COURT FILE NO.: CV-20-00649457-0000
DATE: 20211101
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1861067 ONTARIO INC.
Plaintiff
- and -
HUI YUI SANG a.k.a. YUI SANG HUI a.k.a. ANDREW HUI YUI SANG a.k.a. ANDREW YUI SANG HUI and CHEUNG FUNG CHUN a.k.a. FUNG CHUN CHEUNG a.k.a. CHRILY CHEUNG FUNG CHUN a.k.a. CHRILY FUNG CHUN CHEUNG
Defendants
AND BETWEEN:
HUI YUI SANG a.k.a. YUI SANG HUI a.k.a. ANDREW HUI YUI SANG a.k.a. ANDREW YUI SANG HUI and CHEUNG FUNG CHUN a.k.a. FUNG CHUN CHEUNG a.k.a. CHRILY CHEUNG FUNG CHUN a.k.a. CHRILY FUNG CHUN CHEUNG
Plaintiffs by Counterclaim
- and –
1861067 ONTARIO INC. and JOHN APIOU
Defendants by Counterclaim
James S. Schacter and Neil Searles for the Plaintiff/Defendants by Counterclaim
Audrey Warner for the Defendants/Plaintiffs by Counterclaim
HEARD: October 21, 2021
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] Pursuant to an Endorsement and an Order dated October 28, 2020, Associate Justice Sugunasiri granted leave to 1861067 Ontario Inc. (“Mr. Apiou’s Corporation”)to register a Certificate of Pending Litigation against a property municipally known as 8 Highpoint Road, Toronto, Ontario, which was owned by the defendant Andrew Sang.[^1] On October 29, 2020, the Certificate of Pending Litigation was registered against the title of the property.[^2] On December 9, 2020, Mr. Sang transferred 8 Highpoint Road to 2780812 Ontario Inc., an arm’s-length purchaser, for $13.5 million in cash.[^3] On June 28, 2021, Mr. Sang and his wife, the defendant Chrily Cheung,[^4] brought a motion to vacate the Certificate of Pending Litigation. For the reasons that follow, I dismiss the motion.
B. Evidentiary and Procedural Background
[2] On October 15, 2020, pursuant to a Statement of Claim, Mr. Apiou’s Corporation commenced an action against Mr. Sang and Ms. Cheung.
[3] In the Statement of Claim, Mr. Apiou’s Corporation claimed damages of $2.5 million for breach of contract and unjust enrichment with respect to a construction management project to build a residence at 8 Highpoint Road, which is in the ultra-posh Bridle Path area in Toronto, Ontario.
[4] Mr. Apiou’s Corporation also sought a declaration for an accounting, restitution, disgorgement, and a constructive trust for unjust enrichment.
[5] Further, Mr. Apiou’s Corporation sought the registration of a Certificate of Pending Litigation.
[6] The 8 Highpoint Road property was owned by Mr. Sang, and on October 28, 2020, after a motion without notice, Associate Justice Sugunasiri granted leave to Mr. Apiou’s Corporation to register a Certificate of Pending Litigation against the property. The certificate was registered against the title of the property on October 29, 2020.
[7] On December 23, 2020, Mr. Sang and Ms. Cheung delivered their Statement of Defence and Counterclaim. They joined John Apiou, the principal of Mr. Apiou’s Corporation, as a Defendant by Counterclaim. In their pleading, Mr. Sang and Ms. Cheung claim damages of approximately $3.0 million for breach of contract, negligence in the performance of a Project Management Agreement with respect to the construction of a luxury home, a mansion, at 8 Highpoint Road.
[8] On February 11, 2021, Mr. Apiou’s Corporation and Mr. Apiou delivered a Reply and a Defence to the Counterclaim.
[9] On June 28, 2021, Mr. Sang and Ms. Cheung brought a motion to vacate the Certificate of Pending Litigation. The motion was supported by an affidavit of Mr. Sang dated June 28, 2021.
[10] On July 29, 2021, Mr. Apiou delivered an affidavit dated July 29, 2021 in response to the motion to vacate the Certificate of Pending Litigation.
[11] On August 16, 2021, Mr. Sang delivered a reply affidavit dated August 16, 2021.
