COURT FILE NO.: CV-21-2817-0000
DATE: 2022-12-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sukhbender Singh Sandhar
D. Singer and N. Condotta for Plaintiff
Plaintiff
- and -
Surjit Kaur Sandhar, 2234886 Ontario Inc. and Jorawar Singh Sandhar
R. Botiuk for Surjit Kaur Sandhar and Jorawar Singh Sandhar A. Sidhu for 2234886 Ontario Inc.
Defendants
AND BETWEEN:
2234886 Ontario Inc.
A. Sidhu for Plaintiff by Counterclaim
Plaintiff by Counterclaim
- and -
Karnail Sandhar, Surjit Kaur Sandhar, Jorawar Singh Sandhar and Sukhbender Singh Sandhar
R. Botiuk for Karnail Sandhar, Surjit Kaur Sandhar and Jorawar Singh Sandhar D. Singer and N. Condotta for Sukhbender Singh Sandhar
Defendants by Counterclaim
HEARD October 26, 27 and 28, 2022
REASONS FOR DECISION
C. Chang J.
Preliminary Matters
Trial Evidence
[1] In accordance with the pre-trial conference report in this matter, the parties agreed to adduce their respective evidence-in-chief by way of affidavits; however, they did not have their witnesses swear affidavits specifically prepared for trial. Instead, the parties relied on the affidavits that were filed on the injunction motion heard by Fitzpatrick J. on November 23, 2021. The cross-examinations at trial were on those affidavits.
[2] In addition, the out-of-court cross-examinations conducted on November 10, 2021 and November 11, 2021 stood in the place of examinations for discovery and the resultant transcripts were available for use accordingly.
Materials Filed
[3] At the core of every aspect of effective advocacy is counsel’s key role in assisting the court in the adjudicative process. In properly fulfilling that role, it is incumbent on counsel to ensure that their presentations of the evidence, the law and their arguments are clear, focussed, organized, fair and accurate, so that justice can be administered in a timely and efficient manner.
[4] Unfortunately, the presentations of evidence, law and argument in the case-at-bar fell far short of the mark. Instead of directing their efforts to marshalling evidence to discharge the applicable burdens of proof, the parties obsessively focussed on petty and inconsequential battles and, thereby, lost the plot.
[5] A significant majority of the pleadings and of the affidavit materials filed are prolix, discursive, unduly repetitive and replete with irrelevant and inadmissible opinion and argument. Those materials fail to clearly set out the issues in dispute, the parties’ respective theories of the case or their evidence and, as a result, are of very little assistance.
[6] Emblematic of this problem is the “Statement of Defence, Statement of Defence to the Counter Claim, and Counterclaim on Behalf of Karnail Sandhar, Surjit Kaur Sandhar and Jorawar Singh Sandhar”, which comprises 59 pages and 297 paragraphs of logorrhea.
[7] To make matters worse, the parties’ respective closing arguments, which were delivered in writing, were of little assistance in sorting out the tangled mess generated by their pleadings and their proffered evidence. Instead, the vast majority of the written argument appears to have been cobbled together with little, if any, care or deliberation.
[8] That entire mess was simply lobbed onto the dais for the court to detangle and attempt to make sense of.
References to Parties in These Reasons for Decision
[9] For the sake of efficiency and clarity, when I refer to each of the individual parties in these reasons for decision, I will use their given names only, being “Sukhbender”, “Surjit”, “Jorawar” and “Karnail”. In doing so, I intend no disrespect whatsoever and it is my sincere hope that none of those parties feels disrespected in any way or takes exception to being referred to by his or her given name only.
Overview
[10] This action involves competing claims of beneficial ownership respecting the property municipally known as 862 Queensbridge Drive, Mississauga, Ontario (the “Subject Property”).
[11] All of the parties herein except the defendant, 2234886 Ontario Inc., (“233”) are members of the same family. Surjit and Karnail are spouses of each other. Sukhbender and Jorawar are two of Surjit’s and Karnail’s three sons. Surinderpal Kaur Sandhar (“Surinderpal”), who is not a party to this action, is Sukhbender’s spouse.
