Court File and Parties
COURT FILE NO.: CV-20-637796
DATE: 20210526
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GHADA KASSAB Plaintiff
– and –
MARGARET ABRAHEM, EHAB KASSAB and BANK OF MONTREAL Defendants
COUNSEL:
Alfred Schorr, for the Responding Party Plaintiff
Maurice W. Pilon and Johanne S. Pilon, for the Moving Party Defendant, Margaret Abrahem
Mina Ghabryal, for the Responding Party Defendant, Ehab Kassab
Maureen Doherty, for the Defendant, Bank of Montreal
HEARD: May 4, 2021
BEFORE: A.A SANFILIPPO J.
ENDORSEMENT
Overview
[1] On September 28, 2009, Margaret Abrahem took title to a detached residential property as its sole registered owner. According to a Declaration of Trust executed that day, Ms. Abrahem declared that her ownership was subject to equal one-third interests in favour of the Plaintiff, Ghada Kassab and her brother, the Defendant Ehab Kassab. Ms. Abrahem’s purchase of the Property was supported by a mortgage registered in favour of the Defendant, the Bank of Montreal (BMO”).
[2] Ms. Abrahem, Ms. Kassab and Mr. Kassab resided in the Property until some four years later, in 2013, when Mr. Kassab moved out. Ms. Abrahem and Ms. Kassab contend that they entered into an agreement with Mr. Kassab to purchase his one-third interest for $100,000, leaving Ms. Abrahem and Ms. Kassab equal 50% owners. Mr. Kassab denied that any such agreement was reached.
[3] Ms. Abrahem refinanced the Property with BMO some ten years after its purchase, on September 20, 2019, increasing the amount of the mortgage and removing equity from the Property to the exclusion of Ms. Kassab and Mr. Kassab. Ms. Abrahem contended that this refinancing was completed with Ms. Kassab and Mr. Kassab’s knowledge. Ms. Kassab disagreed.
[4] On March 10, 2020, Ms. Kassab sued Ms. Abrahem and Mr. Kassab to recover the monetary value of her interest in the Property. Ms. Kassab initially pleaded entitlement to an Order for partition and sale of the Property pursuant to the provisions of the Partition Act, R.S.O., 1990, c. P.4 (the "Partition Act"), including a court-supervised sale of the Property. Ms. Abrahem and Mr. Kassab supported this relief in their defence pleadings. Ms. Kassab later obtained leave to amend her statement of claim to withdraw her request for the partition and sale of the Property.
[5] Ms. Abrahem brought this motion for an Order for partition and sale of the Property, including terms for supervision of the sale in the context of continued conflict, requesting that the funds be held in trust pending the determination of the issues raised by this action. Ms. Kassab, supported by Mr. Kassab, objected, principally on the basis that Ms. Abrahem has already removed equity from the Property in an amount said to approximate if not exceed her share, such that she had no continued interest in the Property, apart from her registered ownership.
[6] On the basis of the reasons that follow, I grant an Order for the sale of the Property under the Partition Act, and order that the net sale proceeds be paid into Court pending the determination of the issues raised by this action. I grant orders regarding the sale process. I will hear the parties further in case conference to implement a timetable for the orderly progression of this action to trial, and to address any issues that might arise in the sale process.
I. THE FACTUAL RECORD
[7] The following facts were not in dispute:
(a) On September 28, 2009, Ms. Abrahem purchased a house municipally known as 47 Mallard Marsh Crescent, Richmond Hill, Ontario (the “Property”), for a purchase price of $580.000. Title to the Property was taken solely by Ms. Abrahem.
(b) The acquisition of the Property was assisted by a mortgage registered on title, at the time of property acquisition in favour of BMO in the principal amount of $534,528 (the “2009 BMO Mortgage”). Ms. Abrahem is the sole mortgagor.
(c) On the day of the Property acquisition, Ms. Abrahem entered into a Declaration of Trust with Ms. Kassab and Mr. Kassab (the “Trust Declaration”) which, the parties agree, caused all three parties to have equal one-third (1/3rd) ownership interests in the Property. The Trust Declaration also provided that Ms. Abrahem had “no legal right to borrow any money against the one third (1/3) interest of the said property … without the consent of Ms. Kassab and Mr. Kassab, with the exception of the First Mortgage being presently arranged for the purchase of the said property”.
