COURT FILE NO: CV-21-76450 & CV-21-76912
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: DONOVAN LOCKE
- and - FAIZA SULTANA and VIOLETTE SYPNIEWSKI
AND RE: DONOVAN LOCKE
- and - SHANNON LYNDSEY MURPHY, FAIZA SULTANA and VIOLETTE SYPNIEWSKI
BEFORE: The Honourable Mr. Justice P. R. Sweeny
COUNSEL: Orlando Vinton for the plaintiff Antal Backaity for the defendant, Violette Sypniewski, Sean Dewart and Nasha Novac for the defendant, Faiza Sultana, James R Cook and Dara Hirbod for the defendant, Shannon Lyndsay Murphy
ENDORSEMENT
Introduction
1Violetta Sypniewski and Donovan Locke were in a common law relationship. They were registered on title to their home at 20 Chesswood Trail, Hamilton (the Property) as joint tenants. They are the parents of one child.
2They separated in November 2019. After obtaining legal advice, Ms. Sypniewski severed the joint tenancy to the Property by registering a transfer of her interest to herself on February 19, 2021.
3Mr. Locke first issued a claim against Ms. Sypniewski in relation to the Property. He issued a second claim against Ms. Sypniewski and Ms. Sultana, her former lawyer who provided her advice with respect to severing the joint tenancy. He issued a third claim against Ms. Sypniewski, Ms. Sultana, and Ms. Murphy, the lawyer who prepared and registered the transfer which severed the joint tenancy.
4With respect to the second and third claims, the defendants moved for summary judgment dismissing the claims in their entirety.
5In total, there were five motions for summary judgment before me on July 14. In addition, there were three motions brought by the plaintiff: (1) the plaintiff’s Constitutional Question and Inspection motion for, inter alia, a declaration as to the constitutional validity or applicability of a rule of common law; (2) the plaintiff’s motion for order on admissions pursuant to rule 51.06 of the rules of civil procedure; and, (3) the plaintiff’s motion for criminal contempt against Ms. Murphy. In addition, during the hearing, the plaintiff sought to argue a motion previously brought in the first action to compel Ms. Sypniewski to attend for cross-examination on the basis that she had not attended for cross-examination in the context of a motion in the first action.
6At the hearing, I directed the motions for summary judgment proceed first on the basis that the plaintiff’s motions were essentially responses to the motions for summary judgment. Then, the plaintiff’s motions would proceed.
7Counsel for the defendants had determined the order of submissions on the summary judgment motions.
Overview
8Mr. Locke and Ms. Sypniewski were in a common law relationship and have one 14-year-old daughter. They acquired the Property as joint tenants on December 5, 2014. Their relationship broke down in 2019.
9In November 2019, Ms. Sypniewski retained a lawyer named Faiza Sultana to advise her with respect to claims for child and spousal support, custody and access and property issues. Mr. Locke retained a lawyer named Orlando Vinton to act for him.
10Between November 2019 and February 2021, Ms. Sultana and Mr. Vinton corresponded to try to negotiate a settlement of their clients' differences. These efforts failed and on February 8, 2021, Ms. Sultana advised Mr. Vinton that she had been instructed to commence legal proceedings. Ms. Sultana began to draft material, but before proceedings were commenced, Ms. Sypniewski decided to retain another lawyer and Ms. Sultana's retainer came to an end.
11While she was still acting for Ms. Sypniewski, Ms. Sultana had recommended that she sever the joint tenancy to the home, so that it would not pass to Mr. Locke by survivorship if Ms. Sypniewski died before the parties settled their disputes.
12After Ms. Sultana ceased to act, Ms. Sypniewski retained a lawyer named Shannon Murphy to register a transfer whereby Ms. Sypniewski transferred her one-half interest in the Property to herself as a tenant-in-common. Ms. Sultana did not arrange for Ms. Murphy to act for Ms. Sypniewski.
13The effect of the transfer is to sever the joint tenancy, that means that her interest will not pass to Mr. Locke if she dies. Her ownership interest in the property is unaffected as is Mr. Locke’s.
14Ms. Sypniewski commenced proceedings in Family Court for support and other relief under the Family Law Act.
