COURT FILE NO.: CV-18-7861 DATE: 2021 02 24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Swarandeep Chhabra, Plaintiff/Responding Party AND: Sarvpreet Singh Maken, 2382954 Ontario Inc., oba Refurb Technology Inc., 2459427 Ontario Inc. oba Qsystems Inc., Coretek Solutions Inc., and Point Quared Inc., Defendants and (except for Point Squared Inc.) Moving Parties

BEFORE: Conlan J.

COUNSEL: Ms. P. Sangwan, Counsel for the Plaintiff/Responding Party Mr. J. Quigley, Counsel for the Moving Parties (Point Squared Inc. not appearing) Ms. K. Maccoon, Counsel for Rasna Kaur Suri and Veeru Parmjeet, proposed added parties and Respondents on the Motion

HEARD: February 22, 2021

ENDORSEMENT

I. Introduction

The Motion

[1] The Motion before the Court is brought by these Defendants – Sarvpreet Singh Maken (“Maken”), 2382954 Ontario Inc. oba Refurb Technology Inc., 2459427 Ontario Inc. oba Qsystems Inc., and Coretek Solutions Inc., collectively referred to hereinafter as “these Defendants”.

[2] The Defendant, Point Squared Inc., is not a moving party.

[3] The party Respondent on the Motion is the Plaintiff, Swarandeep Chhabra (“Chhabra”). Chhabra opposes the Motion in its entirety. The non-parties Respondents on the Motion (those whom Maken intends to include as Defendants to his proposed Counterclaim) are Rasna Kaur Suri (“Suri”), Chhabra’s wife, and Veeru Paramjeet (“Paramjeet”), Chhabra’s sister. Suri and Paramjeet oppose only part of the relief being sought in the Motion.

[4] The Notice of Motion, dated 12 February 2020, seeks:

(i) leave to amend the Statement of Defence to include a Counterclaim and then to serve and file the amended pleading;

(ii) leave to obtain a Certificate of Pending Litigation (“CPL”) against the property known municipally as 24 Quailvalley Drive, Brampton, Ontario (the “Property”); and

(iii) costs.

[5] The Notice of Motion sets out the following grounds, 1 through 14.

1. The Plaintiff, Swarandeep Chhabra ("Chhabra") and the Defendant Sarvpreet Singh Maken ("Maken") each held 50% of the issued and outstanding shares in the Defendant company 2382954 Ontario Inc. oba Refurb Technology Inc. ("Refurb").
2. Notwithstanding that Chhabra held 50% of Refurb's shares, it was Maken who carried out the day-to-day affairs of the corporation and was responsible for its management. Chhabra was nothing other than a "silent partner".
3. Chhabra was a full-time employee at CNB Computers Inc. ("CNB") from July 24, 2016 to February 26, 2015.
4. On or around May 15, 2015, CNB commenced an action against Chhabra and Maken seeking various injunctive relief against these parties, alleging, inter alia, that they attended to competing directly with CNB while both being employed by it, with allegations that such competition was in breach of their obligations as employees.
5. On March 11, 2015, Chhabra, being aware of the imminent claim of CNB, transferred his shares in Refurb to Maken in order to avoid further exposure to CNB.
6. Also on May 15, 2015, being the same date that CNB issued its Statement of Claim, Chhabra transferred his interest in the Property to his wife Rasna Kaur Suri ("Suri") and his sister Paramjeet Veeru ("Veeru") for no consideration (the "Impugned Transfer"), with the intent to defeat, delay and hinder CNB and his other creditors which had the effect of putting the Property beyond the reach of Chhabra's creditors.
7. On February 5, 2019 Chhabra brought a motion for a "representation", "an injunction" and the production of documents. The Defendants, except Point Square, brought a cross-motion for costs thrown away as a result of Chhabra's motion for a Mareva injunction, which was ultimately abandoned. The Defendants were successful both on their own motion as well as defending Chhabra's motion and were award $27,000.00 in costs. The successful Defendants garnisheed Mr. Chhabbra's (sic) bank account and received a nominal $34.99. Notwithstanding the relatively unsuccessful garnishment, the Defendants have been receiving monthly payments of approximately $2,000 from Mr. Chhabra on account of the cost award. As part of the Defendants' efforts at enforcing the cost award, they discovered the Impugned Transfer.
8. The Defendants seek to amend the Statement of Defence to include a Counterclaim including a declaration that the Impugned Transfer is fraudulent and be set aside, on behalf of the Defendants and all other creditors of Chhabra.
9. The proposed amendments include and necessitate the addition of new parties, Suri and Veeru, as recipients of the Transfer and whose rights to the Property are being challenged.
10. An interest in land is claimed in this proceeding;
11. As contained in the Affidavit of Sarvpreet Singh Maken and exhibits annexed thereto;
12. Rules 1.04, 26.02, 27.01(1), 27.01(2), 27.02, 27.03 and 42 of the Rules of Civil Procedure;
13. Section 103 of the Courts of Justice Act; and
14. Such further and other grounds as counsel may advise and this Honorable Court may permit.