[12] Sukhbender claims that he and Surinderpal are the only beneficial owners of the Subject Property. Surjit claims that she and Karnail are the only beneficial owners thereof. 233 claims that it is the legal and beneficial owner of the Subject Property, having purchased same on September 17, 2021.
[13] Following 233’s purchase of the Subject Property, Sukhbender obtained an interlocutory injunction enjoining 233 from evicting him or his family on the condition that he make without prejudice monthly payments to 233 in the amount of $4,000.
Facts
[14] The following facts are undisputed:
a) on July 7, 1982, Sukhbender executed a transfer respecting the Subject Property in favour of Surjit, to which transfer Surinderpal consented, but which was not registered on title;
b) the said transfer provided that the consideration therefor would be Surjit’s assumption of a mortgage in the amount of $42,900;
c) on July 16, 1982, Surjit took title to the Subject Property;
d) since 1982, all of Surjit, Karnail, Sukhbender, Surinderpal and Sukhbender’s and Surinderpal’s children have lived on and off at the Subject Property;
e) for a period of time between 1984 and 1991, the Subject Property was tenanted and none of the parties lived there;
f) there is no documentary evidence of any rent paid by the Subject Property’s tenants, in what amount(s) that rent was paid, to whom it was paid or where – as between the parties herein – that money ended up;
g) on December 10, 1999, Karnail sent a letter to Revenue Canada, which stated, among other things, the following:
I can not work. I am being supported by my son who is paying for my lodging and boarding;
h) on November 25, 2008, Karnail’s lawyer, Michael Woods, sent a letter to Karnail’s insolvency trustee, which stated, among other things, the following:
it was the intent of the family that the beneficial ownership of the Property would remain with the children;
i) sometime in 2021, Surjit and Karnail moved out of the Subject Property;
j) on July 16, 2021, Sukhbender registered a caution on title to the Subject Property (the “Caution”), which stated, among other things, the following:
despite the request by his son, Sandhar, Sukhbender Singh and his daughter in law, Sandhar, Surinder for more time to raise the money to meet the agreed upon sale price to a family member of $500,000.00 representing 50% of the fair market value of the property, as the applicant had been promised ownership of a 50% interest in the property at the time he transferred the property to his mother;
k) on September 17, 2021, Surjit, who was the sole legal titleholder at that time, sold the Subject property to 233;
l) none of the net proceeds of sale was paid to Sukhbender;
m) Manpreet Shah Singh (“Manpreet”) is the principal of 233;
n) Manpreet was the realtor who listed the Subject Property for sale in June 2021, but that listing agreement was mutually terminated and another realtor in the same brokerage took over the listing;
o) despite the change in the Subject Property’s ownership, Sukhbender and his family have continued to live at the Subject Property and, pursuant to the November 23, 2021 order of Fitzpatrick J.:
ii) 233 was, on an interlocutory basis, enjoined from evicting Sukhbender or his family, and
iii) Sukhbender was ordered to make monthly without prejudice payments to 233 in the amount of $4,000 (which he has been paying);
p) between July 16, 1982 (when Surjit took title) and September 17, 2021 (when 233 purchased), title to the Subject Property changed hands as follows:
i) July 16, 1982 – Surjit took title for an unspecified amount,
ii) August 15, 2001 – Surjit transferred title to herself and Karnail for an unspecified amount,
iii) December 1, 2009 – Surjit and Karnail transferred title to Sukhbender for an unspecified amount,
iv) July 6, 2011 – Sukhbender transferred title to Surjit for stated consideration of $50,000, and
v) September 17, 2021 – Surjit transferred title to 233 for stated consideration of $1,100,000;
q) other than for 233’s purchase of the Subject Property, there is no documentary evidence that any monies or other consideration changed hands respecting any of the above transfers of title or of any source(s) of funds for any applicable payments; and
r) between July 16, 1982 and September 17, 2021, the following charges/mortgages were registered on title to the Subject Property:
i) December 10, 1993 – in favour of The Mutual Trust Company for an unknown amount (discharged on January 11, 2002),
ii) February 22, 1995 – in favour of Herbinder Kaur Bhoarla in an unknown amount (discharged on February 4, 2004),
iii) August 15, 2001 – in favour of First Marathon Mortgage Corporation in an unknown amount (discharged on March 24, 2004), and
iv) February 4, 2004 – in favour of The Toronto-Dominion Bank in the amount of $150,000.
