOR DECISION

(Applicants’ motion for leave to issue a Certificate of Pending Litigation)

[1] The applicants and moving parties Rahimi and 2650971 Ontario Inc. (“265 Ontario”) bring the underlying application for an order declaring that the respondents (“the Shametis”) hold a 100% interest in the property at 192 Lord Seaton Road, Toronto (“the property”) in trust for the benefit of 265 Ontario as a result of an express trust, resulting trust, constructive trust or purchase money resulting trust. The applicants also seek an order for partition and sale of the property, a tracing order with respect to funds advanced to the Shametis by a second mortgagee, and an order for a reference to determine the apportionment of funds owing to the parties and any damages.

[2] The applicants allege that the parties entered into a joint venture agreement to purchase the property and to renovate it for the purpose of selling it at a profit. The respondent Durim Shameti acknowledges that he and Rahimi agreed to share equally the initial investment to purchase the property, its upkeep, the renovation costs, and the profits earned from the eventual sale.

[3] Rahimi’s evidence is that he paid approximately $570,000.00 representing 50% of the down payment for the purchase of the property. The Shametis acknowledge that Rahimi paid this amount but submit that in addition to paying $600,000.00 towards the down payment, they paid approximately another $285,000.00 towards the costs of purchasing and maintaining the property, including $32,715.00 on closing, $166,315.36 in mortgage payments, and various other carrying costs.

[4] When the purchase of the property closed on August 20, 2018, title was taken by the Shametis together. The corporation 265 Ontario was incorporated on August 17, 2018 with Cyrus Rahimi as president and Durim Shameti as secretary. According to the Shareholder Agreement signed by Rahimi and Durim Shameti on August 17, 2018, Rahimi had exclusive signing authority for 265 Ontario.

[5] Also on August 17, 2018, the respondents Shameti together as trustees and Rahimi on behalf of 265 Ontario as beneficiary signed a Trust Agreement including the following terms:

• The Respondents/Trustees acknowledged that the property (defined in the Agreement as 192 Lord Seaton Road, Toronto) was to be held for the benefit of the beneficiary 265 Ontario, and that they had no beneficial interest in the property.

• The Respondents/Trustees agreed “not to sell, transfer, mortgage, pledge or in any way deal with the Property without the express written instructions of the Beneficiary.”

[6] The applicants allege that in the months following the purchase of the property, Shameti did not cooperate in facilitating the construction financing required, as a result of which they were not able to move the project forward.

[7] On September 27, 2019, the Shametis registered a $2,000,000.00 second mortgage on the property. Rahimi deposes that he did not learn about this mortgage until early November 2019, and that the mortgage was unauthorized because, under the terms of the Trust Agreement, the Shametis were not to mortgage the property without the express written instructions of the beneficiary 265 Ontario.

[8] The Shametis, through their counsel, took the position that there was no valid Trust Agreement, that they were not bound by the Shareholders Agreement, and the amounts that Rahimi invested in the project constituted a loan and not an investment. Rahimi deposes that Durim Shameti threatened that if he did not accept that the funds that he invested constituted a loan, he would privately sell the property. The Shametis submit that Durim Shameti did not consent to the incorporation of the applicant 265 Ontario, and that the Shareholder Agreement and the Trust Agreement are “unconscionable” based on the involvement of a lawyer retained by Rahimi whom they allege did not act in their interests. However, the Shametis do not deny signing the Trust Agreement and Durim Shameti does not deny signing the Shareholder Agreement.

[9] The applicants issued their Notice of Application on December 18, 2019 and on December 20, 2019 brought a motion for a Certificate of Pending Litigation (“CPL”). On December 20, 2019, the respondents requested an adjournment of the motion. The applicants were prepared to consent to an adjournment provided that the respondents consented to a “non-dissipation order” pending the return of the motion, but the respondents refused to agree. Master Short adjourned the motion to April 7, 2020 on the terms sought by the applicants, namely that the respondents not sell, dispose, mortgage or otherwise encumber the property pending the disposition of the motion, consent of the parties, or further order of the Court.