(d) From 2009 to 2013, all three parties resided in the Property, and all three parties contributed to the financial cost of maintaining the Property.
(e) In November 2013, Mr. Kassab moved out of the Property and, in the eight years since, has not contributed to its expenses, at all. Ms. Abrahem and Ms. Kassab stated that they reached an agreement with Mr. Kassab whereby he would receive $100,000 for his one-third interest in the Property and Ms. Abrahem and Ms. Kassab would each become one-half (50%) owners. Mr. Kassab denied that any such agreement was reached and claims a one-third interest in the Property.
(f) On March 22, 2018, Ms. Kassab purchased a residential property at 143 Tango Crescent, Newmarket, Ontario (the “Newmarket Property”), but she continues to reside in the Property. In March 2018, Ms. Kassab stated that she would no longer contribute to the carrying expenses of the Property and admitted to having stopped doing so in the Fall of 2019, after which Ms. Abrahem has alone paid the Property’s carrying expenses.
(g) By mortgage registered on September 20, 2019, Ms. Abrahem refinanced the Property with BMO (the “2019 Refinancing”), wherein the 2009 BMO Mortgage was discharged and replaced by a new mortgage in the principal amount of $810,000 (the “2019 BMO Mortgage”). After discharge of the 2009 BMO Mortgage, the 2019 Refinancing produced surplus funds totaling $371,139.22 (the “Surplus Funds”). Ms. Abrahem received all the Surplus Funds to the exclusion of Ms. Kassab and Mr. Kassab.
(h) In November 2019, Ms. Abrahem vacated the Property due to conflict with Ms. Kassab. Ms. Abrahem continues to pay the Property’s expenses, including servicing the 2019 BMO Mortgage, while Ms. Kassab continues to reside in the Property.
(i) On March 10, 2020, Ms. Kassab initiated the within action seeking, amongst other relief, damages in the amount of $400,000 and an accounting of all proceeds obtained by Ms. Abrahem from the Property.
[8] There are many facts in dispute, which I will identify as pertinent to my analysis of whether the moving party defendant has established an entitlement to an Order for partition and sale under the Partition Act.
II. ISSUES
[9] This motion raised the following issues:
A. Has the Moving Party, Margaret Abrahem, established the basis for an Order for the partition and sale of the Property?
B. If so, is the Moving Party entitled to the corollary relief sought regarding the process for the sale of the Property?
[10] I will address these issues in order.
III. ANALYSIS
A. Applicable Principles
[11] The legal principles applicable to this Motion were not in dispute. They are well-established.
[12] Section 2 of the Partition Act, provides that a party with a shared interest in land “may be compelled to make or suffer partition or sale of the land”, as follows:
All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
[13] In Davis v. Davis, [1954] D.L.R. 827 (Ont. C.A.), at p. 830, the Ontario Court of Appeal stated that a joint tenant has a right to partition or sale of land and that there is “a corresponding obligation on a joint tenant to permit partition or sale” and “the Court should compel such partition or sale if no sufficient reason appears why such an order should not be made”.
[14] In Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 CanLII 48652 (ON CA), 75 O.R. (3d) 478 (C.A.), at paras. 1-2, the Court of Appeal explained that the principles set out in Davis, have been narrowed whereby the Court’s exercise of its discretion to refuse to make an order for partition and sale is limited to circumstances of malice, oppression and vexatious intent. This was restated and applied in Economopoulos (Re), 2014 ONCA 687, at para. 89: “The scope of the court’s discretion to refuse to make an order of petition [sic] and sale is limited to circumstances of malice, oppression and vexatious intent.”
[15] Ms. Abrahem has the right to seek partition and sale because, as the sole registered owner, she has a right to possession of the Property: Economopoulos (Re), at para. 87, citing 909403 Ontario Ltd. v. DiMichele, 2014 ONCA 261, 319 O.A.C. 72, at para.79; Nobis Investments Ltd. v. Atlantic Metal Spinning Co., 1988 CarswellOnt 1708, [1988] O.J. No. 335, at para. 1 (C.A.); Morrison v. Morrison (1917), 1917 CanLII 536 (ON CA), 39 O.L.R. 163, at pp. 168 and 171-72 (C.A.).