[15] Any and all other material facts are hotly disputed.
[16] Based on the evidence, I find that, despite the parties’ references in the pleadings, evidence and argument to Surjit and Surinderpal, the actual dispute in this matter is between Karnail and Sukhbender; father and son.
[17] Surjit’s involvement in this matter is solely as a proxy for Karnail’s claimed interest in the Subject Property and his dealings therewith. Surjit admitted in cross-examination that the content of her affidavit was based on information provided by Karnail and did not come from her. Her affidavit does not represent her words, but Karnail’s. In Surjit’s words, “I don’t know. I don’t take interest” in Karnail’s dealings.
[18] Surinderpal was never registered on title, has claimed no interest in the Subject Property, is not a party to this action, proffered no evidence and did not participate whatsoever in the litigation, including at trial.
[19] Sukhbender says that he – not Karnail – supplied the monies to purchase, maintain and carry the Subject Property and that he paid all applicable expenses. Sukhbender says that he has been taken advantage of by Karnail, who is a controlling and overbearing parent and has been living off the fruits of Sukhbender’s hard work, generosity and strong sense of filial duty.
[20] Karnail says that he – not Sukhbender – supplied the monies to purchase, maintain and carry the Subject Property. Karnail says that he has been taken advantage of by Sukhbender, who lacks ambition or drive, has repeatedly failed during his life and is an ungrateful son who wants Karnail to continue financially carrying him and his family.
[21] The evidence goes quickly downhill from there and culminates in wild, bizarre and uncorroborated allegations of criminal business practices, death threats, serious assaults and poisonings, none which has resulted in criminal charge or prosecution.
[22] However, what is most notable about the evidence herein is not what has been adduced, but, rather, what has not.
[23] There is no documentary evidence whatsoever respecting the various transfers of title to the Subject Property between the Sandhar family members during their ownership for 1982 until 2021. Other than one unregistered transfer document dated July 7, 1982, the only evidence adduced was in the form of documents that are registered on title and, as such, publicly available.
[24] There is no documentary evidence of what monies or consideration, if any, actually changed hands between the Sandhar family members respecting those various transfers of title.
[25] There is no documentary evidence respecting the source(s) of funds used to initially purchase the Subject Property or to make any payments related to the four mortgages registered on title during the family’s ownership of the Subject Property.
[26] There is no documentary evidence respecting the payment of the Subject Property’s maintenance, repair and carrying costs. While there is some, very minimal, documentation showing payments for two or three property tax instalments, there is no documentation evincing which family member (if any of them) made those or any other payments.
[27] There is no documentary evidence respecting the source(s) of funds used to pay the utilities consumed at the Subject Property. While there is a small handful of utilities and phone bills, there is no documentation showing if those bills were paid and, if so, by which family member (if any of them).
Issues
[28] The statement of claim and the defendants’ respective counterclaims all advance various and sundry claims for declaratory, injunctive, trust-based and fraudulent conveyance-based relief. There are also claims for damages in, among other things, defamation, slander of title, assault, administration of a noxious substance and trespass.
[29] Once again, the parties’ pleadings, like their affidavits and written argument, have been cobbled together with little, if any, care or deliberation.
[30] What this matter really boils down to is a determination of who – between Sukhbender and Karnail – was the beneficial owner of the Subject Property before 233 purchased it and whether 233’s purchase transaction should be set aside. That said, the remaining numerous claims, although subordinate and apparently advanced for purely tactical reasons, must also be addressed.
[31] Therefore, I find that the issues to be determined in this action are as follows:
a) Who was the beneficial owner of the Subject Property before September 17, 2021?
b) Should the transaction pursuant to which 233 purchased the Subject Property be set aside?
c) Is Sukhbender liable to Surjit, Jorawar or Karnail for any of slander of title, defamation, “the tort of economic interference or contractual interference”, trespass, vacant possession of the Subject Premises, assault, administration of a noxious substance and/or special damages?
d) Does 233 have any interest – by way of trust or otherwise – in the property purchased by Karnail from the sale proceeds of the Subject Property?
e) Are any of the defendants to 233’s counterclaim liable to 233 for any damages?
