COURT FILE NO.: CV-20-3970
DATE: 2021 07 16
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Anne Raghurai also known as Radica Raghurai, Plaintiff
AND
Anthony Chung and Stacy Persaud, Defendants
BEFORE: Bloom, J.
COUNSEL: Eric Brousseau and Gordon Vance, for the Defendants, the Moving Parties
Wei Chiang, for the Plaintiff, the Responding Party
HEARD: 2021/06/28
E N D O R S E M E N T
I. INTRODUCTION
[1] The Defendants move for summary judgment. They seek an order dismissing the action.
[2] The Plaintiff has commenced an action for a declaration that she and the Defendants are parties to a joint venture in respect of real estate at 10 Deforest Drive, Brampton, Ontario; and that, she is entitled to a 50% equitable interest in the property.
[3] The Defendants contend that the action ought to be dismissed, since there is no genuine issue requiring a trial respecting the claim of the joint venture.
[4] The central issue is the credibility of the parties.
II. THE UNDISPUTED FACTS
[5] The Defendants are spouses. They bought the property in question in 2011 as an investment.
[6] The Plaintiff lent the Defendants $70,000 in five separate segments between June and November of 2013. There is a promissory note in favour of the Plaintiff from the Defendants regarding each segment.
[7] There is also a $75,000 second mortgage from the Defendants on the property in favour of the Plaintiff which was registered in November of 2013. The balance on the first mortgage was approximately $348,000.
III. GOVERNING PRINCIPLES
[8] In Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98 at paras. 23 to 27 Justice Roberts for the Court set out the principles governing motions for summary judgment:
(1) The Framework for Summary Judgment
[23] At the heart of this appeal is the motion judge’s approach to summary judgment and, specifically, her treatment of the evidence and record before her. Absent an error of law, a misdirection, or the creation of an injustice through a decision that is clearly wrong, a motion judge’s determination of these questions is generally entitled to considerable deference on appeal: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 81-84. However, here, appellate intervention is required, as the motion judge fell into error and misdirected herself because she failed to determine whether summary judgment was appropriate, having regard to the entire evidentiary record and the Hryniak analytical framework.
[24] This determination required the motion judge to follow the analytical approach set out in Hryniak, at para. 66, which is summarized as follows:
First, the motion judge should have determined if there was a genuine issue requiring a trial based only on the evidence before her, without using the enhanced fact-finding powers under r. 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Second, if there appeared to be a genuine issue requiring a trial, the motion judge should have determined if the need for a trial could be avoided by using the enhanced powers under r. 20.04(2.1) – which allowed her to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence – and under r. 20.04(2.2) to order that oral evidence be presented by one or more parties.
[25] While summary judgment is an important tool for enhancing access to justice and achieving proportionate, timely, and cost-effective adjudication, there is no imperative on the court to use it in every case: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 49; Lesenko v. Guerette, 2017 ONCA 522, 416 D.L.R. (4th) 349, at para. 30. As affirmed by the Supreme Court in Hryniak, at para. 28, the overarching goal remains to have “a fair process that results in a just adjudication of disputes.”
[26] Indeed, notwithstanding the parties’ agreement that the action and counterclaims could be determined by summary judgment, it is still incumbent on the motion judge to decide whether it is appropriate to grant summary judgment: Rules of Civil Procedure,r. 20.04(2)(b).
[27] In determining whether summary judgment is appropriate, motion judges are required to engage with the Hryniak analytical framework process, as described above, look at the evidentiary record, determine whether there is a genuine issue requiring a trial, and assess, in their discretion, whether resort should be taken to the enhanced powers under rr. 20.04(2.1) and (2.2) of the Rules of Civil Procedure. To do otherwise runs the risk that, in an effort to dispose of a case in a summary fashion, motion judges will not properly analyze the evidence: Trotter, at para. 49. Unfortunately, that is what occurred here.
[9] The case before me is clearly centred on the credibility of the parties. In considering this matter I am, therefore, assisted by the discussion of the availability of summary judgment motions in such cases at paragraphs 6.240 and 6.241 of Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario 4th edition (Toronto: LexisNexis Canada Inc. 2020). I find particularly apposite the following passage:
Of the full appreciation test, the Court of Appeal stated:
We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process.
