Court File and Parties

COURT FILE NO.: CV-19-633074 DATE: 2022-10-13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Logan Ablitt, Plaintiff AND: Demitry Papasotiriou-Lanteigne (also known as Demitry Papasotiriou), personally and in his capacity as Estate Trustee of the Estate of Hermann Sprier, Kakouli Poka and the Heirs-at-law of the Estate of Hermann Spreier, Defendants

BEFORE: W.D. Black J.

COUNSEL: Quinn Giordano, for the Plaintiff/responding party Eric D. Freedman, for the Defendants/moving parties

HEARD: September 15, 2022

ENDORSEMENT

Overview

[1] The defendants move to set aside a Certificate of Pending Litigation (the “CPL”) granted by Koehnen J. as part of an Order made by His Honour, ex parte, on December 7, 2020. The CPL is registered on title to the property at 41 Hill Crescent in the City of Toronto. There are various other elements of Koehnen J.’s Order that the defendants do not seek to disturb.

[2] The fundamental proposition animating the defendants’ motion is that the plaintiff has not met the preliminary requirement of having a triable interest in the land which, the defendants argue, is a threshold condition to justify a CPL.

Background Facts

[3] There is an interesting story at the heart of this litigation, peripherally related to ongoing criminal proceedings.

A. Papasotiriou’s Murder Charge(s) and Conviction

[4] That is, by way of brief summary, the defendant, Mr. Papasotiriou-Lanteigne (“Papasotiriou”), was convicted in 2018, together with a co-accused, of the murder in March of 2011, of his then husband, Allan Lanteigne.

[5] It was reported in 2013 that Papasotiriou, with the trial of his first-degree murder charge pending, sought to recover the $2 million proceeds of a life insurance policy relative to his alleged victim Mr. Lanteigne.

[6] Following a three-week preliminary hearing for Papasotiriou and his co-accused in 2014, Nakatsuru J. dismissed the charge against Papasotiriou (committing the co-accused to trial).

[7] However, Ontario’s attorney general then issued a preferred indictment reinstating the charge against Papasotiriou. While the trial was pending, Papasotiriou brought two separate motions seeking a dismissal of the charge against him on the basis that there were alternate suspects whose alleged potential role(s) in the murder had not been investigated. These motions were dismissed, and following a six-month trial in 2017 and 2018, before Goldstein J. and a jury, Papasotiriou and his co-accused were convicted of first-degree murder.

[8] At the time of the motion before me, I am advised that Papasotiriou remains on bail pending appeal.

[9] In parallel to the criminal proceedings, at least to a large extent, the events unfolded giving rise to the claim in which the motion before me is brought.

B. Papasotiriou Prepared Will for Plaintiff’s Stepfather

[10] In 2007, Papasotiriou, then a practicing lawyer in Ontario, prepared the Last Will and Testament (the “Will”), of Hermann Spreier, the plaintiff’s stepfather.

[11] Mr. Spreier died in August of 2011.

[12] Janice Ablitt, the plaintiff’s mother and the common law spouse of Mr. Spreier, died in January of 2015.

C. Plaintiff Obtains Original Will and Gives it to Papasotiriou

[13] The plaintiff says that following his mother’s death, he received various property that had been in her possession, including the Will. The plaintiff maintains that under the Will, he was the sole residual beneficiary of Mr. Spreier’s estate.

[14] He says that after receiving the Will, he was contacted by Papasotiriou, who advised the plaintiff that he was the lawyer who had prepared the Will and was the Estate Trustee under the Will. The plaintiff claims that Papasotiriou asked the plaintiff for the Will and for various of Mr. Spreier’s other documents, including banking documents.

[15] The plaintiff says that at the time of these initial interactions with Papasotiriou, he was unaware of Papasotiriou’s then pending trial for first-degree murder. He says that when he learned of the criminal proceedings and raised this with Papasotiriou, Papasotiriou assured the plaintiff that he was innocent and would be acquitted. The plaintiff says he trusted Papasotiriou at that point and that in any event he felt he needed Papasotiriou’s help to administer Mr. Spreier’s estate.

D. Deterioration of Solicitor‑Client Relationship

[16] However, in the ensuing months, the plaintiff says that the relationship deteriorated and that Papasotiriou stopped responding to the plaintiff’s inquiries about the status of the estate administration.