[10] The motion did not proceed on April 7, 2020 owing to the suspension of court hearings arising from the Covid-19 pandemic. The applicants’ CPL motion was eventually rescheduled and argued before me.

[11] Subsequent to Master Short’s order of December 20, 2019, the parties’ counsel engaged in settlement discussions in an attempt to resolve the action, or at least the CPL motion. The applicants now submit that the CPL motion was resolved through an exchange of email messages ending on May 6, 2020. The respondents deny that there was any binding agreement in that regard.

[12] The issues on the motion are:

1. Did the parties previously reach a binding settlement of this CPL motion on May 6, 2020? (“the settlement issue”)

2. If the parties did not previously settle the CPL motion on the basis that a CPL would be issued and registered, is this an appropriate case to grant the applicants leave to register a CPL on the property.

Analysis of the issues

1. Did the parties previously reach a binding settlement of this CPL motion on May 6, 2020?

[13] The applicants submit that subsequent to the appearance before Master Short on December 20, 2019, they engaged in settlement discussions to resolve the matter, and failing resolution of the Application, to resolve this CPL motion. The applicants further submit that the CPL motion was resolved by way of an exchange of email communication on May 4, 5 and 6, as set out below.

[14] The law on when the settlement of an issue in litigation is enforceable was summarized in L-Jalco Holdings Inc. v. Lawrynowicz & Associates, 2018 ONSC 4002 (paras. 34-39):

34 A settlement agreement is enforceable as a contract, and the rules of contractual interpretation apply: Dofasco Inc. v National Steel Car Limited, 2012 ONSC 6434. A settlement agreement among parties should be enforced unless the court is satisfied that, in all of the circumstances, there is a real risk of a clear injustice: Hilco Industrial Acquisition Canada ULC v Engreen Maitland Inc., [2016] O. J. No. 3097.

35 As to the existence of a settlement, the following factors are to be considered: (i) mutual intention to create a legally binding relationship; and (ii) an agreement on all of the essential terms of the settlement: Tondera v Vukadinovic [2015] O.J. No. 5158.

36 Where there is a mutual intention to create a legally binding relationship, the parties agree on all essential terms and make reference to finalizing mutually acceptable settlement documents, the contract is binding: Fehrman v Goodlife Fitness Centres Inc., 2017 ONSC 4348, [2017] O.J. No. 3731.

37 A written agreement to settle is to be measured by an objective reading of the language used by the parties to reflect their agreement. Courts should not be “too quick to find an ambiguity or lack of agreement in the terms of a settlement agreement”: Fehrman v Goodlife Fitness Centres Inc., supra.

38 Following determination by the court of the existence of a settlement, the court must determine whether to exercise its discretion to enforce the settlement. The factors to be considered by the Court are as follows:

1. Whether the offer was clear and unequivocal;

2. Whether or not a mistake was made;

3. Whether the settlement was reasonable;

4. The degree of prejudice to either party if settlement is not given effect; and

5. The effect of the settlement on third parties if the settlement is not enforced.

See: Marcel Equipment Ltd. v Equipements Benoit D’Amour et Fils Inc., [1995] O. J. No. 673.

39 The discretion to refuse to enforce the settlement should be “rarely exercised”:

In litigation matters, where properly retained solicitors enter into settlements and where there are no known limitations of authority, these settlements ought to be binding upon the parties. It is the policy of the court and it is public policy to encourage the settlement of actions. Where solicitors have entered into settlement agreements on behalf of their clients, it would be contrary to both court and public policy to foster secondary litigation to overturn those settlements.

See: Homewood v Ahmed, [2003] O. J. No. 4677 para 57

[15] The respondents’ counsel took issue with the applicants’ reference to the parties’ settlement communications on the basis that they were subject to settlement privilege and ought not to be disclosed. Although settlement privilege would usually prevent the disclosure of communications in relation to settlement, without examining the communications between the parties it would be impossible to resolve the dispute as to whether those communications resulted in a settlement. Settlement privilege therefore does not apply to communications that the court must inevitably review in order to determine whether there was a settlement.