Parties’ Respective Positions
Sukhbender
[32] Sukhbender claims that he is, and has always been, the beneficial owner of the Subject Property and that Karnail and Surjit were living there through his generosity. He provided the funds to purchase the Subject Property, made all of the mortgage payments and paid all maintenance, carrying and utilities expenses.
[33] Respecting the various transfers of legal ownership back and forth between him and his parents, Sukhbender claims that he, as a faithful and dutiful son, was only following the instructions of his overbearing and controlling father. Notwithstanding this, says Sukhbender, the Subject Property was always beneficially his.
[34] According to Sukhbender, the sale of the Subject Property to 233 was a fraudulent scheme masterminded by his brother, Jorawar, who manipulated Surjit and Karnail in order to completely dispossess Sukhbender of his interest in the Subject Property.
Karnail and Surjit
[35] Karnail claims that, at all material times, he was the beneficial owner of the Subject Property and that Sukhbender and his family were living there through his generosity. It was Karnail who provided the funds to purchase the Subject Property, made all of the mortgage payments and paid all maintenance, carrying and utilities expenses.
[36] Respecting the various transfers of title back and forth, Karnail claims that they are inconsequential, as he was the beneficial owner of the Subject Property and could do with same as he wished. Therefore, says, Karnail, it is not for Sukhbender to seek any relief respecting the Subject Property or Karnail’s dealings therewith.
[37] According to Karnail, there was nothing fraudulent about the sale of the Subject Property to 233. He was of sound mind and sold the property of his own free will and without undue influence from Jorawar.
[38] Karnail also claims damages against Sukhbender for slander of title respecting the registration of the Caution, defamation respecting the contents of Sukhbender’s affidavits in this action, “the tort of economic interference or contractual interference” respecting his alleged inability to contract with a realtor and a “possible subsequent purchaser”, trespass and Sukhbender’s attempts to poison Karnail.
Jorawar
[39] Jorawar wholeheartedly adopts Karnail’s version of events and wholeheartedly denies Sukhbender’s
[40] In addition, Jorawar, who was never on title to the Subject Property and claims no interest therein, advances against Sukhbender the same claims as Karnail. Jorawar also claims damages against Sukhbender for the tort of assault.
233
[41] 233 argues that it lawfully purchased the Subject Property from the registered owner thereof and denies that its purchase was part of any fraudulent scheme.
[42] 233 denies that Sukhbender has established any legitimate claim to ownership of the Subject Property, but argues that, in any event, it was not aware of any such claim at the time that it purchased the Subject Property for good and valuable consideration.
[43] Therefore, its title is indefeasible and its purchase should not be set aside.
[44] 233 also, by counterclaim, asserts trust and proprietary claims against Karnail’s, Surjit’s and Jorawar’s property in Brantford and claims damages against Surjit and Sukhbender.
Decision
[45] For the reasons set out below, I find that Sukhbender and Karnail were equal beneficial owners of the Subject Property prior to 233’s purchase thereof and, as such, are each entitled to a one-half share of the net proceeds of sale. Furthermore, I find that Karnail and Surjit, at all material times, held and continue to hold Sukhbender’s one-half share as constructive trustees for him.
[46] I also find there to be no basis for the balance of Sukhbender’s claims or for Surjit’s, Karnail’s, Jorawar’s or 233’s counterclaims.
Applicable Law
[47] Sections 78(4) and (4.1) of the Land Titles Act, R.S.O. 1990, c. L.5, provide that
78 (4) When registered, an instrument shall be deemed to be embodied in the register and to be effective according to its nature and intent, and to create, transfer, charge or discharge, as the case requires, the land or estate or interest therein mentioned in the register.
(4.1) Subsection (4) does not apply to a fraudulent instrument that is registered on or after October 19, 2006.
[48] The protection afforded by s. 78(4) is only available to “bona fide purchasers for value without notice of an interest or claim that differs from what is shown on the register” (see: Martin v. 11037315 Canada Inc., 2022 ONCA 322, at para. 66).