The Positions of the Parties on the Motion

The Amendment of the Pleading

[6] On the proposed amended pleading, these Defendants submit the following, taken from paragraphs 21-22 of their factum dated February 13, 2020.

21. A defendant who has delivered a statement of defence that does not contain a counterclaim and who wishes to counterclaim against the plaintiff and another person who is not already a party to the main action may, with leave of the court, have the registrar issue an amended statement of defence and counterclaim.
22. In the present case, no prejudice to the Plaintiff or Proposed Defendants by Counterclaim that could not be compensated for would result from an amendment to the Statement of Defence to include the Counterclaim. Therefore, leave of the court to issue an amended statement of defence and counterclaim ought to be granted.

[7] On the other hand, Chhabra asserts as follows at paragraphs 14-15 and 17-18 of his factum.

14. The Defendants plead no chain of events that indicate a cause of action that harmed or caused damage of any kind to the parties outside the costs awarded on a motion. These Defendants are neither creditors nor do they have any judgement against the Plaintiff; instead they rely on awarded costs (already paid) and obiter dictum of the judge who expressed her opinions before a full dressed trial and only to the limited extent of the disposition of the motion without a full consideration of all relevant evidence.
15. The counterclaim is not maintainable because, as of the date of the claim, there should be an available right to the defendant (plaintiff by way of counter claim) against the plaintiff (proposed defendant by way of counter claim) that is capable of it own sustenance as an independent claim for the reasons discussed below and accordingly, the motion should not be granted
16. Case law entails, that court should not refuse an amendment to a pleading unless it is clearly impossible that the claim will succeed or where prejudice would result. The bar to cross to get an amendment is very low and rightly so. Through these parameters, parties seeking justice have fair access to their rightful day in court; however while wide, there are limits in place to avoid abuse and exasperation of the courts and the other parties.
17. In Teva Canada Limited v. Gilead Sciences Inc., 2016 FCA 176, the court held that “if the grounds do not have some reasonable prospect of success allowing them into the litigation does nothing other than to complicate and protract it needlessly and pointlessly” (Footnote 10 Teva Canada Limited v. Gilead Sciences Inc., 2016 FCA 176. Para:28). “The chances of success”, the court indicates, “[is] more than … whether there is just a mathematical chance of success… [it] must be examined in the context of the law and the litigation process, and a realistic view must be taken” (Footnote 11 R. v. Imperial Tobacco Canada Ltd. 2011 SCC 42).

[8] Quite responsibly, Suri and Paramjeet have not opposed the Motion as it pertains to the proposed amended pleading to be delivered by these Defendants.

The CPL

[9] On the issue of the CPL, these Defendants submit as follows, taken from paragraphs 23 and 27-38 of their factum.

23. A CPL may be issued when a proceeding is commenced in which title to or interest in land is in question. Courts of Justice Act R.S.O. 1990, c.C43 (“CJA”) s. 103

24. Here, the Defendants are already creditors of Chhabra who has failed to pay the full $27,000 cost award.

25. Furthermore, Justice Chozik at paragraph 4 in her reasons for decision dated March 13, 2019 remarked that the Statement of Claim is dated April 7, 2017 and on its face appears to be outside the limitation period of two years, being consistent with the limitation defence pleaded. It therefore only a matter of time until judgment is rendered in favour of the Defendants such that there is a high probability of success.