[16] Resolution of the settlement issue requires a review of the email communications between counsel subsequent to the December 20, 2019 appearance before Master Short. Counsels’ initial communications did include discussions about settlement of the entire proceeding. However, there were subsequently discussions about resolution of the CPL motion separate from the issues in the underlying application.

[17] The relevant email communications between Mr. Katzman for the applicants and Mr. Singh for the respondents are as follows:

March 31, 2020; Katzman to Singh: “My client is entitled to costs of the cpl motion. To arrive at a consent I am agreeable to reserving those costs to the Applications Judge and then again reserving them to the reference before the Master. I am not agreeable to resolving the cpl motion on a without costs basis as you insist. Our options are as follows:

1. consent to the form of order which I prepared;

2. consent to the substantive portion of the Motion and argue the issue of costs when the Motion returns; or

3. argue the entirety of the Motion when it returns. . . .

Let me know your intentions on the cpl Motion.”

April 1, 2020; Singh to Katzman: “I re-iterate that my client is willing to and has been since day 1 willing to CPL [sic]. . . . As I have mentioned before, send me draft CPL just mentioning that the same is consented and last order lifted and I will sign. There is no ambiguity that CPL is consented to. In person you can raise your argument for reserving costs and I will raise my clients argument that there should be no costs since these costs were easily avoidable and will only further disagreements between clients.” [emphasis added]

April 6, 2020 at 18:54; Singh to Katzman: “My client agrees to the CPL. I called the court clerk and found out we do not have a date for tomorrow [owing to the Covid-19 shutdown]. However, consent motions in writing are being heard. Thus, as far as I understand, we consent to CPL today and we can get that matter sorted out. For costs, you can always argue costs on the Application. Let’s take one step at a time – let’s wrap up CPL first and then work on Application. If your client agrees not to argue costs for CPL but reserve it for Application, we can finalize at least one thing. Pretty sure you will agree that registering CPL is better for your client than mine.”

Mr. Singh then writes two more paragraphs in this email with respect to the possible settlement of the Application itself, before concluding:

“I do encourage to settle CPL motion on consent in writing. That’s one certainty for each of our clients.” [emphasis added]

April 6, 2020 at 23:58; Singh to Katzman: “If you can speak with your client re: payout, we may not require this CPL.” The balance of the message relates to a possible resolution of the entire proceeding by one party “buying out” the other’s interest.

April 8, 2020 at 8:00; Singh to Katzman: This is a further communication regarding the resolution of the entire proceeding by way of a “buy-out”. Mr. Singh suggested a conference call with Mr. Katzman and then with their clients.

The next communication between counsel included in the evidence was more than three weeks later.

May 1, 2020; Katzman to Singh: “I am not instructed to engage in a telephone call. Please confirm that you consent to the cpl draft Order last circulated. Although you continue to assert that your client has always been prepared to consent, that assertion was clearly untrue before or after the issuance of Master Short’s Order. Despite your repeated assertions, I still do not have your consent to the draft Order.

Please also advise as to whether your client will be opposing the relief sought on the Application or if you otherwise will obtain instructions for a consent Order respecting the requested relief of partition and sale.”

May 4, 2020 at 8:00 a.m.; Singh to Katzman: “I am not sure what you are referring to because if you read any of my past emails, you will notice that my client has been consenting to the CPL from day one. . . . My client consents to CPL on terms that I have been very clearly informing you. Please review past emails. . . . No costs for CPL as my client has been very clear and send me the final draft for my clients approval.”