[49] Section 2 of the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, provides that
2 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.
[50] A plaintiff challenging a transfer as a fraudulent conveyance must prove that the subject transfer falls within the express wording of s. 2 of the Fraudulent Conveyances Act (see: Midland Resources Holding Limited v. Bokserman, 2022 ONCA 73, at para. 11). The existence of one or more so-called “badges of fraud” can give rise to an inference that the subject transfer was made “with the intent to defeat, hinder, delay or defraud”, in which event, the burden shifts to the party defending the legitimacy of the transaction to adduce evidence of the absence of fraudulent intent (see: Bokserman, at para. 11).
[51] Where a gratuitous transfer (other than one between a parent and a minor child) is challenged, there arises a rebuttable presumption of resulting trust in favour of the transferor, which may be rebutted by evidence of the transferor’s actual intention to make a gift (see: Pecore v. Pecore, 2007 SCC 17, at paras. 24-25; Kerr v. Baranow, 2011 SCC 10, at paras. 18-20). The civil standard of proof applies to such rebuttal and requires clear, convincing and cogent evidence (see: MacIntyre v. Winter, 2021 ONCA 516, at para. 25).
[52] A successful claim in unjust enrichment requires the establishment of three elements: 1) an enrichment to the defendant; 2) a corresponding deprivation to the plaintiff; and 3) the absence of a juristic reason for the defendant’s enrichment and the plaintiff’s deprivation (see: Intact Insurance Company v. Zurich Insurance Company Ltd., 2022 ONCA 485, at para. 71). Remedies for unjust enrichment are restitutionary in nature and the first to be considered is always monetary (see: Kerr, at para. 47).
[53] Where a party seeks final injunctive relief, it must establish its legal rights in a final adjudication of the matter (see: 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, at para. 80). The test for interlocutory injunctions set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC) does not apply to claims for final injunctions; however, the court may consider some of the evidence relevant to that interlocutory test in determining whether to exercise its discretion in granting final injunctive relief (see: Adline, at para. 79).
Analysis
Main Action
[54] As outlined above, there is a troubling lack of any documentary evidence from any of the parties respecting the Subject Property.
[55] There is no documentary evidence showing who, between Sukhbender and Karnail, was the beneficial owner of the Subject Property and who, between them, supplied the monies used to purchase the Subject Property or to pay the mortgages, maintenance and carrying costs and other related expenses. There is also no documentary evidence of any money or other consideration ever changing hands between the family members respecting the various transfers of the Subject Property between 1982 (when the family purchased it) and 2021 (when 233 purchased it).
[56] In other words, the only evidence that addresses the determinative issues in this matter is Sukhbender’s and Karnail’s respective versions of the relevant events, which versions are diametrically opposed in virtually every possible way.
[57] To further complicate matters, both Karnail’s evidence and Sukhbender’s evidence raise serious credibility concerns, which concerns are exacerbated by the poor drafting of their respective affidavits. Between each person’s evidence, I am unable accept one over the other, as both are completely imbued with argument and self-serving rhetoric and are utterly lacking in independent or credible corroboration. The only corroboration comes by way of the other witnesses, but those witnesses’ evidence falls along partisan lines to one extreme or the other: either fully supportive of Karnail’s story or fully supportive of Sukhbender’s.
Payments of Costs and Expenses
[58] I find it utterly implausible that, during this family’s more than 39 years of ownership and occupation of the Subject Property, no one retained any documentation whatsoever – paper or electronic – that shows who paid for what. I also find troubling and incredible that the only explanation for this lack of documentation is the unoriginal and all too convenient response that payments were made in cash. Even were I to accept that explanation, there is nary a bank statement, receipt, withdrawal slip or any document whatsoever to show any source(s) of that cash.
[59] Therefore, again, I am effectively left with Sukhbender’s and Karnail’s respective and diametrically opposed versions of the relevant events respecting payment of the Subject Property’s various costs and expenses.
[60] I infer from the fact that the Subject Property appears to have not been the subject of power of sale or foreclosure proceedings that the mortgages were paid by someone. I infer from the fact that this family lived in the Subject Property – on and off – for over 39 years apparently without issue that its other carrying, repair and maintenance costs were paid by someone. However, again, there is no credible or reliable evidence as to who made what payments and, for whatever possible reason, whoever made those payments has failed to adduce any applicable documentary evidence.