[17] The plaintiff hired another lawyer and on December 11, 2017, (at which point I note, apparently unbeknownst to the plaintiff, Papasotiriou’s criminal trial would have been ongoing), McEwan J. made an Order requiring Papasotiriou to deliver to the plaintiff the (original) Will.

E. Delivery to the Plaintiff of A Will (Allegedly Not The Will)

[18] On December 20, 2017, ostensibly in compliance with McEwan J.’s Order, then counsel for Papasotiriou delivered a document to the plaintiff purporting to be the Will, but, according to the plaintiff, bearing no resemblance to the Will (formerly in the plaintiff’s possession).

[19] This Will (the “Allegedly Fraudulent Will”) is the basis for the claim in which the motion before me is brought.

F. Allegedly Fraudulent Will Leaves Half of Estate to Papasotiriou’s Mother

[20] The Allegedly Fraudulent Will purports to leave 50% of Mr. Spreier’s estate to the plaintiff and the remaining 50% to the defendant Kakouli Poka, who is the mother of Papasotiriou. The plaintiff deposes that to his knowledge, Mr. Spreier and Poka had never met.

[21] The plaintiff alleges that the defendants duped and defrauded him by concealing or destroying the Will and replacing it with the Allegedly Fraudulent Will. He alleges that they did so in order to improperly divert proceeds of Mr. Spreier’s estate to themselves rather to the plaintiff, who is the true sole beneficiary to that estate.

Plaintiff’s Ex Parte Motion in December of 2020 and CPL

[22] The action was commenced in December of 2019, and in December of 2020, the plaintiff brought an ex parte motion for various relief including an Order for leave to register the CPL on title to 41 Hill Crescent.

[23] 41 Hill Crescent is a property owned by the two defendants and a third person, Poka’s estranged husband.

[24] Unfortunately, there does not appear to be an endorsement available reflecting Koehnen J.’s reasons for decision on the ex parte motion, but there is an Order in which His Honour granted, among other relief, the Order for leave to register the CPL on title to 41 Hill Crescent.

No Evidence that Property Subject to CPL is Involved in Issues in the Action

[25] There is no attempt, in the motion materials that were before Koehnen J. on the ex parte motion, to suggest that 41 Hill Crescent, is in any way involved in the dealings between the plaintiff and the defendants to that point, or to suggest that the plaintiff had a pre-existing interest in that property. Rather, the materials filed on the ex parte motion say that 41 Hill Crescent is the only asset of which the plaintiff was aware to satisfy any judgment that he might obtain against the defendants, and that subject to further developments in Papasotiriou’s criminal proceedings, (success on his appeal or completing his sentence if the conviction was upheld), there was a risk that Papasotiriou might leave the country (in the period leading up to his return to Canada in 2012, Papasotiriou had lived for a time in Switzerland and Greece).

Discussion of Basis for a CPL

[26] The fact that the plaintiff cannot show and does not even assert an interest in the property at 41 Hill Crescent, except as an asset potentially available to satisfy a judgment, is in my view a death knell for maintaining the CPL.

[27] Section 103 of the Courts of Justice Act, R.S.O. 1990, c. C.43, Rules 42.01 and 42.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and caselaw are clear in establishing that in order for a CPL to issue, the proceeding in question must be one in which an interest in land is in question. Put the other way around, as Perell J. did in 1861067 Ontario Inc. v. Sang, 2021 ONSC 7226, at para. 53, “If the proceeding does not involve an interest in land, then the plaintiff is not entitled to a Certificate of Pending Litigation.”

[28] Justice Perell went on to note that, at para. 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.

[29] His Honour referenced the so-called “Dhunna factors”, (from 572383 Ontario Inc. v. Dhunna (1987), 24 C.P.C. (2d) 287 (Ont. S.C.)), a non-exhaustive list of factors for the court to consider in determining whether or not it would be just to discharge a CPL. I do not propose to list them here, but on their face they are factors which start from the premise that there is an issue about an interest asserted in land at the heart of a dispute.