May 4, 2020 at 11:10 a.m.; Katzman to Singh: “I do not understand why there appears to be a disconnect in communication. My client is not prepared to waive costs of the cpl motion. . . . Your terms are not acceptable so I need to understand how we are proceeding when the Courts reopen. These are our options:

1. we can advise the Court that the cpl Order is proceeding on consent and the issue of the Applicants’ costs-thrown-away will be argued before the Master assigned to hear the cpl Motion, ie. the Motion gets confirmed as a hearing as to costs only;

2. we can advise the Court that the cpl Order is proceeding on consent and that the parties request that the issue of costs be reserved to the Applications Judge ie. the Motion gets confirmed as an Order on consent; or

3. we can argue the entirety of the Motion ie. The Motion gets confirmed as a hearing of all issues;

There isn’t a fourth option where we agree that there be no costs of the Motion because my clients do not and will not agree to that, and I do not and will not recommend that they consider it. . . . Three options. Please choose one.”

May 4, 2020 at 8:57 p.m.; Singh to Katzman: “I have made it clear that its either no costs or option 1 where we consent to CPL and then have no costs.”

May 5, 2020; Katzman to Singh: “There is not an option 1 with no costs. Option 1 is that we advise that the substantive order is on consent and we are arguing the issue of costs. . . I will assume that your client consents to the cpl Order but wishes to argue the issue of costs before the Master. If that is incorrect, please advise.”

May 6, 2020; Singh to Katzman: “Yes that is correct.”

[18] The applicants submit that the exchange of counsel’s messages between May 4, 2020 and May 6, 2020 resulted in a binding agreement with respect to resolution of this CPL motion.

[19] As stated in paragraph 35 of L-Jalco, supra, “as to the existence of a settlement, the following factors are to be considered: (i) mutual intention to create a legally binding relationship; and (ii) an agreement on all of the essential terms of the settlement.” With respect to the first of these factors, the parties’ counsel were attempting in their communications to resolve the pending CPL motion and the clear inference is that they intended to create a legally binding resolution of that motion.

[20] The second factor from L-Jalco requires a review of counsels’ messages between May 4 and May 6, 2020, summarized as follows:

May 4, 2020: The applicants’ counsel proposed to resolve the CPL motion on the basis that the CPL order be granted on consent and the motion will be argued in respect of costs only.

May 4, 2020: The respondents’ counsel responded that the respondents will agree to no costs or to the proposal (“option 1”) that they consent to a CPL order with no costs.

May 5, 2020: The applicants’ counsel stated there was no “option 1” with no costs. He then asked the respondents’ counsel to confirm whether the respondents would consent to a CPL order with the issue of costs to be argued before the Master.

May 6, 2020: The respondents’ counsel responded that the applicants’ counsel’s understanding was correct.

[21] The respondents’ consent to a CPL order with costs to be argued would constitute an agreement to terms essential to resolve the CPL motion. On this basis, the parties apparently intended to create and ultimately did reach a legally binding agreement.

[22] The Shametis’ position with respect to settlement of this CPL motion is set out in paragraph 58 of Durim Shameti’s sur-reply affidavit sworn September 11, 2020:

58 My counsel has informed me that once again the focus of the CPL motion has changed from its merits to taking undue advantage of the without prejudice settlement communications between the parties and counsel. Therefore, I would like to clarify that I consented to CPL [sic] only if all the issues in this matter were being settled amicably in its [sic] entirety, without further increase in costs to me. [emphasis added]

[23] Based on this evidence, the Shametis submit that they are not bound by any settlement of this CPL motion because they were prepared to consent to a CPL order only if the entire proceeding was settled.

[24] There are two flaws in the Shametis’ submission.

[25] First, Durim Shameti’s sworn statement that his consent to a CPL Order was contingent on the entire action being settled contradicts his counsel’s own statements in the email correspondence reviewed above. Specifically, in his message of April 6, 2020 at 18:54 p.m., the Shametis’ counsel stated that the parties should “wrap up CPL first and then work on Application” and that to “settle CPL motion on consent in writing” would provide certainty for the clients on that issue. These statements clearly contemplate a resolution of the CPL motion separate from the balance of the application and provide the context for the later communications.