[61] At the end of the piece, I am left with Sukhbender, on the one hand, and Karnail, on the other, each claiming to have paid all of these expenses, but having produced none of the documentation that would evince any such payments or who made them.
[62] In my view, given that either or both of Karnail and Sukhbender should have such documentation, their unexplained failure to adduce same is tantamount to a refusal to do so. In the circumstances, I may – and do – draw an adverse inference from the failure to call such important evidence (see: Woods v. Jackiewicz, 2020 ONCA 458, at para. 27). I draw adverse inferences against both Sukhbender’s and Karnail’s respective claims that they paid 100% of the Subject Property’s purchase price, mortgages, carrying costs, repair and maintenance expenses and utilities. The net result of those inferences is a finding that each of Karnail and Sukhbender equally contributed to the payments of those costs and expenses.
Beneficial Ownership
[63] In addition to the issue of who paid what, the evidence of who held beneficial ownership of the Subject Property is similarly murky and anemic. Once again, Karnail has one version of events, Sukhbender has a completely opposite version of events and the evidence of the other witnesses falls along partisan lines to one extreme or the other.
[64] However, on this issue at least, there is some documentary evidence that I find to be independent, credible and reliable: the parcel register for the Subject Property, Michael Woods’ November 25, 2008 letter to Karnail’s insolvency trustee and the Caution registered on July 16, 2021. The parcel register is a matter of public record and is acknowledged by all parties to be representative of the state of legal title for the Subject Property. The Woods letter and the Caution were prepared by Karnail’s lawyer and Sukhbender’s lawyer, respectively, and were proceeded with on Karnail’s and Sukhbender’s instructions.
[65] Based on this evidence, I find that it was Karnail’s and Sukhbender’s mutual understanding and intention that each hold a one-half beneficial ownership interest in the Subject Property. The Woods letter and the Caution are evidence of that mutual understanding and intention. The parcel register shows that Sukhbender and Karnail treated legal ownership of the Subject Property as an artificial construct that could be altered at will because of the underlying equal beneficial ownership between them.
Constructive Trust
[66] As outlined above, each of Sukhbender and Karnail was a one-half beneficial owner of the Subject Property. Despite this, following the September 17, 2021 sale thereof to 233, Karnail and Surjit retained the full amount of the net sale proceeds and paid none of it to Sukhbender.
[67] In retaining those sale proceeds, Karnail and Surjit were enriched in the extent of Sukhbender’s one-half share thereof, to the corresponding detriment of Sukhbender. Given Sukhbender’s one-half beneficial ownership, there is no juristic reason for that enrichment or detriment.
[68] I therefore find that Karnail and Surjit, at all material times, held and continue to hold one-half of the Subject Property’s net sale proceeds in constructive trust for the benefit of Sukhbender.
[69] Based upon the applicable trust ledger of Laith Hahn, the lawyer who acted for Surjit on the sale, the net proceeds realized from the sale of the Subject Property was $942,738.61. Karnail and Surjit are to forthwith pay to Sukhbender $471,369.30, which amount represents one-half of the net sale proceeds rounded down to the nearest cent.
Resulting Trust
[70] Given my findings above, I need not address Sukhbender’s claim in resulting trust.
[71] However, given the parties’ treatment of legal title to the Subject Property as an inconvenient afterthought and given the lack of evidenciary support, any success on this claim would be exceedingly unlikely.
No Basis to Set Aside 233’s Purchase
[72] I find that Sukhbender has failed to prove that there is a basis upon which to set aside 233’s purchase of the Subject Property, whether pursuant to the Fraudulent Conveyances Act or otherwise.
[73] Sukhbender has failed to adduce sufficient evidence to discharge his burden of proving that 233’s purchase of the Subject Property falls within s. 2 of the Fraudulent Conveyances Act or to support any applicable inference based on the existence of any badges of fraud.