[12] On October 5, 2021, Mr. Apiou’s Corporation and Mr. Apiou delivered an affidavit of Andrea Geddes, who is a law clerk at Zuber & Company LLP, their lawyer of record.
[13] There were no cross-examinations on the affidavits delivered by the opposing parties.
[14] The motion was argued on October 21, 2021.
C. Facts
[15] The Defendant Mr. Sang is a businessman who spent most of his time in his native Hong Kong, where he now resides.
[16] In the 1990s, Mr. Sang’s wife, the Defendant Ms. Cheung, and their children immigrated to Canada. Mr. Sang continued to work and live in Hong Kong, but he would visit Canada for extended visits.
[17] To foreshadow recent events, Mr. Sang and Ms. Cheung no longer live in Canada and now reside in Hong Kong.
[18] In 1996, Mr. Sang and Ms. Cheung met John Apiou. He was a salesman at a luxury car dealership. Over the years, Mr. Sang and Ms. Cheung purchased and leased vehicles from the dealership where Mr. Apiou was employed.
[19] Mr. Sang, Ms. Cheung and Mr. Apiou became close family friends. Although Mr. Sang lived in Hong Kong, when he visited Canada to see his family, the friends would socialize. The families would have dinners together. The families travelled together. They exchanged gifts. The parents discussed parenting issues.
[20] In 2005, Mr. Sang and Ms. Cheung purchased a residential property at 8 Highpoint Road in Toronto for $5.2 million. The property is in the Bridle Path area of Toronto.
[21] In 2011, Mr. Sang and Ms. Cheung decided that they would demolish the home at 8 Highpoint Road and rebuild the property into a huge mansion. Mr. Apiou recommended that Mr. Sang and Ms. Cheung hire Bruno Nicolini, as the project manager. The Defendants did hire Mr. Nicolini, with whom they signed a Project Management Agreement.
[22] Unfortunately, Mr. Nicolini passed away after signing the agreement.
[23] With Mr. Nicolini’s passing, the parties discussed Mr. Apiou becoming the project manager to replace Mr. Nicolini, and as a result of those discussions Mr. Apiou incorporated 1861067 Ontario Inc., for the purpose of providing residential construction project management services to Mr. Sang and Ms. Cheung.
[24] On November 22, 2011, Mr. Apiou’s Corporation, as the “Project Manager”, and Mr. Sang and Ms. Cheung as the “Owner”, entered into a Project Management Agreement, to govern the project to demolish the existing house and build the mansion. The Project Management Agreement was simply copied from the agreement prepared by Mr. Nicolini. The negotiations were friendly and informal, and Mr. Apiou did not have legal assistance in drafting the agreement.
[25] Mr. Sang deposed that he and Ms. Cheung entered into the Project Management Agreement because of Mr. Apiou’s representations that: (a) he and his corporation had the required expertise, skill, training, knowledge, experience and forces of a project manager in the construction industry; (b) his corporation would competitively source the best prices for materials supplied for the project; and, (c) he would charge a project management fee equal to 20% of the total cost of construction of the Project.
[26] The Project Management Agreement, as it was written, required Mr. Apiou’s Corporation to retain Mr. Apiou to act as an independent contractor acting as agent for Mr. Sang and Ms. Cheung to supervise the planning and construction of the project to build a new residence at 8 Highpoint Road.
[27] Under the Project Management Agreement, as it was written, in conformity with instructions being received from the Owners, the Project Manager would instruct the contractors, sub-contractors, and consultants. Under the Agreement, it was the Project Manager’s obligation to review and negotiate contracts with the trades (contractors, sub-contractors and consultants) and make recommendations to the Owner with respect to the selection of the trades. It was the Project Manager’s responsibility upon receipt of payment demands from the trades to requisition funds for payment of the project expenses.
[28] Under the Project Management Agreement, for its services, the Project Manager was to receive a fee of 20% of the total cost of construction. As construction continued, the Project Manager was to submit invoices on a bi-monthly basis, which were to be paid in full in fifteen days.
