Court File and Parties

Court File No.: CV-15-540-006-00 Date: 2023-01-11 Ontario Superior Court of Justice

Between: ANIL PERSAUD, in his capacity as Litigation Administrator for the Estate of Rita Persaud, Plaintiff/Moving Party And: CHABIRAJ PERSAUD, Defendant/Responding Party

Counsel: Hershel Sahian and Peter W. Neufeld, for the Plaintiff/Moving Party Chabiraj Persaud, self-representing

Heard: November 3, 2022

Reasons for Judgment

Dietrich J.

[1] The central issue in the within action between the Litigation Administrator for the now late Rita Persaud (the “Deceased”) and the Deceased’s son Chabiraj Persaud (“Chabiraj”), a realtor, was the ownership of a residential property at 35 Hullmar Drive, in the City of Toronto, Ontario (the “Property”).[^1] The Deceased lived in the Property from 1994 until her death in 2019. registered Chabiraj was the registered owner of the Property.

[2] In the action, the Deceased sought a declaration that she was the beneficial owner of the Property. Chabiraj asserted that he was both the legal and the beneficial owner of the Property.

[3] The Deceased died on June 4, 2019. She was survived by her six children: Chabiraj, Mohini, Kavita, Girga Gyanchandra Persaud (“Girga”), Chandrakala Ramkissoon, and Anil Laxmichandra Persaud (“Anil”). On October 17, 2019, Anil was appointed as Litigation Administrator by order of Conway J.

[4] In the midst of the trial, the Litigation Administrator and Chabiraj settled the action. They entered into a Settlement Agreement, dated November 15, 2019, in which the parties acknowledged that the Settlement Agreement would be treated in all respects as an Ontario contract. The Settlement Agreement was accompanied by a Full and Final Mutual Release of even date.

[5] Shortly after the Settlement Agreement was signed, on November 26, 2019, Mohini and Girga, commenced separate, but similar derivative applications against the Estate. In each, the applicant seeks an order removing the Litigation Administrator, an order declaring the Deceased’s last will and testament, dated April 2, 2019, invalid, and an order preserving the Property, among other relief. The Litigation Administrator has delivered a notice of appearance in each of these applications. These two applications were scheduled to be heard on August 18, 2022, one after the other, for a full day. Neither applicant proceeded with her or his application on that day. The applications have not been rescheduled.

[6] Pursuant to the terms of the Settlement Agreement, among other things, Chabiraj was required to list the Property for sale in a commercially reasonable manner. He was also barred from further encumbering the Property, pledging it as security, or increasing the amount owing on any existing charges on the Property as of the date of the Settlement Agreement.

[7] On or about February 14, 2020, the Property was sold, above the listing price, for $712,000. By order of McEwen J., dated May 27, 2021, the net proceeds of sale were transferred to Hope Law Office to be held in trust.

[8] The Litigation Administrator moves for an order pursuant to r. 49.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) enforcing the Settlement Agreement, which he alleges Chabiraj has breached, and an order that Chabiraj pay to the Litigation Administrator $304,819.68, representing proceeds that the Litigation Administrator asserts the Deceased’s estate (the “Estate”) would have received on the sale of the Property, but for Chabiraj’s breaches of the Settlement Agreement. In addition, the Litigation Administrator seeks injunctive relief or a restraining/freezing order, or both, against Chabiraj, among other relief.

[9] For the reasons that follow, I find that Chabiraj has breached the Settlement Agreement and is liable to the Estate for damages arising from the breaches.

Positions of the Parties

[10] The Litigation Administrator submits that Chabiraj breached the terms of the Settlement Agreement in the following ways:

a. between December 3, 2019 and December 31, 2019, after the Settlement Agreement had been executed, he placed a new mortgage and a line of credit on the Property, increased the existing line of credit and paid out another line of credit from the proceeds of sale, which had not been secured against the Property (for a total of $220,578.48);

b. he paid the realtor engaged to sell the Property a commercially unreasonable commission of six per cent as opposed to a commercially reasonable, and then standard rate of, four per cent; and

c. he pledged the Property as security for various promissory notes in consideration of a $68,150 loan from his son, Sanjay Persaud.

[11] Further, the Litigation Administrator submits that Chabiraj refused to be cross-examined on his responding record in breach of Kimmel J.’s endorsement dated January 19, 2022, and thus deprived the Litigation Administrator of information, including documentary evidence, that could have been useful in his proof of Chabiraj’s alleged breach of the Settlement Agreement.

[12] Chabiraj submits that, at the time the Settlement Agreement was reached, the only document made available to the parties regarding the mortgage on the Property was the charge, registered as instrument AT24369709 in the Land Registry Office on October 24, 2013 (the “Charge”). The principal amount of the Charge shown on the document was $500,000. Therefore, Chabiraj asserts that, under the Settlement Agreement, he was only prohibited from encumbering the Property in an amount that exceeded the $500,000.

[13] Chabiraj further submits that he has not breached the Settlement Agreement by agreeing to a commission rate of six per cent, which he submits was not set by him, but by the listing agent, and it was commercially reasonable.