[74] I do not accept Sukhbender’s argument that the $1,100,000 purchase price was “undervalue” and is therefore a badge of fraud. Beyond Sukhbender’s failure to adduce credible evidence of the alleged “undervalue”, the said purchase price aligns with his own expressed view that the Subject Property had a fair market value of $1,000,000 when he registered the Caution on July 16, 2021.
[75] I also do not accept Sukhbender’s argument that the subject transaction was a sham with no moneys actually paid. 233’s evidence, including the payment in certified funds of the purchase price, was neither contradicted nor challenged.
[76] I also find that 233 was a bona fide purchaser of the Subject Property for value without notice of an interest or claim that differs from what is shown on the parcel register.
[77] 233’s evidence was that it purchased the Subject Property for the purposes of investment (with the intention of “flipping” it), that it paid the agreed-upon purchase price of $1,100,000 and that it was not aware of any claim that the vendor, Surjit, was unable to deliver good title. This evidence was neither seriously disputed nor seriously challenged and was not contradicted by any evidence beyond Sukhbender’s argument, supposition and conjecture.
[78] I am mindful of the concerns expressed by Fitzpatrick J. at para. 28 of his endorsement dated November 23, 2021 about 233’s involvement in this matter. Indeed, the involvement of 233’s principal, Manpreet, in all of this may certainly raise an eyebrow or two. However, based on the evidence adduced at trial, including the cross-examinations, 233 was, at worst, an opportunist that took advantage of the apparent discord in the Sandhar family in order to profit financially. To be clear, I make no finding that 233 was such an opportunist, but, even if I were to do so, same would not, in my view, rise to the level of a determination that 233 was not a “bona fide purchaser for value without notice”.
[79] Accordingly, 233 is afforded the protection of s. 78(4) of the Land Titles Act and its title to the Subject Property is indefeasible.
[80] Therefore, Sukhbender’s claim to set aside 233’s purchase of the Subject Property must, and does, fail.
Final Injunctive Relief
[81] Given my finding above that there is no basis to set aside 233’s purchase of the Subject Property, there is also no basis for Sukhbender’s claim for final injunctive relief permitting him and his family to remain in the Subject Property. In addition, the interlocutory injunction ordered by Fitzpatrick J. should be vacated accordingly.
[82] Absent any applicable arrangement made between him and 233, Sukhbender no longer has any legal right to remain in possession of the Subject Property.
[83] Therefore, Sukhbender’s claim for injunctive relief must, and does, fail.
Counterclaim by Sandhar Defendants
[84] In addition to the poor drafting of their pleading, Surjit’s, Karnail’s and Jorawar’s counterclaim faces additional problems associated with standing and procedure.
[85] Although Karnail makes claims by way of counterclaim against Sukhbender, his pleading fails to advance a proper counterclaim, as he is not a named defendant in the main action. In addition, Jorawar does not claim entitlement to any interest in the Subject Property and, as such, has no standing to advance any claims related thereto. Furthermore, and in any event, Surjit, Karnail and Jorawar have failed to properly plead or prove the multitudinous claims set out in their 59-page pleading.
[86] Their claim for slander of title is neither properly pleaded nor supported by evidence (see: s. 17 of the Libel and Slander Act, R.S.O. 1190, c. L. 12). This claim must, and does, fail.
[87] Their claims pursuant to ss. 2, 5 and 8 of the Libel and Slander Act are also neither properly pleaded nor supported by any evidence (see: Grant v. Torstar Corp., 2009 SCC 61, at paras. 28-29). Further, and in any event, the doctrine of absolute privilege applies to and bars these claims (see: Amato v. Welsh, 2013 ONCA 258, at paras. 34 and 38). These claims also must, and do, fail.
[88] Respecting Surjit’s, Karnail’s and Jorawar’s claims for “the tort of economic interference or contractual interference”, no such claims are recognized at law. Presuming that the intended claims were in the torts of intentional interference with economic relations (see: Grand Financial Management Inc. v. Solemio Transportation Inc., 2016 ONCA 175, at para. 62) and inducing breach of contract (see: Correia v. Canac Kitchens, 2008 ONCA 506, at para. 99), Surjit, Karnail and Jorawar have failed to properly plead those claims or to adduce any evidence in support thereof. These claims also must, and do, fail.