[29] Pausing here to foreshadow, and as I shall describe in more detail below, the Project Management Agreement lasted from November 22, 2011 until December 2018, when Mr. Sang and Ms. Cheung notified Mr. Apiou’s Corporation that it was in default under the Agreement. In a lawyer-written letter, they advised Mr. Apiou that they would retain others to complete the project and that they would hold Mr. Apiou’s Corporation responsible for all costs incurred. On December 3, 2018, Mr. Sang and Ms. Cheung terminated the Agreement.
[30] It is a protracted and contentious story, which for present purposes need not to be detailed, but from 2011 until the termination of the Agreement for much of the time neither Mr. Apiou nor Mr. Sang and Ms. Cheung performed the Project Management Agreement as it was written.
[31] Sometimes, the contracting parties did perform some aspects of the Agreement in accordance with its terms, but sometimes, the parties did not stay on script. As noted above, as written, the Project Management Agreement envisioned that the Owners (Mr. Sang and Ms. Cheung) would be responsible for paying the trades after receiving a requisition for payment from the Project Manager (Mr. Apiou’s Corporation). The Project Management Agreement did not envision that the Project Manager would pay the trades itself; however, from time to time, when Mr. Apiou did not receive sufficient funds from the Defendants, Mr. Apiou or Mr. Apiou’s Corporation would pay the trades out of their own pocket.
[32] I emphasize for reasons that will become apparent later that Mr. Apiou was the alter ego of his corporation and thus the payments to the trades came out of his pocket which was the same financial pocket as his corporation, which was his shell corporation.
[33] Mr. Apiou deposed that he was financing the project out of friendship and because he received assurances and inducements from Mr. Sang and Ms. Cheung that he would be repaid. Mr. Apiou deposed that Ms. Cheung confided in him that she had a gambling addiction and that she had gambled away funds sent to her from Hong Kong by Mr. Sang, who did not know about her gambling debts.
[34] Ms. Cheung was the conduit for payments for the project to build the luxury home, and Mr. Apiou attributes the problems in paying the trades to Ms. Cheung’s gambling addiction, which he says saw her lose over a million dollars of funds that had been sent from Hong Kong by Mr. Sang. Mr. Apiou deposed that Ms. Cheung told him that she would eventually get additional funds to satisfy the arrears on the construction project. He says she implored him not to raise the matter with Mr. Sang.
[35] Meanwhile, Mr. Apiou never submitted invoices for the project management fee.
[36] Mr. Apiou’s version of the Project Management Agreement’s history is that the initial cost of construction was estimated to be $4.5 million inclusive of the management fee. He deposes that by May 2016, the construction project had cost $5,950,000 and Mr. Apiou’s Corporation was owed $510,000 for payments that ought to have been made by Mr. Sang and Ms. Cheung but which he or his corporation had made on the Owners’ behalf to keep the project from stalling. The project management fee was also outstanding, but it has not ever been invoiced.
[37] Mr. Apiou deposes that in March 2017, he and the General Contractor wrote to Mr. Sang and Ms. Cheung to advise that $895,000 of payments plus HST was outstanding. Mr. Apiou deposed that he was promised that Mr. Sang and Ms. Cheung would pay this sum by end of August 2017, but he says that this promise was not kept.
[38] Mr. Apiou deposes that Mr. Sang and Ms. Cheung made their last payments totaling $400,000 in June 2018.
[39] Ms. Cheung did not deliver an affidavit to contradict Mr. Apiou’s story, but Mr. Sang tells a different story of the history of the project to build a mansion at 8 Highpoint Road.
[40] In the Counterclaim and in his affidavit, Mr. Sang blames Mr. Apiou for the project going off the rails. The Defendants and Plaintiffs by Counterclaim allege that Mr. Apiou’s Corporation breached the Project Management Agreement and was negligent in its performance. Mr. Sang and Ms. Cheung allege that Mr. Apiou’s Corporation did not complete the work and the work that was completed was done deficiently. In their Counterclaim, they claim damages of approximately $3.0 million.
[41] There is no dispute that in December 2018, after delivering a letter of deficiencies and complaints, Mr. Sang and Ms. Cheung terminated the Project Management Agreement and locked Mr. Apiou’s Corporation and also the general contractor out of the construction site.