IV. ARGUMENTS OF THE PARTIES
A. Argument of the Moving Parties
[10] The Defendants argue that there was in law no joint venture agreement between themselves and the Plaintiff, although they admit that she subjectively believed that there was. Accordingly, they submit that there is no genuine issue requiring a trial; and that, therefore, their motion ought to be granted dismissing the action. They submit that I should use all of my powers under Rule 20.04, if necessary, to address their motion. Alternatively, the Defendants seek some unspecified sort of summary trial.
B. Argument of the Responding Party
[11] The Plaintiff contends that a trial is necessary to address justly her claim based on the existence of a joint venture in relation to the property. Even though there is no signed joint venture agreement, she relies on evidence of an oral agreement and part performance of it.
V. ANALYSIS
[12] The case before me requires a trial where witnesses can be examined and cross-examined in the context of the documentary evidence. Only by this means can justice be done. I will now explicate that conclusion by reference to the evidence. I note that at my request the parties provided to me for my consideration in writing this endorsement portions of the record upon which they had relied, but which had not been filed in the court record provided to me.
[13] The Plaintiff in her evidence states that the Defendants in early 2013 offered to sell her a 50% interest in the property. Further, she states that as a part of a joint venture agreement with the Defendants she agreed to pay $31,000 for the interest, reflecting the value of one half of their equity in the property, and to make a loan to them of another $39,000. Additionally, on July 31, 2013 the Defendants met with her and her brother to discuss the terms of the joint venture agreement. Under the terms of that agreement the Defendants would hold legal title to the property, but would hold a 50% interest in trust for her. Moreover, on sale of the property, she would be paid out her loan and equity interest. She would also be advised of all leasing matters in relation to the property, and a separate bank account would be established on which the parties would have signing authority; rental income would be deposited into the account and expenses paid from it. Finally, the Plaintiff gave evidence that the parties agreed to the promissory notes and the mortgage; the mortgage was to cover an extra sum beyond the $31,000 and $39,000, for the costs of its registration and ultimate discharge.
[14] The Plaintiff gave evidence that she agreed with Persaud that she, the Plaintiff, would herself draft the formal joint venture document to save on legal costs, but that she never finished drafting the document.
[15] In fact there is in evidence an exchange of written communications between the Plaintiff and Persaud in November of 2013 about the signing of a joint venture agreement. There is also evidence of a bank account in the name of Persaud and the Plaintiff in relation to this matter.
[16] In oral argument counsel for the Defendants admitted that the Plaintiff believed that there was in fact a joint venture agreement between herself and the Defendants, but he rejected its existence as a conclusion of law on the evidence.
[17] The Defendants rely upon evidence that any communication between them and the Plaintiff about a joint venture agreement was understood by them to refer to their agreement that the Plaintiff would be paid out by them any money she was owed in respect of the property matter in July of 2016 when the first mortgage was to be refinanced.
[18] The Defendants also rely upon evidence that the legal relationship between themselves and the Plaintiff was simply as borrowers under the promissory notes and the mortgage for $75,000 which superseded the notes; and that the bank account served simply to facilitate the loan.
[19] It is clear that a trial with cross-examination of witnesses will be necessary to determine credibility, make findings of fact, and then apply the governing legal principles. There is conflicting evidence as to whether or not there was a joint venture agreement between the Plaintiff and Defendants which requires a trial. In addition to the evidence to which I have referred, there is other evidence of acts which both sides explain on the basis of their own positions as to what the legal nature of their relationship was.
[20] For these reasons I dismiss the motion at bar.
VI. COSTS
[21] I shall receive written submissions as to costs of no more than 3 pages, excluding a bill of costs. The Plaintiff shall serve and file her submissions within 14 days of release of this endorsement. The Defendants shall serve and file their submissions within 14 days of service of the Plaintiff’s submissions. There shall be no reply.
Bloom, J.
DATE: July 16, 2021
COURT FILE NO.: CV-20-3970
DATE: 2021/07/16
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Anne Raghurai also known as Radica Raghurai, Plaintiff
AND
Anthony Chung and Stacy Persaud, Defendants
BEFORE: Bloom, J.
COUNSEL: Eric Brousseau and Gordon Vance, for the Defendants, the Moving Parties
Wei Chiang, for the Plaintiff, the Responding Party
ENDORSEMENT
Bloom, J.
DATE: July 16, 2021