[89] Surjit’s, Karnail’s and Jorawar’s other claims for special damages, vacant possession of the Subject Property and rectification of the title register have also not been properly pleaded or made out. In addition, the said defendants have no standing to obtain the claimed order for possession and the issue of title register rectification is moot. These claims also must, and do, fail.
[90] Respecting Surjit’s and Karnail’s claim that Sukhbender surreptitiously fed them rat poison (i.e., administration of a noxious substance), there is no evidence beyond Surjit’s and Karnail’s self-serving and baseless suppositions, assumptions and arguments to support this claim. Indeed, Karnail’s blood tests from the relevant time period showed no such noxious substance in his blood. This claim also must, and does, fail.
[91] Respecting Jorawar’s claim against Sukhbender in the tort of assault, his evidence demonstrates that he has misunderstood or misconstrued the applicable tort. Given his allegation that Sukhbender made actual physical contact with him, the relevant tort is battery, not assault (see: Barker v. Barker, 2022 ONCA 567, at para. 138). That said, whether his claim is in the tort of assault or in the tort of battery, Jorawar’s evidence, which is self-serving, uncorroborated and directly denied by Sukhbender, is insufficient to support any finding of liability. This claim also must, and does, fail.
[92] Surjit’s, Karnail’s and Jorawar’s counterclaim is therefore dismissed in its entirety.
Counterclaim by 233
[93] As outlined above, 233 has advanced by counterclaim various proprietary and monetary claims against Sukhbender, Karnail, Surjit and Jorawar. However, it has failed to plead any applicable causes of action or to adduce any evidence whatsoever in support of those claims. Those claims must, and do, fail.
[94] 233’s counterclaim is therefore dismissed in its entirety.
[95] In addition, 233 failed to advance a claim for exclusive possession of the Subject Property or any claim for occupation rent or other similar amounts. I therefore have no jurisdiction to grant any applicable orders and I decline to do so.
Disposition
[96] For the reasons outlined above, I make the following orders:
a) Sukhbender was, at all material times, a one-half beneficial owner of the Subject Property;
b) Karnail and Surjit, at all material times, held and continue to hold the amount of $471,369.30 as constructive trustees for Sukhbender;
c) Karnail and Surjit shall forthwith pay the said amount of $471,369.30 to Sukhbender;
d) Sukhbender’s claim is otherwise dismissed;
e) the interlocutory injunction of Fitzpatrick J. dated November 23, 2021 enjoining 233 from evicting Sukhbender and his family from the Subject Property is vacated;
f) the order of Fitzpatrick J. dated November 23, 2021 requiring Sukhbender to make monthly payments of $4,000.to 233 is continued until 233 has obtained vacant possession of the Subject Property from Sukhbender and his family;
g) the counterclaim of Surjit, Karnail and Jorawar is dismissed; and
h) the counterclaim of 233 is dismissed.
[97] Judgment to go accordingly.
Costs
[98] Given the divided success herein and the very concerning manner in which all of the parties have approached this litigation, I make no order as to costs, subject only to the existence of any operative offer(s) to settle.
[99] Should any party claim the existence of any such offer(s) and wish to claim costs accordingly, then written submissions (limited to two pages, plus offers to settle and bills of costs) shall be delivered to me through the Milton Administration Office as follows:
a) any party claiming costs by no later than 4:00 p.m. on January 6, 2023;
b) any party/parties responding to such claim(s) by no later than 4:00 p.m. on January 13, 2023; and
c) there shall be no reply.
C. Chang J.
Released: December 23, 2022
COURT FILE NO.: CV-21-2817-0000
DATE: 20221223
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sukhbender Singh Sandhar
Plaintiff
- and -
Surjit Kaur Sandhar, 2334886 Ontario Inc. and Jorawar Singh Sandhar
Defendants
AND BETWEEN:
2334886 Ontario Inc.
Plaintiff by Counterclaim
- and -
Karnail Sandhar, Surjit Kaur Sandhar, Jorawar Singh Sandhar and
Sukhbender Singh Sandhar
Defendants by Counterclaim
REASONS FOR DECISION
C. Chang J.
Released: December 23, 2022