Court File and Parties
Court File No.: CV-21-00670051-0000 Date: 2021-11-10 Superior Court of Justice – Ontario
Re: Sep Fond Allan Chan, Kim Yin Chan and Stella Chan, Applicants And: Allan K. Chan and Jane Chan, Respondents
Before: S.F. Dunphy J.
Counsel: Stephen Turk, for the Applicants David Goodman, for the Respondents Bryan Tannenbaum for the proposed Sales Officer
Heard at Toronto: November 10, 2021
Reasons for Decision
[1]
Overview
This is perhaps the textbook case of when Partition is called for.
2The subject residential property is owned 25% by each of the Applicants plus Mr. Allan Chan. The three applicants are the mother, father and sister of the respondent Allan Chan. The applicants have been attempting to arrange for the sale of the property for some time but have had less than cordial relations with the respondents who are actually living in the property.
3It is clear to me that the parties are essentially unable to agree to anything if left to their own devices. The Respondents have agreed to move out of the property by November 30, 2021 thus clearing the way for a sale. However, more than that would be needed to get the sale happening with minimum court involvement: a broker needs to be selected, a listing agreement signed, showings arranged, a process for selecting and approving potential sales put in place to name but a few details.
4The applicants have proposed to appoint RSM to conduct the sale. The respondents agree to a sale taking place but sought to avoid having a third party conduct the sale and the expenses entailed by doing so.
5While it would be cheaper and more efficient to dispense with a professional firm such as RSM were there any reasonable prospect of these parties coming to an agreement on the essential steps needed to actually conduct and complete a sale, I should have been more receptive to the argument. However, the professional fees to be charged by RSM will almost certainly be a fraction of the legal costs to be incurred and time lost in coming back to court two, three or more times to resolve each discrete step in the process when the parties prove unable to agree as I am confident they would do.
[6]
Appointment of Sales Officer
I am ordering that RSM be appointed to conduct the sale process. They have a vast experience in conducting similar sales and are eminently qualified to run the process efficiently and to maximize value. It must be clear to all parties that RSM is a court-appointed officer. They will consult with but will not take directions from any of the parties.
7The process worked out with counsel will permit RSM to conduct the sales process, select an agent, negotiate and clos a sale agreement and ultimately to pay out the sales proceeds to the parties in accordance with their respective 25% interests. Further court involvement should not prove necessary subject only to potentially having to review the final costs of RSM when they render their accounts or to issues arising in discharging any encumbrances that may be found on title. If by some miracle the parties are able to agree on the accounts rendered by RSM, then even that step may prove unnecessary.
[8]
Costs
The parties were in sharp disagreement on costs. The applicants posted a substantial indemnity outline of costs showing costs in the amount of $15,833 which they strongly urged me to order the respondents to pay. In cases such as this, communication breakdowns often have multiple causes. A partition application was always going to be necessary here because there was simply no prospect in reality of the parties agreeing to all that would have needed agreement. If the respondents proposed broker X, the applicants would have asked for broker Y, etc. The costs of bringing this application and getting RSM appointed have benefitted all of the owners of the land and I ordered the $15,833 claimed in costs to be paid to the applicants by RSM from the proceeds of sale, thus indirectly spreading that cost over the four owners of the land who will benefit from the sale.
S.F. Dunphy J.
Date: November 10, 2021