[42] Mr. Apiou deposed that by December 2018, Mr. Sang and Ms. Cheung had paid $6,225,000 of the $7,352,348.72 of construction costs. He deposed that he and Mr. Apiou’s Corporation was owed $1,127,348.72 at the time that it was locked out. He says that he and his corporation had directly financed this sum for the project. He said that the project management fee has not been paid.
[43] After Mr. Apiou’s Corporation was locked out of the construction site, Mr. Sang and Ms. Cheung hired others to go forward with the project. On October 15, 2020, a few months before the claim in the immediate action would presumptively have been statute-barred, Mr. Apiou’s Corporation sued for damages for breach of contract and unjust enrichment.
[44] As noted above, on October 29, 2020, Mr. Apiou’s Corporation registered a Certificate of Pending Litigation against 8 Highpoint Road.[^5]
[45] On December 9, 2020, Mr. Sang transferred 8 Highpoint Road to 2780812 Ontario Inc.[^6] The transfer, but not the Agreement of Purchase and Sale, is in the motion record. The transfer indicates that the consideration for the transaction was $13.5 million in cash.
[46] On December 12, 2020, the purchaser, 2780812 Ontario Inc., granted a $5.5 million charge on 8 Highpoint Road.[^7] The charge is described as a Vendor Take Back mortgage. The charge was on demand with an interest rate of 0.0%. The Additional Provisions of the Charge stated:
This is a Vendor-Take Back mortgage in the principal amount of Five Million and Five Hundred Thousand Canadian Dollars […] given by the Purchaser/mortgagor to the Vendor/Mortgagee.
(1) The principal amount of Cad$5,500,000 shall be paid in full to the mortgagee upon 30 days of written notice that the Certificate of Action (AT5207774) and Certificate of Pending Litigation (AT5557772) have been vacated from the subject property.
(2) In the event that the above-noted Certificate of Action and Certificate of Pending Litigation are not vacated from title on or before March 8, 2021 (the mortgagor shall pay Cad$2,500,000 to the mortgagee without notice immediately on March 8, 2021. The remaining balance of the principal amount of Cad$3,000,000 shall be paid to the mortgagee upon 30 days of written notice that the above-noted Certificate of Action and Certificate of Pending Litigation have been vacated from title to the subject property.
(3) The Vendor/mortgagee agrees, in his best effort, to vacate the Certificate of Action and Certificate of Pending Litigation within one year of closing. If said Certificates are not vacated by December 8, 2021, the remaining principal amount of $Cad$3,000,000 shall be held by the mortgagor as security deposit until said two certificates are vacated from title.
(4) The interest rate of the VTB mortgage is agreed by the parties to be 0.00%.
D. Mr. Sang’s and Ms. Cheung’s Arguments
[47] Mr. Sang and Ms. Cheung submit that the Certificate of Pending Litigation should be vacated on the following grounds.
[48] Mr. Sang and Ms. Cheung submit that Mr. Apiou’s Corporation does not have a reasonable claim to an interest in the Lands and accordingly is not entitled to a Certificate of Pending Litigation. Mr. Sang and Ms. Cheung concede that Mr. Apiou, himself, might have a claim for a constructive trust but he is not a party to the main action. Thus, they submit that Mr. Apiou’s Corporation has no reasonable claim for a constructive trust.
[49] Mr. Sang and Ms. Cheung submit that since Mr. Sang no longer owns the premises which are the subject matter of the Certificate of Pending Litigation, there should be no certificate registered against the interest of the purchaser 2780812 Ontario Inc.
[50] Mr. Sang and Ms. Cheung submit that there should be no Certificate of Pending Litigation because 8 Highpoint Road is not a unique property.
[51] Mr. Sang and Ms. Cheung submit that Mr. Apiou’s Corporation’s Statement of Claim contains a claim for damages and a Certificate of Pending Litigation is to protect a claim to an interest in land, not to protect a claim for damages.[^8] They submit that damages would be an adequate remedy and these damages could be sought against Mr. Sang and Ms. Cheung. The damages claimed by Mr. Apiou’s Corporation can be relatively easily calculated and determined and, therefore, there should be no Certificate of Pending Litigation. They submit that Mr. Apiou’s Corporation’s claims can be adequately protected other than by way of Certificate of Pending Litigation.