[16] The onus is on Ms. Kassab and Mr. Kassab, the Responding Parties, to demonstrate that there is malicious, vexatious or oppressive conduct to justify a refusal to grant partition and sale: Brienza v. Brienza, 2014 ONSC 6942, at paras. 23-24, citing Davis; Silva v. Bettencourt, [2002] O.J. No. 1878 (S.C.); Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.); Re Hay and Gooderham (1979), 1979 CanLII 1690 (ON SC), 24 O.R. (2d) 701 (Div. Ct.); Garfella Apartments Inc. v. Chouduri, 2010 ONSC 3413 (Div. Ct.).
B. The Parties’ Positions
[17] Ms. Abrahem submitted that she has, for almost 12 years, paid the carrying costs of the Property in amounts greater than her one-third share. She has not resided in the Property, or had use of it, since November 2019, continues to pay the property’s expenses and continues to be financially responsible for the 2019 BMO Mortgage. Ms. Abrahem claims that she is not financially able to continue paying the carrying costs of the Property, which she fears could result in mortgage enforcement proceedings if she should default. Ms. Abrahem submitted that her relationship with the Responding Parties has broken down and seeks partition and sale. She submitted that the net sale proceeds from sale of the Property, after deduction for the 2019 BMO Mortgage, real estate commission, real estate lawyer’s fees and closing adjustments, be paid into trust pending the determination of this action, which would include reconciliation of the Surplus Funds that she received in the 2019 Refinancing. She asks for orders to govern the sale process, considering the ongoing conflict with the Responding Parties.
[18] Ms. Kassab submitted that the Moving Party has engaged in malicious, vexatious or oppressive conduct in the following ways: (i) re-financing the Property without the consent of the Responding Parties; (ii) retaining the Surplus Funds without distribution to the Responding Parties, with the result that the Moving Party has already realized an amount equal to or greater than the monetary value of her interest in the Property; (iii) seeking oppressive terms for the sale of the Property, which excludes participation by the Responding Parties in the sale process; (iv) rendering herself judgment proof through the sale of the Property, including by intending to flee to Australia. Ms. Kassab sought, as a term of the sale of the Property and the payment of the net sale proceeds into Court, that the Moving Party pay into Court the Surplus Funds received by her in the 2019 Refinancing.
[19] Mr. Kassab adopted the submissions of Ms. Kassab in resisting the sale of the Property, even though he continues to seek this relief in his Statement of Defence, Counterclaim and Crossclaim. Mr. Kassab sought an interim payment from the net sale proceeds as a term of the partition and sale of the Property.
BMO took no position on the partition and sale of the Property, provided that the 2019 BMO Mortgage would be repaid and discharged from the sale proceeds. This was not disputed by any party.
C. Analysis
(a) Issue #1 - Has the moving party established the basis for an Order for the partition and sale of the Property?
[20] As explained earlier, the law is well-established that the Court’s exercise of its discretion to refuse partition and sale is narrowly limited to circumstances of malice, oppression and vexatious conduct. In Brienza, at paras. 27-32, Perell J. thoughtfully and comprehensively surveyed the case authorities to catalogue conduct that would rise to the requisite threshold. He commented that malicious, vexatious or oppressive conduct that would result in the Court’s refusal to grant partition and sale must be more than refusing to accommodate the objectives of the co-owner, and must be more than mere disappointment of the co-owner. Further, he observed, at para. 30, that “the doctrine of unclean hands, which is usually associated with the court’s discretion to refuse an equitable remedy, does not add anything or change the law established by the Court of Appeal about the court’s limited discretion to refuse partition and sale.” I adopt and apply these principles.
[21] I also accept that the malicious, vexatious or oppressive conduct relied on by the party opposing the partition and sale must pertain to the partition and sale issue itself, as stated by Ferrier J. in Akman v. Burshtein, [2009] O.J. No. 1499 (S.C.), at para. 38: “Any allegation of malicious, vexatious, or oppressive conduct should relate to the partition and sale issue itself. Specifically, it is necessary to look at the reasonableness of the positions taken by the parties as it relates to the application for partition and sale.” An example of this is seen in Gartree Investments Ltd. v. Cartree Enterprises Ltd. (2002), 2002 CanLII 49640 (ON SC), 22 B.L.R. (3d) 143 (Ont. S.C.), at paras. 74-75, where Cameron J. exercised his discretion to refuse to order partition and sale where he found that the partition and sale was brought in a vexatious and malicious manner because the intent and purpose of the sale transaction was to thwart the legitimate interests of the co-tenant.
