COURT FILE NO.: CV-17-1768-00

DATE: 2022 12 06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Shazia Tariq Paracha, Tariq Paracha, and Shabana Zain

Plaintiffs

• and -

Naqi Construction Ltd., Rabia Batool, and Muhammad Ali

Defendants

Rosemary A. Fisher and Daniel Lilko, counsel for the Plaintiffs

Tariq Wasey Khan, counsel for the Defendants

HEARD at Brampton by Zoom

REASONS FOR JUDGMENT

Bloom, J.

I. INTRODUCTION

[1] The case at bar involves claims by the Plaintiffs against the Defendants, Batool and Ali, and claims by them against the Plaintiffs, in relation to the purchases of four pieces of real estate, renovation of some of them, related items such as rental revenues, and sale of some of them. The events in issue occurred largely in 2016 and 2017.

[2] There is, in substance, no contractual documentation defining the rights and obligations of the parties among themselves. Accordingly, the reliability and particularly the credibility, of the testimony of the parties and of other viva voce evidence is of crucial importance in deciding the issues. Much of the evidence was adduced by affidavit evidence serving as all or part of examination-in-chief; where I refer to consideration of testimony I include evidence given by affidavit unless I state otherwise.

[3] I should further note that the pleadings consist of a Statement of Claim, Statement of Defense and Counterclaim, and a Reply. Within the context of those pleadings, I have considered the allegations of the parties set out in their written and oral closing submissions. I have reviewed all of the evidence in that framework of pleadings and submissions.

[4] The Plaintiffs, Tariq and Shazia Paracha, are husband and wife. Shabana Zain is a relative of theirs.

[5] The Defendants, Muhammud Ali and Rabia Batool, are also husband and wife. Naqi Construction Ltd. is Ali’s company. The transactions in question do not involve that company in any material way.

[6] The Plaintiffs and Defendants were involved in tranactions relating to the following four real estate properties in the period 2016 to 2017: (1) 15 Coomer Crescent, Ajax, Ontario (“Coomer”), (2) 63 McSweeney Crescent, Ajax, Ontario (“McSweeney”), (3) 9 Sykes Street, Ajax, Ontario (“Sykes”), and (4) “CedarOaks” in Ajax, Ontario.

[7] It is common ground that one of both of the Parachas advanced at least $363,000 to Batool and Ali. Batool and Ali contend that the vast majority of the funds were advanced by way of loan and were not a purchase of ownership interests in the four properties. The Parachas argue that the money was advanced to purchase ownership interests in the properties.

[8] By way of structure to my reasons, I intend to review each of the four transactions considering for each the arguments of the parties, setting out the applicable legal principles, and undertaking an analysis in which I making findings of fact and apply the law to the facts. In making the findings of fact, I will make findings of credibility and reliability. Of necessity findings of credibility and reliability as stated on the first of the transactions analyzed will have an impact on the analyses of the others.

II. THE TRANSACTIONS

A. Coomer

(i) Arguments of the Parties

a. Arguments of the Plaintiffs

[9] The Plaintiffs, Shazia and Tariq Paracha, argue that on all four transactions the interest of one of them is the interest of both of them, because their funds come from a common pool.

[10] On the Coomer transaction they argue that the property is entirely theirs beneficially. In that regard they point to the fact that the Defendants have not pleaded any ownership interest in Coomer; rather they have admitted that Shazia Paracha owned the property and have simply counterclaimed for $119,559.73 for renovation work.

[11] The Parachas further support their claim that the Defendants have no beneficial interest in the property by highlighting that the Defendants have tendered in evidence no documentary proof of investment in acquiring Coomer. The Parachas also claim sums for the defective renovation work of Ali at Coomer and for the cost of remediating it.

b. Arguments of the Defendants

[12] The Defendants argue that Ali contributed 25% of the purchase price of Coomer and was entitled on that basis to a 25% benfefical interest in the property, plus a further 15% beneficial interest in it for his renovation and construction work on it.

[13] The Defendants also argue that Ali was entitled to a percentage of the rent received on the property equivalent to the percentage of his ownership interest in Coomer.

(ii) Applicable Legal Principles

[14] First, I note that both parties accept and rely upon the principle that contracts may be orally created.

[15] Second, as noted in Goldsmith and T.G. Heintzman, Goldsmith on Canadian Building Contracts, fourth edition (Toronto: Carswell) 1988 at pp. 5-11 to 5-14, work, which in the absence of specifications contained in a contract, is not of reasonable workmanlike quality, is not in proper compliance with the contract and constitutes a breach of it.

(iii) Analysis

[16] I have determined that Coomer was acquired beneficially entirely by Mr. and Mrs. Paracha; and that the Defendants had no beneficial interest in it. I shall now explain my reasoning for that conclusion.

[17] First, the Defendants in their Statement of Defense and Counterclaim accept that Coomer was owned beneficially by Shazia Paracha. The Defendants rather allege that she owes them money for renovations to the property which they completed, as well as for their tools, appliances, and materials left at Coomer. There is also no claim for a portion of the rent earned from Coomer.

[18] Second, I have considered the evidence on the issue of investment in Coomer. That evidence supports the inference