E. Discussion and Analysis
[52] The relevant statutory provisions about certificates of pending litigation are s. 103 of the Courts of Justice Act,[^9] and rules 42.01 and 42.02 of the Rules of Civil Procedure,[^10] which are set out below:
Certificate of pending litigation
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 office under subsection (2).
Registration
(2) Where a certificate of pending litigation is issued under subsection (1) it may be registered whether the land is registered under the Land Titles Act or the Registry Act.
Order discharging certificate
(6) The court may make an order discharging a certificate,
(a) where the party at whose instance it was issued,
(i) claims a sum of money in place of or as an alternative to the interest in the land claimed,
(ii) does not have a reasonable claim to the interest in the land claimed, or
(iii) does not prosecute the proceeding with reasonable diligence;
(b) where the interests of the party at whose instance it was issued can be adequately protected by another form of security; or
(c) on any other ground that is considered just,
and the court may, in making the order, impose such terms as to the giving of security or otherwise as the court considers just.
Issuing of Certificate
Court Order Required
42.01 (1) A certificate of pending litigation (Form 42A) under section 103 of the Courts of Justice Act may be issued by a registrar only under an order of the court.
Claim for Certificate to be in Originating Process
(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.
Motion Without Notice
(3) A motion for an order under subrule (1) may be made without notice.
Order to be Served Forthwith
(4) A party who obtains an order under subrule (1) shall forthwith serve it, together with a copy of the notice of motion and all affidavits and other documents used at the hearing of the motion, on all parties against whom an interest in land is claimed in the proceeding.
Discharge of Certificate
42.02 (1) An order discharging a certificate of pending litigation under subsection 103 (6) of the Courts of Justice Act may be obtained on motion to the court.
[53] For the plaintiff to obtain a Certificate of Pending Litigation, the proceeding must be one in which an interest in land is in question. If the proceeding does not involve an interest in land, then the plaintiff is not entitled to a Certificate of Pending Litigation.[^11]
[54] The onus is on the party opposing or seeking the discharge of a certificate of pending litigation to show that there is no triable issue about whether the party seeking the certificate has a reasonable claim to an interest in land.[^12] On a motion to discharge the certificate, the court should examine the evidence and, without deciding disputed issues of fact and credibility, determine whether the plaintiff’s case makes a reasonable claim to an interest in land.[^13]
[55] In the immediate case, Mr. Apiou’s Corporation pleads a constructive trust as the basis of a proprietary interest in 8 Highpoint Road. A constructive trust as a remedy for unjust enrichment has been held to be an interest in land capable of being protected by a certificate of pending litigation.[^14] It follows that Mr. Sang and Ms. Cheung’s first argument for discharging the certificate of pending litigation fails.
[56] Mr. Apiou’s Corporation has a genuinely arguable claim for a constructive trust in the circumstances of the immediate case. Mr. Apiou’s Corporation, which is the alter ego of Mr. Apiou, paid money or had money paid that it and its alter ego were not obliged to pay. These payments enriched Mr. Sang and Ms. Cheung and there is no juristic reason for the enrichment. The unjust enrichment claim was made within the limitation period and there is no basis to support laches.
[57] I turn to the Defendants’ arguments for vacating the Certificate of Pending Litigation. The court has a broad discretion to discharge a certificate of pending litigation.[^15] The onus is on the party seeking to discharge the certificate to persuade the court that its discretion ought to be exercised in favour of the discharge.[^16] The court may discharge a certificate of pending litigation on a variety of grounds, including the general ground of it being just to discharge the certificate.[^17] A certificate may be discharged whether or not there is a triable issue relating to the plaintiff’s claim to an interest in land.[^18]
[58] In 572383 Ontario Inc. v. Dhunna,[^19] the court provided a non-exhaustive list of factors to consider in determining whether it would be just to discharge a certificate of pending litigation; namely: (1) whether the plaintiff is, or is not, a shell corporation; (2) whether the land is, or is not, unique; (3) the intent of the parties in acquiring the land; (4) whether there is an alternative claim for damages; (5) the ease or difficulty of calculating damages; (6) whether damages would be a satisfactory remedy; (7) the presence or absence of another willing purchaser; and (8) the harm done to the defendant if the certificate is allowed to remain, or to the plaintiff if the certificate is removed, with or without the requirements of alternative security.[^20]
[59] The factors are not a code, and whether a certificate of pending litigation should be vacated is an exercise of the court’s discretion having regard to the factors that are relevant in the circumstances of the particular case.[^21] The onus is on the party seeking to discharge the certificate of pending litigation to persuade the court to exercise its discretion in favour of discharging the certificate.[^22]
[60] Considering Mr. Sang’s and Ms. Cheung’s arguments for why the court should exercise its discretion to vacate the Certificate of Pending Litigation, in my opinion, taken separately or taken together these arguments are not convincing, and it would be none of reasonable, fair, or just to vacate the Certificate of Pending Litigation in the immediate case.