26. The burden is on the Defendants to introduce evidence that demonstrates the granting of the Impugned Transfer was done with the intent to defeat or delay Chhabra’s creditors. Evidence where the transfer was for less than fair market value lightens the burden. To meet the test, the Defendants must only show that on the evidence a trial judge could conclude that the transfer was made to defeat creditors for no real consideration. It has been held that an action which on its face seeks to set aside a fraudulent conveyance is an action which “title to an interest and land” is brought into question. Gamble & Rogers Ltd. V. Horizon Meat Packers Inc. (“Gamble”) 2016 ONSC 5681 at para 51.

27. The Defendants claim for a CPL arises as a result of Chhabra having transferred his 50% interest in the Property to his spouse and sister on or around the exact same day that CNB commenced an action against him. The effect of the impugned transfer is such that it removes the available equity in the Property in circumstances where the Defendants allege it was granted for no or nominal consideration with the intent to defeat, hinder delay and/or defraud the Defendants and Chhabra’s other creditors within the meaning of s.2 of the Fraudulent Conveyances Act which provides:

    Where conveyances void as against creditors

    Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns. R.S.O. 1980, c. 176, s.2.

28. Chhabra, having been aware of CNB’s imminent claim prior to it being issued, took steps to protect himself from exposure to CNB and his other creditors by transferring his interest in the Property to his spouse Suri and his sister Veeru for nominal consideration, with the intention of delaying, hindering, defeating and/or defrauding his Creditors.

29. In most cases, a finding concerning the necessary intention to defeat creditors cannot be made except by drawing an inference from the circumstances. It has been recognized there are judicial difficulties in establishing fraud by ascertaining the state of mind of the debtor; that is, the dominant motive for effecting the impugned transaction. In the absence of direct evidence of intent, the courts have been ready to rely on the surrounding circumstances as establishing prima facie the intent to defraud which have been colloquially known as “badges of fraud”. These are nothing more than typical and suspicious fact situations which may be enough to enable the court to make a finding. Indcondo Building Corp. v. Sloan 2014 ONSC 4018 at paras 50 to 51.

30. Here, the “badges of fraud” that were present at the time Chhabara (sic) transferred the Property to Suri and Veeru are plentiful and include: a. The relationship between the parties was non-arms length; b. There was no or inadequate consideration for the Transfer; c. The Tranfer (sic) was made at a time where legal proceedings had been commenced or were on the verge of being commenced against Chhabra, having been registered the same day as CNB’s Statement of Claim was issued; d. The parties continued and continue to have involvement with each other; e. Chhabra continues to reside at and enjoy the use of the Property; f. Chhabra has and continues to pay for substantially all of the Property’s expenses; g. The effect of the Transfer was to dispose of Chhabra’s significant asset for no consideration; h. The Transfer had the effect of defeating, hindering, delaying and/or defrauding Chhabra’s creditors; i. The Transfer took place around the same time that Chhabra had taken other steps to defeat his creditors, including the aforementioned share transfer on or around March 11, 2015.

31. The Plaintiff contends that Chhabra, Suri and Veeru as non-arm length parties, have acted in concert with a view to defeating, defrauding and delaying the Chhabra’s creditors by transferring the Property in circumstances where these parties, or any one of them, stood to gain a benefit particulars of which have yet to be ascertained.

32. The Plaintiff also relies on the Assignment and Preferences Act, in particular section 4 thereof which provides:

    Unjust preferences

    4(2) Subject to section 5, every such gift, conveyance, assignment or transfer, delivery over or payment made by a person being at the time in insolvent circumstances, or unable to pay his, her or its debts in full, or knowing himself, herself or itself to be on the eve of insolvency, to or for a creditor with the intent to give such creditor an unjust preference over other creditors or over any one or more than is void as against the creditor or creditors injured, delayed, prejudiced or postponed. R.S.O. 1990, c. A.33, s. 4(2).

33. The courts have held that in cases involving conveyances between near relatives under suspicious circumstances, which conveyances have the effect of defeating the claims of creditors, the fact of the relationship coupled with the suspicious circumstances establishes a prima facie case which casts an evidentiary burden upon the defendants to establish the bona fides of the transaction. This is precisely what we have at bar thereby rendering a prima facie case for the fraudulent conveyance as pleaded. The Defendants also acknowledges that this motion for a CPL is not the venue where the court makes a final determinations as to bona fides – that will be for the trial judge. So long as the Defendants establish based on the evidentiary record that a trial judge could conclude the transfer was made to defeat creditors then the test to meet has been met. Xerox Canada v. Sterling, 41 C.B.R. (5th) 152 at para 28.