[22] Here, the Responding Parties submitted that Ms. Abrahem had “unclean hands” because, they allege, she mislead BMO on the 2019 Refinancing as to the amount of her salary, by creating non-existent pay stubs to falsify her income, and misrepresented her student status to delay activating the requirement that she repay her student loans. This conduct precedes the proposed partition and sale of the Property. Ms. Abrahem denies these allegations. Even if there were a sufficient evidentiary record to determine whether Ms. Abrahem acted dishonestly in the 2019 Refinancing transaction – whether she has “unclean hands” – these issues are pertinent to the action but, in my view, do not assist in my determination of whether the Property ought now to be sold in accordance with s. 2 of the Partition Act.
[23] This analysis applies equally to the allegation that the Moving Party did not have the consent of the Responding Parties to engage in the 2019 Refinancing. Ms. Abrahem deposed that she discussed with Ms. Kassab and Mr. Kassab the necessity to refinance the property, but Ms. Kassab denies that she provided her consent. No evidence was tendered by the third party of interest, Mr. Kassab. Even if I had a sufficient evidentiary record to determine this issue, it is not pertinent to my analysis of whether I ought to enforce the right of Ms. Abrahem to sell the Property and pay the net sale proceeds into Court. I note, as well, Ms. Abrahem’s submission that all parties have breached their agreement to share in the carrying cost of the Property in that Mr. Kassab has not paid one-third of the Property’s carrying expenses since 2013 – almost eight years – and that Ms. Kassab has not paid any amount toward the Property’s expenses since 2018, although she continues to reside there. These issues are pleaded in the action, counterclaims and crossclaims, and will be determined at trial but, in my determination, do not assist in my determination of whether the Property ought now to be sold in accordance with s. 2 of the Partition Act.
[24] The foundation of the Responding Parties’ opposition to this Motion is that Ms. Abrahem has already received as much money, or more than that to which she is entitled as an owner of the Property such that she has no continued monetary entitlement to the value of the Property, and thereby no interest in its disposition. The Moving Party does not dispute that she received the amount of $371,139.22, which I refer to as the “Surplus Funds”, in the 2019 Refinancing. She deposed, however, that of this amount, she received a “personal benefit” of approximately $233,000 and that the remaining amount, approximately $138,139.22, constituted reimbursement that she took for past and projected carrying costs that she alone had paid, and continues to pay for the maintenance and ownership of the Property. Ms. Abrahem deposed that she will account for this personal benefit out of her share of the proceeds realized on sale of the Property.
[25] Ms. Kassab submitted that Ms. Abrahem had received more than the monetary value of her interest in the Property in the 2019 Refinancing, using the following computation: first, presume that the Property had a fair market value in 2019 of $1,150,000, being the value said to have been used by BMO for the purpose of determining the maximum amount of mortgage loan available by refinancing. Second, deduct the amount due on the 2009 BMO Mortgage of $438,860.78 producing an equity in the amount of $711,140 before any refinancing. Third, calculate the monetary amount of Ms. Abrahem’s interest as $237,046 if she is entitled to one-third of the value of the Property, and $305.570 if Ms. Abrahem and Ms. Kassab establish that they concluded an agreement with Mr. Kassab to pay him $100,000 for his interest, with the result that Ms. Kassab and Ms. Abrahem would each have 50% interest.