[61] Mr. Sang and Ms. Cheung’s reliance on the circumstance that the Defendants have sold the luxury mansion on 8 Highpoint Road to 2780812 Ontario Inc. is not convincing.
[62] A court may vacate a certificate of pending litigation to protect a bona fide purchaser for value without notice of the plaintiff’s claim to land. Indeed, the certificate of pending litigation was invented to give notice to a potential purchaser that there is an outstanding claim to the land so that the purchaser could protect its own claim pending the determination of the alleged interest on its merits.[^23] In the immediate case, however, 2780812 Ontario Inc. purchased the property after the certificate was already registered and it has protected itself by the so-called Vendor Take Back mortgage that was registered against the property.
[63] A purchaser with notice is obviously not a bona fide purchaser without notice and the circumstances in the immediate case rather support maintaining the certificate of pending litigation rather than removing it. The circumstances of the immediate case rather resemble the circumstances for which a Mareva injunction would be granted. It seems that the Defendants have depleted their main and perhaps only asset in Canada and returned to Hong Kong.
[64] The disputed matter of whether or not 8 Highpoint Road is a unique property is an irrelevant factor in the immediate case.
[65] The uniqueness of a property is relevant in circumstances when the plaintiff is suing for specific performance of an agreement of purchase and sale and the purchaser seeks to protect that claim for specific performance by registering a certificate of pending litigation. In Semelhago v. Paramadevan,[^24] the Supreme Court of Canada held that a purchaser seeking specific performance after a breach of contract of sale must justify why a court of equity should intervene and order a conveyance of the property. In the immediate case, Mr. Apiou’s Corporation is not seeking specific performance; it is seeking a constructive trust. The uniqueness of the property is a non sequitur in the circumstances of the immediate case.
[66] What might be a relevant factor in the immediate case is whether Mr. Apiou’s Corporation should be left to a monetary remedy for unjust enrichment instead of the proprietary remedy of a constructive trust. However, in the circumstances of the immediate case, in my opinion, Mr. Apiou’s Corporation’s constructive trust remedy should be protected by a certificate of pending litigation.
[67] Strictly speaking, save for the claim for unpaid project manager fees, Mr. Apiou’s Corporation is not seeking damages for breach of contract. It is rather seeking a restitutionary remedy to get back its own money and Mr. Apiou’s own money that was paid for the benefit of Mr. Sang and Ms. Cheung. There is no evidence that Mr. Sang and Ms. Cheung, who now reside in Hong Kong have any assets in Canada and the so-called Vendor Take Back mortgage seems more of a holdback of purchase monies than a genuine security that might be a assignable security. A monetary remedy for unjust enrichment seems illusory, and Mr. Apiou’s Corporation has shown a legitimate reason for seeking and obtaining a proprietary remedy in the circumstances of the immediate case.
[68] In the circumstances of the immediate case, Mr. Apiou’s Corporation has a reasonable claim to a proprietary interest in 8 Highpoint Road and there is no bona fide purchaser without notice for whom the court’s equitable jurisdiction would show deference. A remedy in damages is illusory and in the circumstances of the immediate case, I would not exercise the court’s discretion to vacate the Certification of Pending Litigation.
F. Conclusion
[69] For the above reasons, I dismiss Mr. Sang and Ms. Cheung’s motion.