15Mr. Locke has issued three statements of claim with respect to the transfer of title that Ms. Sypniewski registered to sever the joint tenancy.
| Court File No. | Date Issued | Defendants |
|---|---|---|
| CV-21-75784 | April 12, 2020 | Violette Sypniewski |
| CV-21-76450 | July 6, 2021 | Violette Sypniewski Faiza Sultana |
| CV-21-76912 | August 27, 2021 | Violette Sypniewski Faiza Sultana Shannon Murphy |
16The first claim, issued against Ms. Sypniewski only, is not the subject of these motions for summary judgment. In that action, the plaintiff seeks, inter alia, a declaration that he holds a 100% beneficial interest in the property and a declaration that Ms. Sypniewski’s transfer is void under the Fraudulent Conveyances Act
17In the second claim, the plaintiff seeks damages for the tort of deceit, concerted action liability, and punitive and exemplary damages in connection with the Property.
18In the third claim, the prayer for relief refers to the “tort of conspiracy”. The statement of claim goes on to refer to the “tort of unlawful conduct conspiracy” and “concerted action liability”. There is also reference to the two prior claims and “malicious falsehood by slander of title,” breach of the Fraudulent Conveyances Act, deceit and concerted action liability as pleaded in the second action.
19Notwithstanding the order in which the motions were argued, I am going to address the plaintiff’s motions first.
Issues
(1) Does a constitutional question arise in this case and is the plaintiff entitled to an order for inspection?
(2) Did Ms. Murphy commit criminal contempt?
(3) Is the plaintiff entitled to an “order on admissions”?
(4) Is Ms. Sypniewski required to attend for cross examination on an affidavit filed in the first action?
(5) Is this an appropriate case for summary judgment?
(6) Has the plaintiff suffered any damages as a result of the conduct of the defendants?
(7) Does the plaintiff have a claim for conspiracy?
(8) Does the plaintiff have a claim under the Fraudulent conveyances Act?
(1) Does a constitutional question arise in this case and is the plaintiff entitled to an order for inspection?
20In my view, the Notice of Constitutional Question motion is ill conceived. As I understand it, the plaintiff objects to the legal principle that a lawyer cannot conspire with his or her client. As I view the authorities, such a blanket determination has not been made in the case law. In any event, this is a legal principle to be developed through the common law.
21The plaintiff submitted that a rule that would exempt lawyers from being liable for conspiring with their clients is contrary to the rule of law that all persons are treated equally. It is not a constitutional question. There is no Charter right alleged to be infringed.
22The plaintiff purported to oppose the motion for summary judgment on the basis that it would be inappropriate to make such a determination on a motion for summary judgment. In any event, my decision on the summary judgment motion is not based on a finding that a lawyer cannot conspire with a client.
23The plaintiff asserts there is a waiver of privilege as a result of a cross-claim made by Ms. Sypniewski for contribution and indemnity from her lawyers in the event she was held liable to the plaintiff. He says he is entitled to inspect correspondence between Ms. Sypniewski and her lawyers. There was no waiver of privilege that would entitle the plaintiff to inspect correspondence between Ms. Sypniewski and her counsel.
24To the extent that there is a Notice of Constitutional Question motion and a motion to inspect, it is dismissed.
(2) Did Ms. Murphy commit criminal contempt?
25The plaintiff’s motion for criminal contempt against Ms. Murphy is based on alleged false statements made by her in her affidavit sworn is support of her motion. The false statements appear to be her comments on the effect of the reply filed by the plaintiff to the statement of defence.
26I do not find the affidavit is false. I understand what she was intending to communicate. It is not misleading. This motion is dismissed.
(3) Is the plaintiff entitled to an “order on admissions”?
27The plaintiff has brought a motion with respect to alleged admissions of Ms. Sypniewski made as a result of failing to reply to a Request to Admit that required her to admit that she made no mortgage payments and made no property tax payments on the property and that she advised both Sultana and Murphy of those facts.
28Ms. Sypniewski submits that these admissions were made in her statement defence to the statement of claim in the first actions. She does not dispute that she did not make mortgage payments or pay tax on the property. Her claim is that her interest in the property arises from other facts. The facts contained in the admissions are not relevant to the issues in these actions.
29This motion is dismissed.
(4) Is Ms. Sypniewski required to attend for cross-examination on an affidavit filed in the first action?
30The plaintiff purported to argue a motion arising from the non-attendance of Ms. Sypniewski for cross-examination on an affidavit filed in the context of a motion brought by the plaintiff for a certificate of pending litigation, which is not the subject of the motions for summary judgment before me. I am unsure as to how that motion came to be before me on July 14.