34. Granting the CPL will serve to benefit the Defendants and Chhabra’s other creditors to ensure that the bona fides of the impugned charge is ascertained in the circumstances where it is expected that it will be declared null and void. If the Defendants are found to be wrong at law, there are remedies available to Chhabra and costs consequences that may follow to balance the proverbial scales.

35. Based on the facts of this dispute, in particular the “badges of fraud” referenced herein, the Defendants are sensitive to the fact that absent the granting of the CPL Chhabra and/or the proposed new Defendants will take further steps to deal with the Property to encumber it or put it beyond the reach of the Defendants and Chhabra’s other creditors such as CNB. Issuance of the CPL will ensure that the status quo is maintained pending an adjudication of this matter on the merits.

[10] Chhabra, however, argues the following at paragraphs 20-21, 28, and 45-50 of his factum.

20. The first threshold to meet for a CPL to be awarded, was reaffirmed by Justice Peterson in 2254069 Ontario Inc. v. Kim, 2017 ONSC 5003, asks “is there a triable issue in respect of the moving party’s claim to an interest in the property?” (Footnote 12 - 2254069 Ontario Inc. v. Kim, 2017 ONSC 5003).
21. In the case at bar, the answer is in the negative, the moving parties have no triable issue against the Defendants at all, let alone through a claim to an interest in the property.
22. Even if it is determined that there is a triable issue to establish the moving party’s interest in land, the test set out in Pacione v. Pacione, 2019 ONSC 813, indicates the next set of factors to consider before awarding a CPL., and if the CPL is an equitable form of relief; these guidelines include: a) whether the plaintiff is a shell corporation; which would indicate the shell corporations ability to avoid satisfying any damages that may be awarded. b) whether the land is unique; it is not unique or related to the case at bar. c) the intent of the parties in acquiring the land. The moving parties have no interest in the land, and the intent to register the CPL appears to be nothing more than an attempt to complicate and prolong the matter and pressure the Plaintiff to withdraw his claim, or a long an winded way to secure costs that they are argue may be awarded when the matter goes to trial. d) Whether there is an alternative claim for damages; there are not damages to be claimed. e) The harms to each party if the CPL is or is not removed with or without security. The harm the owners of the property would suffer due to the limits of a CPL on their property is arguably disproportionate to the benefits the moving party may receive from the CPL especially considering how far removed the property is from any rights of the moving party or this matter. f) Whether the interests of the party seeking the CPL can be adequately protected by another form of security. The Plaintiff has proven his ability to pay costs and his respect for the courts and deference towards the court’s orders and the Defendants have placed writs to secure their interests. Currently, the Moving Party has no interests that are in need of protection. g) Whether the moving party has prosecuted the proceeding with reasonable diligence. The moving party brought this counterclaim via amendment 5 years after having knowledge that the property was transferred; the same does not indicate reasonable diligence.
23. Grefford v. Fielding specifies “to obtain a certificate in a fraudulent conveyance action, where no judgement has been obtained in the main action and the claim in the main action does not directly concern the interest in land,” as it is in the case at bar, “the Plaintiff (in here the plaintiff by counterclaim) must show”: a) High probability of success in the main action b) The conveyance was intended to defeat creditors and the balance of the convenience favours issuing a certificate. (Footnote 27 Grefford v. Fielding [2004] O.T.C. 272 (SC)).
24. The counterclaim included in the amended defence is not maintainable because the reliefs sought in it have no reasonable cause of action that could succeed. Given the case law and facts assessed above, the counterclaim added to the amended defence does not have a high probability of success. To allow the owners of the subject property to suffer the cost of litigation, the effect the CPL will have on their ability to manage their property is unreasonable and should not be allowed; especially considering how far removed the property is from the claim.
25. The amendment proposed by the moving party appears to be an attempt to secure costs they believe they will be awarded at the end of the trial. The Defendants rely on the orbiter dictum from the order of the motion judge to indicate a probable chance that the Claim brought by Mr. Chhabra is not maintainable and may not lead to a successful claim; but this remains to be evaluated by the honourable court at trial.
26. Mr. Chhabra has shown at every opportunity that he is willing, able, and committed to fulfilling the obligations he owes. He satisfied the costs order, and remains in good standing with any creditors he may have.
27. To allow a claim seeking a CPL, a judgement of fraudulent conveyance, and an order nullifying the transfer, all before a judgement being issued, without creditors and without a legitimate claim would be unreasonable. To allow it threatens the security and reliability of the land registry and disproportionately harms the current owners.
28. The Plaintiff/Responding party, submits that the motion to amend the claim to include fraudulent conveyance and subsequent CPL in not maintainable for the multiple reasons analysed above. This finding is at the core of every other relief sought by the moving party both in the motion and the proposed amended defence and counterclaim.