[70] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Plaintiff’s submissions within twenty days of the release of these Reasons for Decision followed by the Defendants’ submissions within a further twenty days.
Perell, J.
Released: November 1, 2021
COURT FILE NO.: CV-20-00649457-0000
DATE: 20211101
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1861067 ONTARIO INC.
Plaintiff
- and -
HUI YUI SANG a.k.a. YUI SANG HUI a.k.a. ANDREW HUI YUI SANG a.k.a. ANDREW YUI SANG HUI and CHEUNG FUNG CHUN a.k.a. FUNG CHUN CHEUNG a.k.a. CHRILY CHEUNG FUNG CHUN a.k.a. CHRILY FUNG CHUN CHEUNG
Defendants
AND BETWEEN:
HUI YUI SANG a.k.a. YUI SANG HUI a.k.a. ANDREW HUI YUI SANG a.k.a. ANDREW YUI SANG HUI and CHEUNG FUNG CHUN a.k.a. FUNG CHUN CHEUNG a.k.a. CHRILY CHEUNG FUNG CHUN a.k.a. CHRILY FUNG CHUN CHEUNG
Plaintiffs by Counterclaim
- and –
1861067 ONTARIO INC. and JOHN APIOU
Defendants by Counterclaim
REASONS FOR DECISION
PERELL J.
Released: November 1, 2021
[^1]: Hui Yui Sang; a.k.a. Yui Sang Hui; a.k.a. Andrew Hui Yui Sang; a.k.a. Andrew Yui Sang Hui. [^2]: Registered as Instrument No. AT5557772, in the Land Registry Office #66. [^3]: The transfer was registered as Instrument No. AT5594213. [^4]: Cheung Fung Chun; a.k.a. Fung Chun Cheung; a.k.a. Chrily Cheung Fung Chun; a.k.a Chrily Fung Chun Cheung. [^5]: The Certificate of Pending Litigation was registered as Instrument No. AT5557772. [^6]: The transfer was registered as Instrument No. AT5594213. [^7]: The charge was registered as Instrument No. AT5594214. [^8]: Guz v. Olszowka, 2019 ONSC 5308; Bains v. Khatri, 2019 ONSC 1401. [^9]: R.S.O. 1990, c. C.43. [^10]: R.R.O. 1990, Reg. 194. [^11]: Kafouf v. Kafouf, 2017 ONSC 5093; Todd Family Trust v. Barefoot Science Technologies Inc., 2013 ONSC 523 (Div. Ct.); Memphis Holdings Ltd. v. Plastics Land Partnership, [1989] O.J. No. 705 (H.C.J.); Namasco Ltd. v. Globe Equipment Sales & Rentals (1983) Ltd., [1985] O.J. No. 459 (H.C.J.); Reid v. Carr (1924), 26 O.W.N. 204 (H.C.J.); Jenkins v. McWhinney (1912), 1912 CanLII 504 (ON SC), 5 D.L.R. 883 (Ont. Master). [^12]: Khanna v. Singh, 2020 ONSC 4800; Sun Rise Elephant Property Investment Corporation v. Luu, 2018 ONSC 5247; Kafouf v. Kafouf, 2017 ONSC 5093; Nabizadeh v. Manifar, 2015 ONSC 5503 (Master); Perruzza v. Spatone, 2010 ONSC 841 (Master); G.P.I. Greenfield Pioneer Inc. v. Moore (2002), 2002 CanLII 6832 (ON CA), 58 O.R. (3d) 87 at para. 20 (C.A.); Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 at para. 62 (Gen. Div.). [^13]: Can-China Real Capital Inc. v. Askar, 2021 ONSC 5043 (Master); Pauwa North America Development Group Co Ltd v Skyline Port McNicoll (Development) Inc. 2021 ONSC 18; Guz v. Olszowka, 2019 ONSC 5308; HarbourEdge Mortgage Investment Corp. v. Community Trust Co., 2016 ONSC 448; Carttera Management Inc. v. Palm Holdings Canada Inc., 2011 ONSC 4573; Waxman