Kanthar v. Markandu, 2022 ONSC 4198

Court File and Parties

OSHAWA COURT FILE NO.: CV-21-144 DATE: 2022-07-18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Satheesvaran Kanthar and Sothinathan Ranganathan, Applicant AND: Gnanasingham Markandu and Shangar Shanmugarajah, Respondent

BEFORE: The Honourable Madam Justice S.E. Fraser

COUNSEL: Adil Habib, Counsel for the Applicants Gnanasingham Markandu, Self-Represented Shangar Shanmugarajah, Self-Represented

HEARD: July 15, 2022

Endorsement

1The issue before me on this motion is whether I should declare that the Respondent Shangar Shanmugarajah has a legal right to occupy the premises municipally described as 1000 Wrenwood Drive, Oshawa, Ontario, LIK OY1 (the Premises) and whether I should grant a writ of possession.

2I am also asked to order that that the Respondent Shangar Shanmugarajah surrender vacant possession of the Premises to the Applicant, Satheesvaran Kanthar, and the Respondent, Gnanasingham Markandu, for the purposes of completing the sale of the Premises which was ordered by this Court on February 23, 2022.

3In making this decision, I must decide whether I have jurisdiction to make this decision and whether Mr. Shanmugarajah has a right to occupy the Premises.

The Adjournment

4First, I had to address whether this matter should be adjourned.

5This motion was brought on an urgent basis with two days’ notice. At the outset of the motion, the Respondent Markandu appeared with the assistance of the Tamil interpreter. He did not have counsel. Mr. Shanmugarajah also did not have counsel.

6Mr. Markandu requested an adjournment as the lawyer that he hoped to retain on this matter was on holidays. That lawyer had previously appeared as an agent on his behalf on a case conference in this matter held on April 4, 2022.

7The adjournment was contested. I heard submissions from all parties on whether the matter should proceed.

8I decided that the matter should proceed because there would be greater prejudice to the Applicants if we did not proceed with the request for vacant possession today. While Respondent Markandu did not have counsel, he did provide responding materials, and previously filed responding materials in the main application which I had read. He is concerned that the prejudice to him is that he will be liable from a claim by the Respondent Shanmugarajah should a writ of vacant possession issue.

9As the issues in the main application are not being decided today, I could not see any prejudice to Mr. Markandu. On the other hand, the Applicants face an uncertain real estate market, there is an Order that the property which is the subject of the dispute should be sold, and the Applicant Kanthar is the only person paying the mortgage. The parties did not renegotiate the mortgage on the premises and the mortgage renewed automatically at a higher rate which is becoming unsustainable for the Applicant Kanthar.

10This is a matter with a lengthy procedural history and the Respondent Markandu has only once engaged counsel and as an agent only

11For these reasons. I decided that we must proceed.

Nature of the Dispute

12The dispute concerns the Premises. The Applicants and the Respondent Markandu set out to purchase the Premises. While the Applicant Ranganathan contributed to the purchase, he did not go on title and claims to be an owner by agreement.

13On or about February 3, 2019, the parties entered into a rental and option to purchase agreement with the Respondent Shanmugarajah after an attempt to sell the premises in October, 2018 did not succeed.

14The Respondent Shanmugarajah made an initial deposit, but he did not pay rent. The Applicants claim that he has not paid rent in over 36 months. Today, Mr. Shanmugarajah stated that he has attempted to pay rent, but that the Applicants would not accept it. He has not brought his own claim against the other parties.

15The Applicant Kanthar applied to the Landlord and Tenant Board (LTB) to evict the Respondent Shanumgararah. By order dated January 6, 2021, the LTB declined jurisdiction as Mr. Markandu and Mr. Shangar appeared before the LTB claiming that they were purchasers of the premises.

16As evidenced by the reasons of the LTB which were before me, the Respondents submitted to the LTB that it lacked jurisdiction over the application, because the property is not intended to be used as a rental property. Instead, both the Respondents testified that the Respondent Shanmugarajah purchased the property from the Applicants.

17This application was issued on January 25, 2021 and there have been a number of attendances.

18On February 4, 2022, Regional Senior Justice Edwards ordered the property sold, ordered the listing price, and the agent to be used. This matter was the subject of a case conference with Regional Senior Justice Edwards in April, 2022, as the Respondent Markandu felt that the agent was biased.

19The Premises have been listed for sale. The Respondent Shanmugarajah has not been cooperative with the sale and refuses to leave the Premises.

20The second real estate agent has received several offers which she believes are reasonable offers given shifting market conditions. The Respondent Markandu has not accepted offers. On one occasion, he argued that he could not agree to an offer for purchase and sale which provides for vacant possession where there remains a tenant in the building.

21The applicants have provided me with the cases of Lei v. Crawford, 2011 ONSC 349, and Newmon v. Glanville, 2019 ONSC 1040.

22I find these circumstances analogous to Lei v Crawford. The LTB has declined jurisdiction. This leaves the matter within the jurisdiction of the court. If Mr. Shanmugarajah is a purchaser, he has taken no steps to fulfill the deposit schedule or to make rental payment. Similarly, he has not fulfilled the requirements of his tenancy. I do not accept his submission that he attempted to pay rent but was refused.

23I find that Mr. Shanmugarajah has no legal right to occupy the property.

24There shall be an order declaring that the Respondent Shanmugarajah has no legal right to occupy the property. There shall be an order granting a writ of possession to the Applicant Kanthar and the Respondent Markandu without prejudice to the issues outstanding in the main application.

25There will be an order requiring that Respondent Shanmugarajah surrender vacant possession of the Premises by August 1, 2022 to the Applicant, Satheesvaran Kanthar, and the Respondent, Gnanasingham Markandu, for the purposes of completing the sale of the Premises which was ordered by this Court on February 23, 2022.

26The property must be sold. Applicants’ counsel requests that I add a term that if the Respondent Markandu does not agree to accept a reasonable market offer for the Premises within 48 hours of the Applicant Kanthar accepting it, that his agreement should be dispensed with. I agree and so order.

27I accept the Applicants’ submissions made orally and through their costs outline. Costs of this motion are awarded to the Applicants on a partial indemnity basis fixed in the amount of $6,055.88 plus HST to be paid by the Respondents jointly and severally. While this appears to reflect the substantial indemnity value in the costs outline, that outline does not fully account for the costs of the day and this order will not fully compensate the Applicants for this motion.

28I find the Respondent Markandu could have consented to the order especially since he takes the position that an order for vacant possession is required before the property is sold. Much of his submissions could be construed as opposing this order. Certainly, he wanted all the issues to be resolved at once. The Respondent Markandu states that he is not opposing this and yet he did not consent.

29Approval as to form and content of the order by the Respondents is dispensed with. Counsel for the Applicants will forward the draft order to my Judicial Assistant at an address previously provided.

30This endorsement was read out by me in court and translated by the Tamil interpreter with the Respondents present. I am grateful for his assistance.