[11] Suri and Paramjeet oppose the granting of the CPL, and their position is encapsulated at paragraphs 1 through 8 of their factum, set out below.

1. The Defendants bring a frivolous and vexations motion to add the Plaintiff’s Spouse, Rasna Kaur Suri and sister, Paramjeet Veeru, as Parties to their Statement of Defence and Counterclaim.
2. The Defendants further bring this Motion for the issuance of Certificate of Pending Litigation (hereinafter "CPL") against matrimonial property in Brampton (defined below as the "Property"). The underlying action arises out of a dispute between two relatives - the Plaintiff, Swarandeep Chhabra and the Defendants, Sarvpreet Singh Maken - over the dissolution of their business interests.
3. The Defendants’ claim is misconceived: no legal liability flows from these actions. The Statement of Defence and Counterclaim discloses no reasonable claim to an interest in land.
4. This Motion is merely an attempt to further delay and obstruct the efforts by the Plaintiff to move on and to bring an end to a difficult business relationship with the Defendants.
5. The practical effect of the issuance of a CPL would be to freeze the Property and prevent the title holders from dealing with it while this action goes on. In the circumstances, it would be unjust to allow the Defendants to create further delays and impose additional hardships on the Plaintiff by adding Parties and ordering that a CPL be issued for the Property.
6. Even if the Defendants had a reasonable claim to an interest in land, the Court must examine the equities relating to the property and the Parties. A CPL does not issue automatically in cases where an interest in land is at stake. Courts have recognized that a CPL is a remedy akin to injunctive relief that can result in severe hardship. Accordingly, the Court has broad discretion to consider the equities of the situation and determine if such cumbersome relief is warranted.
7. In this case, such relief is not warranted. The equities point to the status quo being maintained. The Property is a matrimonial home, held for domestic purposes. In the unlikely event that any legal liability is found on the part of the Plaintiff, damages would be calculable and adequate.
8. This is an abusive filing seeking to disempower the Plaintiff and wreak havoc on the lives of his Spouse and Sister (the “Responding Parties to this Motion”) by dragging them into an acrimonious business dispute.

The Issues and the Burden and the Standard of Proof

[12] There are two substantive issues for this Court to decide:

(i) should the pleading of these Defendants be allowed to be amended as they have suggested; and

(ii) should the CPL be granted as requested?

[13] There is nothing tricky about the burden or the standard of proof here; on each issue it lies with these Defendants, on a balance of probabilities.

[14] The caveat, of course, is that Rule 26.01 creates a presumption in favour of granting leave to amend a pleading; leave shall be granted unless it would cause prejudice that could not be compensated for by costs or an adjournment.

[15] It is relatively infrequent that a party responding to a leave to amend a pleading motion is able to point to that kind of prejudice.

II. Analysis and Conclusion

[16] For the reasons that follow, I have determined that the Motion should be granted in part. Issue number one, identified above, the amendment of the pleading question, is resolved in favour of these Defendants. Issue number two, however, that related to the CPL, is resolved against these Defendants.

The Amendment of the Pleading

[17] Issue number one is easily disposed of. There is simply no merit to Chhabra’s opposition to these Defendants’ request to deliver their proposed amended pleading. That part of the Motion ought to have been consented to, or at least not opposed.

[18] In oral submissions, Ms. Sangwan, counsel for Chhabra, argued that the words “on such terms as are just” contained in Rule 26.01 mean that this Court should consider the merits of the proposed Counterclaim. I disagree.

[19] Those words have absolutely nothing to do with what a court should consider in deciding whether to grant leave to amend a pleading. Rather, they relate to things that a court may attach as conditions or terms to the granting of the leave to amend, such as costs against the moving party, or a lengthier than usual period of time for the other side to deliver its response to the amended pleading, as two examples only.