v. Waxman, [1991] O.J. No. 89 (Gen. Div.). [^14]: Avan v. Benarroch, 2017 ONSC 4729 (Master); HarbourEdge Mortgage Investment Corp. v. Timbercreek Mortgage Investment Corp. (Trustee of), (sub nom. HarbourEdge Mortgage Investment Corp. v. Community Trust Co.) 2016 ONSC 448, leave to appeal refused 2016 ONSC 2507 (Div. Ct.); First Leaside Wealth Management Inc. v. Phillips, 2012 ONSC 5443; Golden Bull Estates Ltd. v. Generex Biotechnology Corp., 2012 ONSC 4975; Roseglen Village for Seniors Inc. v. Doble, 2010 ONSC 3239 (Master), aff’d 2010 ONSC 4680; Robertson v. Fieldstone Homes Ltd., [2009] O.J. No. 5352 (Master); Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen. Div.). [^15]: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 103(6); Belajac v. Belajac, [2008] O.J. No. 1058 (S.C.J.); G.P.I. Greenfield Pioneer Inc. v. Moore (2002), 2002 CanLII 6832 (ON CA), 58 O.R. (3d) 87 (C.A.); 561895 Ontario Ltd. v. Metropolitan Trust Co. of Canada, [1994] O.J. No. 2704 (Gen. Div.); 572383 Ontario Inc. v. Dhunna, [1987] O.J. No. 1073 (Master); Sandu v. Braebury Homes Corp., [1986] O.J. No. 124 (H.C.J.); Clock Investments Ltd. v. Hardwood Estates Ltd. (1977), 1977 CanLII 1414 (ON SC), 16 O.R. (2d) 671 (Div. Ct.). [^16]: JDM Developments Inc. v. J. Stollar Construction Ltd., [2004] O.J. No. 4572 (S.C.J.); McGrath v. B.G. Schickedanz Homes Inc., [2000] O.J. No. 4161 (S.C.J.); 931473 Ontario Ltd. v. Coldwell Banker Canada Inc., [1991] O.J. No. 1150 (Gen. Div.). [^17]: Lio v. Jescan Leasing Inc., 2012 ONSC 7318 (Master); 572383 Ontario Inc. v. Dhunna, [1987] O.J. No. 1073 (Master); Clock Investments Ltd. v. Hardwood Estates Ltd. (1977), 1977 CanLII 1414 (ON SC), 16 O.R. (2d) 671 (Div. Ct.). [^18]: Hunter’s Square Developments Inc. v. 351658 Ontario Ltd. (2002), 2002 CanLII 49491 (ON SC), 60 O.R. (3d) 264 (S.C.J.), aff’d (2002), 2002 CanLII 9163 (ON CA), 62 O.R. (3d) 302 (C.A.). [^19]: 572383 Ontario Inc. v. Dhunna, [1987] O.J. No. 1073 (Master); Jimenez v. Barros, 2021 ONSC 6429 (Associate Judge); Correct Group Inc. v. Barrie (City), 2013 ONSC 4477; Mohammed v. Karigar, [2006] O J. No. 2946 (Master) [^20]: Khanna v. Singh 2020 ONSC 4800; Smith v. Vankoughnet, 2017 ONSC 4293; Regalcraft Homes Inc. v. Salvadori, 2014 ONSC 6990; Starwood Acquisitions Inc. v. 267 O’Connor Ltd., 2014 ONSC 4400 (Master); Interrent International Properties Inc. v. 1167750 Ontario Inc., 2013 ONSC 4746 (Master). [^21]: Can-China Real Capital Inc. v. Askar, 2021 ONSC 5043 (Master); Carttera Management Inc. v. Palm Holdings Canada Inc., 2011 ONSC 4573 (S.C.J.). [^22]: Smith v. Vankoughnet, 2017 ONSC 4293; 931473 Ontario Ltd. v. Coldwell Banker Canada Inc., [1991] O.J. No. 1150 (Gen. Div.). [^23]: Can-China Real Capital Inc. v. Askar, 2021 ONSC 5043 (Master); Ambassador Electric Inc. v. Fernwood (London), 2014 ONSC 3738 at para. 7. [^24]: 1996 CanLII 209 (SCC), [1996] 2 S.C.R. 415.