[26] Ms. Kassab recognized that the claims pleaded in this action necessitate consideration of the value of the parties’ current interest in the Property and urged the same computation in analysis of the parties’ monetary interests in the Property based on its current fair market value. But this analysis could not be conducted on the record before me, for the following reasons:
(a) No party tendered evidence on which I could determine the current value of the Property. The only property valuation evidence tendered by the parties was as follows:
i. Ms. Abrahem annexed to her affidavit a letter dated January 30, 2021, written on blank paper without letterhead, by two Sales Representatives with Re/Max Realty Specialists Inc., stating a fair market value of the Property as of January 30, 2021. This letter was unreliable hearsay and inadmissible: “its evidential value rests on the credibility of an out-of-court assertor who is not subject to the oath, cross-examination or a charge of perjury”: Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4th ed. (Markham, Ont.: LexisNexis, 2014) at § 6.9, at p. 239. The inclusion of hearsay evidence on a central point in issue is not proper: Beach v. Toronto Real Estate Board, 2010 ONSC 30001, 97 C.P.C. (6th) 127, at para. 5; Shah v. LG Chem, Ltd., 2015 ONSC 2628, 125 O.R. (3d) 773, at para. 71; Glasjam Investments Ltd. v. Freedman, 2014 ONSC 3878, at para. 33.
ii. Ms. Kassab deposed that she is a licensed real estate salesperson presently working at Right At Home Realty Inc., and deposed as to her opinion of the “value of the subject property” as of the date of her January 28, 2021 affidavit. I do not accept that this party can provide admissible expert opinion evidence on property valuation within the requirements of the applicable case authorities: R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40; Imeson v. Maryvale, 2018 ONCA 888, 143 O.R. (3d) 241.
(b) There was insufficient evidence to determine the dispute between the parties of interest in the Property regarding whether an agreement was reached to pay Mr. Kassab the amount of $100,000, with the result that the interest of Ms. Abrahem and Ms. Kassab increased to one-half, or whether the parties’ interests in the Property remained at one-third, each. The responding parties did not tender the evidence of Mr. Kassab.
(c) The Moving Party submitted that she intends to amend her Counterclaim to add a claim for occupation rent for the time that Ms. Kassab has lived in the Property without any compensation to Ms. Abrahem or Mr. Kassab.
[27] Most importantly, this action fundamentally concerns an accounting between the Moving Party and the Responding Parties. Both Ms. Kassab and Ms. Abrahem allege that monies are owed to them in their ownership and management of the Property. Ms. Abrahem pleaded that she has been left to pay the carrying costs of a property that she has not resided in since 2019 and has, throughout, paid a disproportionate share of expenses. Ms. Kassab pleaded that she has not paid any carrying costs of the Property since March 2018 (Amended Statement of Claim, para. 24), stated that she has not “paid her share” since the Fall of 2019, but deposed that she has “spent more than $110,000 in improving the property”, which Ms. Abrahem denied. The accounting of payments made by these parties over their 12-year relationship is central to their dispute and cannot be determined on the record on this motion.
[28] The onus is on the parties resisting partition or sale to demonstrate sufficient reasons for refusal. The Responding Parties’ principal position that Ms. Abrahem ought to be denied this relief because she has no financial interest in the Property was, for the reasons explained, incapable of being established on the record before me.
[29] The Responding Parties submitted, further, that the terms sought by the moving party for a judicially supervised sale of the Property were themselves oppressive. I do not accept that the terms sought by the Moving Party’s Notice of Motion for the partition and sale of the Property are grounds on which to find that the Moving Party’s conduct in seeking partition and sale was oppressive.
[30] I do not accept Ms. Kassab’s submission that I ought to refuse to grant the relief sought by the Moving Party in order to prevent Ms. Abrahem from becoming judgment proof and unaccountable for the amounts that she received on the 2019 Refinancing, for three reasons. First, the Responding Parties did not establish, in my view, that Ms. Abrahem, an Ontario dentist, intends to abscond to Australia upon the partition or sale of the Property. Ms. Kassab’s evidence to this effect is speculation and denied by Ms. Abrahem. Second, the Responding Parties did not establish how their ability to enforce any judgment is less meaningful if the equity of the Property is monetized and paid into Court as opposed to enforcement against the Property. Third, even if the Responding Parties had established these issues, they are not, except in certain limited exceptions not present in this record, entitled to execution prior to judgment: Aetna Financial Services Ltd. v. Feigelman, 1985 CanLII 55 (SCC), [1985] 1 S.C.R. 2, at para. 8; Falcon Motor Xpress Ltd. v. Grewal, 2019 ONSC 1529, 90 B.L.R. (5th) 323, at para. 30, quoting from Canwest Pacific Television Inc. v. 147250 Canada Ltd., 1987 CanLII 2653 (BC CA), [1987] B.C.J. No. 1262 (B.C. C.A.).