[20] It is not for this Court to delve into the substance of the proposed Counterclaim and to assess to much degree the likelihood of its success. Provided that the proposed amended pleading is not clearly bound to be struck, under Rule 2.1.01 or Rule 25.11 for example, at this stage of the proceeding and in the absence of a consideration of prejudice, the amendment should generally be permitted. That is the case here.

[21] Turning to that prejudice consideration, in oral submissions, Ms. Sangwan asserted that the prejudice to Chhabra is the “continued avoidance of relief” in his main action against these Defendants. I take that to mean that the proposed Counterclaim will only serve to unduly delay and complicate the proceeding and, consequently, increase Chhabra’s legal costs.

[22] With respect, that does not come anywhere close to the type of prejudice that might cause a court to deny leave to amend a pleading. In fact, those are inescapable consequences of every amended pleading.

[23] Thus, this Court orders that these Defendants shall be granted leave to deliver the Fresh as Amended Statement of Defence and Counterclaim substantially in the form annexed as Schedule “B” to their Notice of Motion dated 12 February 2020.

The CPL

The Law

[24] All three counsel, whether in written submissions or oral submissions or both, took this Court to the decision of my colleague, Justice R. Smith, in Grefford v. Fielding. All three counsel agree, and I concur, that the said decision is directly applicable to our facts.

[25] In that case, as in ours, the issue was what must be established in order to obtain a CPL in an action (or in our case, the Counterclaim) claiming to set aside an alleged fraudulent transfer before obtaining judgment in that action (or in our case, the Counterclaim) and where that action (or in our case, the Counterclaim) does not concern an interest in the land alleged to have been fraudulently conveyed.

[26] In that case, it was held that the CPL claimant must show (i) that there is a high probability that it would recover judgment in the action (or in our case, the Counterclaim), and (ii) that the transfer was made with the intent to defeat or delay creditors, and (iii) that the balance of convenience favours issuing a CPL in all of the circumstances.

[27] All three counsel agree, and I concur, that this Court should employ that test.

The Law as Applied to our Facts

[28] Even if this Court assumes, without deciding, that (i) there is a high probability that these Defendants will recover judgment in their Counterclaim and, further, (ii) the impugned transfer was done by Chhabra with the intent to defeat or delay creditors, which assumptions I am prepared to make strictly for the purpose of this analysis, I am not satisfied that the balance of convenience favours the issuance of a CPL in these circumstances.

[29] Hence, the relief requested must be denied.

[30] With respect, I think that what has motivated the request for a CPL is a belief by these Defendants that Chhabra’s main action is very weak and is bound to fail, and these Defendants will not be able to recover costs that are likely to be awarded in their favour.

[31] It is akin to a motion for security for costs but brought under a different name.

[32] I do not necessarily criticize these Defendants for making the request. When the original Motion was filed, they had not been paid a very sizeable costs award made against Chhabra – Chhabra v. Maken, 2019 ONSC 1655, a decision of Chozik J. In that decision, my colleague had dismissed a Motion brought by Chhabra and, in the course of doing so, not only ordered that Chhabra pay some $30,000.00 in total costs on a substantial indemnity scale but also made certain remarks that suggested that Chhabra’s entire action was rather dubious (my word).

[33] So be it. Now, however, Chhabra has fully paid all of those costs, as massive as they were, and there is no reason to think that any future costs award that might be made in favour of these Defendants will remain unpaid or will be unenforceable.

[34] In addition, I agree with Ms. Maccoon that the two persons who will most adversely be impacted by the CPL, if granted, are Suri and Paramjeet. And those two persons, when one examines carefully the draft Fresh as Amended Statement of Defence and Counterclaim, are clearly not the targets of these Defendants’ allegations of fraud and dishonesty; that target is Chhabra.

[35] Finally, there are plenty of other tools in the Rules of Civil Procedure toolbox that these Defendants can resort to if they believe that Chhabra’s claim is bound to fail, whether on the ground of a limitation period problem or otherwise. They know what those tools are. A CPL against the Property is simply unnecessary and, in my respectful view, would be inappropriate.

[36] Thus, that portion of the Motion is dismissed.

Costs

[37] The Motion has been allowed in part, and there has been some mixed success overall. Still, if counsel cannot agree on costs, they may contact the trial office in Milton to arrange a Zoom attendance to deal with that issue by way of brief oral submissions.

[38] I thank all counsel for their assistance in this matter.

(“ Original signed by ”)

Conlan J.

Date: February 24, 2021