[30] In Todd Family Trust v. Barefoot Science Technologies Inc., 2013 ONSC 523, 303 O.A.C. 327 (Div. Ct.), Lederer J. for the Divisional Court, held (speaking of the Courts of Justice Act):

The Act constitutes a complete code for obtaining a certificate of pending litigation, as well as for its subsequent discharge. It provides that a certificate of pending litigation can issue only in circumstances where an interest in land is in question and where the party at whose instance the certificate is issued has a reasonable claim to that interest in land. It provides that a certificate of pending litigation can be discharged if the party who obtained it does not have a reasonable claim to the interest in the land claimed (see: ss. 103(1), 103(4) and 103(6)(a)(ii) of the Act). In short:

“…[if] the proceeding does not involve an interest in land, then the plaintiff is not entitled to a certificate of pending litigation.”

[31] The defendants point to other shortcomings in the claim for the CPL, including that it is not specifically claimed in the statement of claim. There is also some debate between the parties about whether or not the affidavit in the defendants’ materials is properly before me, or ought to be struck.

[32] In my view, all of those issues become academic and are subsumed in the candid concession by plaintiff’s counsel that the claim is not, and has no basis in the factual matrix and dispute between the parties to be, for an interest in the property in question. Rather, as set out above, the plaintiff claims that 41 Hill Crescent is potentially the only asset available to satisfy a judgment.

[33] Absent a legitimate triable interest in land as would justify a CPL, there is generally no right to security for a judgment. The exception is a Mareva injunction. Plaintiff’s counsel in fact suggested in his submissions that perhaps what Koehnen J. intended was a Mareva Order rather than a CPL.

[34] We cannot know for certain, given that no reasons have surfaced relative to Koehnen J.’s decision, whether His Honour had something like that in mind. Frankly, I think it unlikely. In the materials that were before His Honour, there is no undertaking as to damages as would be required were an injunction sought, and no claim for Mareva-type relief spelled out. There is also no ten‑day “comeback” provision in Koehnen J.’s Order, which would be the case if he had intended that type of ex parte injunctive relief.

[35] I pause to note that I do not blame the plaintiff for wishing to secure the defendants’ asset in advance of trial. Papasotiriou is currently a convicted murderer and, in the motions within the criminal proceedings in which he asserted that others might be responsible for the murder of which he was ultimately convicted, the judges hearing those motions essentially labelled the evidence in support of those assertions as implausible or even fabricated.

[36] If the plaintiff’s version of events in the claim is accepted at trial, then the defendants will be shown to have perpetrated an opportunistic and unsavory fraud.

[37] The plaintiff’s difficulty, for current purposes, is that that version of events has not yet been tested, let alone proved, and there is nothing in the record before me to justify the maintenance of the CPL or the granting of extraordinary Mareva relief.

Conclusions

[38] In the circumstances I believe I have no choice but to grant the defendants’ motion and to discharge the CPL.

[39] There was discussion during the course of submissions about the possibility of the plaintiff actually proceeding with a motion for Mareva-type relief. In addition, or in the alternative, if the plaintiff unearths evidence that the proposed sale of 41 Hill Crescent is non-arm’s length, and/or for illicit purposes, it is conceivable that the plaintiff could seek to set aside any such sale as a fraudulent conveyance.

[40] Obviously, it will be the plaintiff’s call as to whether or not and at what point, to seek alternative relief with respect to the property (or otherwise). At the moment, however, on the record before me, I cannot see a basis for the CPL or other relief.

[41] I should note, as a final matter, that the plaintiff argued that selling 41 Hill Crescent, assuming Papasotiriou would not remain on as a tenant, would constitute a breach of his current bail conditions (posited by the plaintiff as a further reason why the CPL should remain in place). If that is true, in my view it is something for Papasotiriou to address within the confines of the criminal proceedings, and not something which would cause me to keep the CPL in place (by way of enforcing Papasotiriou’s bail conditions).

Observations re Costs

[42] For the reasons set out above, the motion is granted.

[43] It appears that only the plaintiff filed a costs outline as required.

[44] The defendants are the successful party, and would notionally be entitled to their costs, but in the absence of a costs outline there is no basis on which I can consider, let alone determine what, if any, costs amount would be appropriate here.

W.D. Black J.

Date: October 13, 2022