[31] Last, I will address the Responding Parties’ submission that I should impose, as a term of the partition or sale of the Property, a requirement that the Moving Party pay into Court the Surplus Funds received by her on the 2019 Refinancing. I do not accept this submission for three reasons. First, the Responding Parties did not deliver a cross-motion for this relief. This applies equally to dismiss Mr. Kassab’s submission that he should receive an interim distribution of the amount realized on any sale of the Property, requested in the absence of delivery of a motion. Second, the Responding Parties were not able to refer me to any authority for making such an Order under the Partition Act, or otherwise. Third, this submission hinges on an accounting between the parties pertaining to their financial contributions to the Property expenses which, again, cannot be determined on this motion record.
[32] In summary, I adopt the comment made by Ryan Bell J. in O’Brien v. McGilvray, 2018 ONSC 2442, at para. 14, relying on Greenbanktree, at para. 31: “Partition or sale is the law’s answer when joint owners can no longer get along”. That is the case here. The intent and purpose of Ms. Abrahem’s motion is, in my determination, to monetize the value of the Property so that the equity in the Property can then be divided by the parties in accordance with the degree of their ownership, and to liquidate the Property so that the Moving Party is relieved of the obligation to pay for the ongoing expenses. The Responding Parties have not established, in my determination, malicious, oppressive or vexatious conduct that would support the exercise of my discretion to deny the relief sought.
[33] I thereby conclude that the moving party, Ms. Abrahem, has established that the Responding Parties shall “be compelled to make or suffer partition or sale”, in accordance with s. 2 of the Partition Act. I order, on the agreement of the parties, that the net sale proceeds from the sale of the Property, after deduction for discharge of any encumbrances registered on title to the Property, including the mortgage held by the Bank of Montreal, real estate commissions, legal fees and usual closing adjustments, shall be held in trust held pending determination of this action. I order that these trust funds be paid into the Accountant of this Court by the real estate lawyer handling the closing of the sale of the Property.
(b) Issue #2 - The corollary relief regarding the process for the sale of the Property
[34] The Moving Party sought collateral relief for the sale process that presumed that the Responding Parties would not cooperate. This was evident from the order sought to dispense with the Responding Parties’ consent and signature for the sale of the Property, an order that Ms. Kassab is required to act reasonably and cooperate in the listing and sale, and an order for a writ of possession and leave to seek an order for sanctions in contempt if she does not. The Moving Party has not established that there is a basis for these orders, on the current record. Instead, this record disclosed three parties of common interest in maximizing their financial return on the Property.
[35] I accept, however, that orders regarding the sale process for the Property will assist the parties in advancing the listing, marketing and sale of the Property. After hearing submissions on collateral relief required for efficiency in the sale process, I determined as follows:
(a) The Moving Party and Responding Parties agreed that, if ordered, the Property could be listed for sale within twenty (20) days. I will order that the Property be listed for sale within thirty (30) days, to allow additional time for the process for selection of a real estate agent/brokerage licensed in the Province of Ontario (the “Licensed Real Estate Agent").
(b) The Responding Parties sought reasonable participation in the process for selection of the Licensed Real Estate Agent and a real estate lawyer. The Moving Party sought assurance that any such participation would not result in Ms. Kassab and Mr. Kassab simply out-voting Ms. Abrahem in the selection of these professionals. I will order a process whereby each of these parties may nominate two professionals in each discipline, each of these parties may reject one such nominated professional (provided that in no event shall both nominees by a single party be disqualified) and these parties shall then use their best efforts to reach an agreement among the remaining nominees.
(c) The sale process necessarily requires that the parties use their best efforts to reach agreement on the listing price of the property and the monetary range within which they are prepared to accept an offer to purchase the Property. All parties have a common interest in maximizing their economic return on the Property. I order that Ms. Abrahem, Ms. Kassab and Mr. Kassab shall use their best efforts to agree to a listing price for the sale of the Property, with the advice provided by the Licensed Real Estate Agent, and a monetary range within which they will agree to accept any offer received to sell the Property.