[26] Subsequently, in his message of May 1, 2020, the applicants’ counsel proposed a resolution solely of the CPL motion, as reflected by his separate enquiry with respect to the respondents’ position on the application. In his message of May 4, 2020, the applicants’ counsel again made a proposal solely with respect to the CPL motion. Shametis’ counsel, in his responses, never suggested that he would only consider a settlement of all of the issues on the application.

[27] From early April, 2020, both counsel were clearly working towards a resolution of the CPL motion separate from the issues on the application and the Shametis’ counsel gave the applicants’ counsel no reason to think otherwise. Durim Shameti’s contradictory sworn statement after the fact flies in the face of all of the contemporaneous evidence of the parties’ intentions to settle the CPL motion.

[28] The second problem with Durim Shameti’s statement (that he would consent to a CPL order only if all issues in the application were resolved) is that it is impossible to reconcile with the fact that if the issues in the application were resolved, the parties would be agreeing on what to do with the subject property and a CPL would no longer be necessary to preserve its status. Once again, the only logical view of the parties’ communications is that they were resolving the CPL motion so that they could move on to litigate the merits of the proceeding.

[29] Having determined that counsel for the parties did reach a settlement of the CPL motion, I must now consider the factors in paragraph 38 of L-Jalco, supra to determine whether the court should exercise its discretion to enforce the settlement. My consideration of those factors is as follows:

Whether the offer was clear and unequivocal: The applicants’ proposal in their counsel’s email of May 5, 2020 was to “advise [the court] that the substantive order is on consent and we are arguing the issue of cost”. It is difficult to imagine a more straightforward offer.

Whether or not a mistake was made: The Shametis’ counsel’s earlier emails made it clear that the parties were negotiating a settlement of the CPL motion separate from the application. There was no mistake.

Whether the settlement was reasonable: There is essentially agreement that both Rahimi and the Shametis contributed to the acquisition of the subject property so a CPL order would reasonably maintain the status quo with respect to that property. Where the parties could not agree to the disposition of the costs of the CPL motion, it is reasonable to refer that costs dispute to the court for adjudication.

The degree of prejudice to either party if settlement is not given effect: If the settlement of the CPL motion is not given effect, the applicants would be prejudiced by the possibility that the respondents could sell the property that is the focal point of the dispute between them.

The effect of the settlement on third parties if the settlement is not enforced: Enforcing the settlement of the CPL motion will not affect any third parties.

[30] A consideration of all of these factors supports the exercise of the court’s discretion to enforce the settlement.

[31] In the event that my conclusion on the settlement issue is found to be incorrect, I will also consider the issue of the appropriateness of a CPL order in this case, independent of any possible agreement.

2. If the parties did not previously settle the CPL motion, on the basis that a CPL would be issued and registered, is this an appropriate case to grant the applicants leave to register a CPL on the property?

[32] The statutory authority for the issuing of a CPL is the Courts of Justice Act, R.S.O. 1990 c. C. 43, s. 103:

103(1) 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 under subsection (2). [emphasis added]

[33] Rule 42 is the rule of civil procedure applicable to motions for an order issuing a CPL. This rule includes the following subrule 42.01(2):

42.01(2) A party who seeks a certificate of pending litigation shall include a claim for it in the originating process or pleading that commences the proceeding, together with a description of the land in question sufficient for registration.

[34] There is no dispute that the Notice of Application contains a claim by 265 Ontario for leave to issue and register a CPL on the property.

[35] The case law on the issue of when the court should grant an order issuing a CPL was well summarized by Master Glustein (as he then was) in Perruzza v. Spatone, 2010 ONSC 841, at para. 20:

20 I rely on the following legal principles:

(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 CanLII 6832 (ON CA), 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 CanLII 1414 (ON SC), 1977 CarswellOnt 1026 (Div. Ct.) at para. 9).