31In any event, the plaintiff examined Ms. Sypniewski on March 9, 2022. If he wished to ask questions on a previous affidavit filed and withdrawn, he was entitled to ask those questions or seek to ask those questions and if there were refusals, he would have his remedies. A certificate of non-attendance is proof that a party did not attend. It does not entitle a party as of right to have another attendance.
32This motion, to the extent that it was before me, is dismissed.
(5) Is this an appropriate case for summary judgment?
33The test for summary judgment was succinctly set out by Koehnen J. in Waxman v. Waxman, 2021 ONSC 2180 at paras 57 -60, as follows:
[57] The test for summary judgment is not in dispute. The rules provide that the court shall grant summary judgment if “the court is satisfied that there is no genuine issue” that requires a trial. Put another way, I must grant summary judgment unless a trial is required.
[58] There is no genuine issue that requires a trial if the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. “This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”
[59] In determining whether a trial is required, rule 20.04(2.1) allows the court to weigh evidence, evaluate credibility and draw any reasonable inference from the evidence, unless it is “in the interest of justice for such power to be exercised only at a trial”. If these expanded fact-finding powers do not enable me to decide the matter, I may direct that a mini-trial be conducted if doing so will allow me to resolve the matter.
[60] It is well-established that on a motion for summary judgment: (a) each party must put its best foot forward; (b) the responding party “must lead trump or risk losing”; and (c) the motion judge is entitled to assume that all evidence that might be adduced by the respondent at trial has been adduced on the motion.
34In the action against Ms. Sypniewski and Ms. Sultana, the plaintiff’s evidence in his affidavit is that he believes his claims “have a real chance of success”. This affidavit does not contain any evidence of damages sustained as a result of the conduct of which he complains. Essentially, there is no evidence in response.
35In the third action, the responding material includes an affidavit which consists of the plaintiff’s belief that there is a genuine issue for trial on the basis that Ms. Murphy stated that lawyers are exempt from liability for the tort of conspiracy. He also deposes that Ms. Murphy is being sued by her former client for this conspiracy. This assertion is based on a crossclaim made in the action for contribution and indemnity. He deposes that he “doubts the correctness of the assertion that lawyers are immune from liability for conspiracy while acting within the client’s instructions.” There is no evidence of any damages he has sustained.
36The plaintiff’s response to the motion brought by Ms. Sypniewski refers to her alleged admissions. He alleges that she admitted “the agreement to conspire with the intent to injure.” In his affidavit he deposes that “I believe that the defendants are bound by the admissions and that these admissions to the requisite elements of conspiracy show a real issue to be tried on admissible evidence.” This is not evidence and in fact is an assertion that there is evidence. In response to a motion for summary judgment the responding party must lead the evidence and not say that there is some. There is really no evidence in this response.
37The plaintiff and Ms. Sypniewski separated. After obtaining legal advice, she severed the joint tenancy to the Property by registering a transfer. These facts are acknowledged.
38Notwithstanding the plaintiff’s submissions, there are no material facts in dispute. This an appropriate case for summary judgment.
(6) Has the plaintiff suffered any damages as a result of the conduct of the defendants?
39Title to the property was vested in the plaintiff and defendant as joint tenants. Ms. Sypniewski registered a transfer which severed the joint tenancy. The Court of Appeal clarified the effect in Horne v. Horne Estate, 1987 CarswellOnt 328 at para 14:
A severance of a joint tenancy neither interferes with nor affects the existing balance between spouses with respect to the ownership or occupation of the matrimonial home during their marriage.
40The transfer severs the joint tenancy, leaving the parties on the property as tenants-in-common. This is permitted. It has no effect on any claims with respect to ownership of the property. The plaintiff is entitled to purse his claim for beneficial ownership. The defendants acknowledge this right. The plaintiff has suffered no loss.
41On the motion, the plaintiff submitted that he severed the joint tenancy in correspondence sent on February 3, 2021, which he submits amounted to severance by a “course of dealing”: see Hansen Estate v. Hanson, 2012 ONCA 112. I asked plaintiff’s counsel about the nature of the plaintiff’s complaint. Ms. Sypniewski, by registering the transfer on February 19, let all the world know that the joint tenancy had been severed. It confirmed his position. The Plaintiff’s counsel submitted that this conduct formed the basis for the unlawful conduct of the defendants. I was unable to understand the reasoning.