(d) The parties will save considerable legal expense through cooperation in the sale process. However, in the event of disagreement, the parties concurred that a case conference would be an efficient process by which to attempt to resolve any disputes, in accordance with Rule 50.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I thereby order that in the event that Ms. Abrahem, Ms. Kassab and Mr. Kassab are unable to reach an agreement on the selection and retainer of professional advisers, the listing price of the Property or the range of monetary values within which they will agree to accept any offer received to sell the Property, they shall request the urgent scheduling of a Case Conference, and shall be prepared to make submissions on a process for the resolution of any dispute identified.
[36] I shall act as case conference judge, provided availability within the time period required by the sale process. The parties may also address at case conference the timetable that they require to move this action efficiently to trial.
IV. DISPOSITION
[37] On the basis of these reasons, I order as follows:
(a) The property municipally known as 47 Mallard Marsh Crescent, in the City of Richmond Hill, in the Province of Ontario, legally described in PIN 03206-2491 (LT) as LOT 23, PLAN 65M3664, RICHMOND HILL, SIT RT FOR 2 YRS FROM 2004/05/14 OR UNTIL EXPIRATION OF GUARANTEE PERIOD FOR SERVICES WHICHEVER IS LATER AS IN YR468223 (the "Property"), shall be partitioned and sold;
(b) The sale of the Property shall be by private contract, by listing the Property, within the next thirty (30) days, with a real estate agent/brokerage licensed in the Province of Ontario (the “Licensed Real Estate Agent").
(c) The Licensed Real Estate Agent shall be selected as follows:
i. Each of the parties with an interest in the Property, Ms. Kassab, Mr. Kassab and Ms. Abrahem (the “Vendor Parties”) shall nominate two Licensed Real Estate Agents, unrelated to and unassociated with any party, resulting in a list of six nominees.
ii. Each of the Vendor Parties may challenge and thereby reject one of the nominees, provided that in no circumstance may the parties reject both Licensed Real Estate Agents nominated by a single Vendor Party.
iii. The Vendor Parties shall use their best efforts to reach an agreement on a Licensed Real Estate Agent from those remaining nominees.
iv. If the Vendor Parties are unable to reach an agreement, they shall request the urgent scheduling of a Case Conference, in accordance with Rule 50.13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
(d) The Vendor Parties shall use the process set out in section (c) immediately above, in the retainer of a real estate lawyer to act in this sale transaction, including its closing, with necessary modifications to apply to a licensed Ontario lawyer practicing in the area of residential real estate.
(e) The Vendor Parties shall use their best efforts to agree on a listing price for the sale of the Property, with the advice provided by the Licensed Real Estate Agent, and a monetary range within which they will agree to accept any offer received to sell the Property. If the Vendor Parties are unable to reach an agreement on both these issues, they shall request the urgent scheduling of a Case Conference, and shall be prepared to make submissions on a process for the resolution of any dispute on the listing price of the Property and a reasonable range of offers that will be accepted.
(f) The net sale proceeds realized on the sale of the Property, after deduction for discharge of any encumbrances registered on title to the Property, including the mortgage held by the Bank of Montreal, real estate commissions, legal fees and usual closing adjustments, shall be accounted for by the real estate lawyer acting in the sale of the Property, reported to all the Vendor Parties, and paid by that lawyer to the Accountant of this Court, to be held pending determination of this action, subject to further Order of this Court.
[38] I will act as case conference judge, if available within the time period required by the sale process, for the purpose of the conduct of any case conferences required under Rule 50.13. The parties may also speak to the timetable that they require to move this action efficiently to trial. The parties may, jointly, arrange any required case conference by email to the Toronto Chambers Appointment coordinator, with copy to my judicial assistant.
V. COSTS
[39] If the parties are unable to agree on the issue of costs, they may deliver written submissions on costs (Rule 57.01(7)) of no more than 5 pages with authorities hyperlinked, together with a Cost Outline (Rule 57.01(6)), according to the following schedule: (i) any party seeking an Order for costs shall deliver their costs submissions by June 11, 2021; (ii) any party responding to a claim for costs shall deliver their costs submissions, also of no more than 5 pages with authorities hyperlinked, by June 25, 2021; (iii) any party seeking an Order for costs may deliver a Reply submission, if any, of no more than 2 pages with authorities hyperlinked, by July 2, 2021.
[40] If no party delivers any written submissions on costs by July 2, 2021, I will deem the issue of costs to have been settled.
A.A. Sanfilippo J.
Date: May 26, 2021