[36] The first principle in Perruzza is that the test on a motion for leave to issue a CPL made on notice is the same as on a motion to discharge a CPL. Accordingly, the factors for the court to consider on this motion include those from 572383 Ontario Inc. v. Dhunna set out at item (iv) of the quoted paragraph.

[37] I note that the respondents raise two issues in their factum, the first being whether the applicants are entitled to a CPL and the second being whether, if granted, the CPL should be discharged. This is a peculiar approach. Given that the test on a motion to issue a CPL on notice is the same as on a motion to discharge a CPL, it is unthinkable that the court might apply the test to order a CPL to be issued and then, applying the same test, discharge the CPL that it had just granted. I will therefore simply consider the applicable principles from Perruzza to determine whether a CPL order should be granted.

[38] The issue to be addressed under items (ii) and (iii) in paragraph 20 of Perruzza is whether there is a triable issue in respect of the interest in the subject property claimed by the applicants.

[39] It is common ground that both the applicants and respondents contributed financially to the acquisition and/or maintenance of the property and their disagreement as to the amounts that each contributed simply confirms that there is a triable issue in relation to their relative shares of interest. Much of the respondents’ argument on this motion relates to the formation of the initial relationship between the parties, and the involvement of the lawyer who prepared the various documents signed by the parties including the Shareholder Agreement and the Trust Agreement. The fact that the respondents may challenge the validity of those agreements when the application itself is heard simply gives rise to another triable issue in the application.

[40] Turning to the Dhunna factors, the respondents submit that the court should refuse to grant an order to issue a CPL because the property in question was acquired by the parties as an investment property and the parties’ dispute is therefore really about how much money they should get out of the property rather than the property itself. While there is little doubt that damages would be a satisfactory remedy, the parties acquired the property jointly as an investment and a refusal to grant the requested CPL would enable the respondents to sell it to the applicants’ detriment.

[41] The final issue is, based on paragraph 20 (v) in Perruzza, how the court should exercise its discretion in equity based on all relevant matters.

[42] The respondents submit that the applicants should not be entitled to an order allowing them to register a CPL because they did not pursue the remedy of a CPL with reasonable diligence and therefore lack the requisite “clean hands”. This argument has no merit. The motion for a CPL was precipitated by the Shametis’ registration of a $2,000,000.00 mortgage on the property on September 27, 2019, which the applicants allege was a breach of the Trust Agreement. The applicants did not learn of this mortgage until early November, 2019 and commenced this proceeding with the issuance of the Notice of Application on December 18, 2019. The applicants had no ability to seek a CPL until the application was commenced and immediately after doing so, they brought their CPL motion on December 20, 2019. So, the applicants acted promptly to commence the proceeding on learning of the respondents’ breach of the Trust Agreement and then moved for the CPL two days later. There is therefore not even a hint of the unreasonable delay alleged by the respondents.

[43] Notwithstanding that title to the property was registered to the Shametis, it was acquired jointly by the parties for investment purposes. Given that all the issues between the parties relate to their relative degrees of interest in the property, and there are triable issues with respect those competing interests, equity dictates that the status of the property be preserved until those issues are resolved. This is therefore an appropriate case to order that a CPL be issued.

Summary and decision

[44] For the reasons set out above, I conclude that on May 6, 2020, the parties entered into a binding agreement to resolve the applicants’ motion for an order granting leave to issue a CPL on the property. I also conclude and order that, independent of any such agreement, the applicants be granted leave to issue and register a CPL against title to the property municipally described as 192 Lord Seaton Road, Toronto, Ontario, as described in Schedule A to the notice of motion.

Costs

[45] The parties have filed costs outlines. If they cannot agree on the disposition of the costs of the motion, they may make written submissions, not exceeding three pages, the applicants within 30 days and the respondents within 20 days following delivery of the applicants’ submissions. The longer period allowed for the applicants’ submissions takes into account the upcoming holiday period.

MASTER GRAHAM

December 22, 2020