(7) Does the plaintiff have a claim for conspiracy?
42In EnerWorks Inc. v. Glenbarra Energy Solutions Inc., 2012 ONSC 414, Perell J. outlined the requirements for the tort of conspiracy as follows:
[68] The elements of conspiracy to injure are: (1) the defendants acted in combination; (2) the defendants intended to harm the plaintiff; and (3) the defendants’ conduct caused harm to the plaintiff.
[69] The elements of conspiracy to perform an unlawful act are (1) the defendants acted in combination; (2) the defendants committed an unlawful act, i.e. a crime, tort, or breach of statute; (3) the defendants knew or should have known that injury to the plaintiffs was likely to occur from their misconduct; and (4) the defendants’ misconduct in furtherance of the conspiracy caused harm to the plaintiff.
43In this case, on the evidence there is no agreement. Ms. Sultana’s retainer had ended when Ms. Murphy effected the transfer. The fact that Ms. Sypniewski admitted a paragraph in the claim does not establish that there was an agreement between them.
44Even if there was an agreement, the sole purpose of the act of registering the transfer was to sever the joint tenancy. The predominant purpose was not to harm the plaintiff.
45The transfer severing the joint tenancy was lawful. There is no unlawful act.
46Finally, the plaintiff has suffered no damages. He does not depose to suffering any damages which is not surprising because he has not suffered any harm.
47The plaintiff has no claim for conspiracy.
(8) Does the plaintiff have a claim under the Fraudulent Conveyances Act?
48Section 2 of the Fraudulent Conveyances Act, R.S.O. 1990. C. F.29 reads, as follows:
- Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.
49There is no evidence that the plaintiff is a creditor of Ms. Sypniewski. In any event, she transferred her interest in the property to herself. She remains on title. Her interest in the property is not affected by the transfer. It would be available for any creditor. This cannot be characterized as a fraudulent conveyance.
50There is no claim for a fraudulent conveyance.
51In conclusion, with respect to the summary judgment motions:
(1) There is no conspiracy. There is no “concerted action liability.” The plaintiff has suffered no damages. The defendants in the second claim, court file number 21-76450, are granted summary judgment dismissing the claim in its entirety.
(2) There is no conspiracy. There is no dishonesty. There are no unlawful acts. The plaintiff has suffered no damages. The defendants in the third action, court file number 21-76912, are granted summary judgment dismissing the claim in its entirety.
Costs
52The defendants were successful and are entitled to their costs.
53At the hearing of the motions, the plaintiff did not provide a cost outline. Counsel submitted that he wanted to make written submissions on costs. I advised that it would be my decision as to whether written submissions were necessary. He undertook to prepare a cost outline which he did. The plaintiff sought $41,523.25 on a full indemnity basis and $27,888.75 on a partial indemnity basis for the motions. This provides some information to assess the reasonableness of the costs claimed by the defendants. I do not need written submissions on costs.
54The defendants provided cost outlines at the hearing. This was a summary judgment motion which included cross-examinations. There was extensive material filed and submissions made. The defendants worked together and there was a reduction in the time spent.
55With respect to the defendant Murphy, she claims costs on a partial indemnity basis of $18, 405.65 for the summary judgment motion and $5, 034.70 for the action. Her costs are a little higher than Ms. Sultana’s which is understandable because her factum dealt with the test on a motion for summary judgment and was referred to by the other defendants. She filed a reply factum in response to the contempt motion brought on June 22, 2022. The hourly rates charged are reasonable and the time spent is reasonable. The plaintiff shall pay to the defendant Murphy her costs of the motion and the action on a partial indemnity basis fixed in the amount of $24, 000 all-inclusive forthwith.
56The defendant Sultana claims costs a partial indemnity basis in the amount of $19, 287.99 for the motion and the actions. The hourly rates are reasonable. The time spent is reasonable. The Plaintiff shall pay to the defendant Sultana her costs of the motions and the actions a partial indemnity basis fixed in the amount of $19, 000 all-inclusive forthwith.
57The defendant Sypniewski claims costs of the motions and actions on a partial indemnity basis in the amount of $14, 423.77. I find the hourly rates are reasonable and the time spent is reasonable. The plaintiff shall pay to the defendant Sypniewski, her costs of the motion and the actions fixed in the amount of $14, 400 all-inclusive forthwith.
P. R. Sweeny R.S.J.
Released: July 25, 2022