Issue

[14] The principal issue in this matter is whether Chabiraj is in breach of the Settlement Agreement and, if so, what damages flow from that breach.

Background Facts

[15] In the Settlement Agreement, Chabiraj agreed to the following terms:

a. He would cause the Property to be listed for sale in a commercially reasonable manner consistent with the recommendations of a licensed, independent real estate agent taking into consideration an existing appraisal (paragraph 3).

b. He would, in a commercially reasonable manner, retain legal counsel regarding the sale of the Property, who would remit from the gross amount of the proceeds of sale any real estate commissions regarding the sale; taxes, utilities; reasonable legal fees; and payment to discharge the Charge (paragraph 5).

c. Prior to the sale of the Property, he “shall not further encumber the Property, pledge the Property as security, or increase the amount owing on the Charge as of November 15, 2019” (paragraph 6).

d. The net proceeds of sale would be paid to the Litigation Administrator, in trust, for the Estate (paragraph 7).

e. He had read and understood the Settlement Agreement, and he had obtained or had had the opportunity to obtain independent legal advice in connection with all of the matters that are the subject of the Settlement Agreement (paragraph 14).

[16] Regarding the applications brought by each of Mohini and Girga, the only respondent is the Estate. Mohini has indicated that she plans to add Anil and Chabiraj as respondents to her application, but she has not sought leave to do so.

[17] Though Mohini and Girga attempted to block the sale of the Property, on January 13, 2020, McEwen J. ordered that the Property be sold and that the proceeds be held by Chabiraj’s real estate lawyer, Kevin Hope, of Hope Law Office. McEwen J. also ordered that the proceeds were not to be dissipated or otherwise dealt with pending further order of the Court.

[18] Notwithstanding McEwen J.’s order, in a continued effort to prevent the sale of the Property, Mohini registered a caution on the title to the Property. An urgent motion was brought by the Litigation Administrator and Chabiraj, and on February 11, 2020, McEwen J. ordered the withdrawal of the caution. The Property was sold on February 14, 2020.

[19] According to the Settlement Agreement, and as part of the sale transaction, Chabiraj was obligated to discharge the Charge.

[20] On March 5, 2020, Chabiraj’s litigation counsel, Kalen Brady, who had advised Chabiraj regarding the Settlement Agreement, provided counsel to the Litigation Administrator, Hershel Sahian, with the Statement of Adjustments. The Statement confirmed that the Property was sold for $712,000 and that proceeds of $684,089.21 had been transferred to Hope Law Office. Mr. Brady also advised Mr. Sahian that Hope Law Office was holding $122,191.35 in trust from the proceeds of sale.

[21] Recognizing a discrepancy between the amount being held by Hope Law Office and the expected net proceeds of sale, Mr. Sahian wrote to Mr. Brady immediately to advise that there ought to have been more proceeds in trust after the discharge of the Charge. Mr. Sahian requested the trust statement, the commissions statement, and any further documentation relating to the sale of the Property.

[22] Mr. Brady provided a trust ledger dated February 15, 2020, which appears to be the same ledger as the one found in Mr. Hope’s file (the “Trust Ledger”).

[23] Chabiraj and Mr. Hope did not voluntarily produce Mr. Hope’s file and documents relating to the sale of the Property. The file and documents were only produced following motions brought by the Litigation Administrator and the orders of McEwen J., myself, and Gilmore J., dated January 11, 2021, August 30, 2021, and January 4, 2022, respectively.

[24] On May 27, 2021, McEwen J. ordered the transfer of the net proceeds of sale from Mr. Hope’s trust account to Dale Streiman LLP, in trust. On October 12, 2021, Dale Streiman LLP confirmed that it had received from Mr. Hope $122,191.35, in trust.

[25] By November 1, 2021, Mr. Sahian had access to Mr. Hope’s file, and by January 12, 2022, Mr. Sahian had received production from the Royal Bank Canada (“RBC”), which had made loans to Chabiraj, and secured those loans against the Property by the Charge.

[26] The RBC production included the following:

a. An Annual Mortgage Statement for Mortgage No. 6090799-003 for each of the period January 1, 2019 to December 31, 2019, and the period January 1, 2020 to February 8, 2020. The quantum of this mortgage as reflected on the RBC Statement is $311,821.62. Chabiraj placed this mortgage on the Property in 2013 while the Deceased was alive (“Mortgage No. 1”).

b. An Annual Mortgage Statement for Mortgage No. 42742497-001 for each of the period December 3, 2019 to December 31, 2019, and the period January 1, 2020 to February 18, 2020, and also a Payout Statement dated February 5, 2020. The quantum of this mortgage as reflected on the RBC Statement is $149,625.55 (“Mortgage No. 2”). The Litigation Administrator asserts that Mortgage No. 2 was a new mortgage, negotiated by Chabiraj after the Settlement Agreement. Chabiraj denies that this was the case.

c. A History Report for Line of Credit No. 76134253 for the period January 2, 2020 to February 18, 2020. The quantum of this line of credit, as reflected on the RBC Statement, is $40,066.95 (the “2020 Line of Credit”).

[27] By order of Kimmel J., Chabiraj was required to attend for cross-examination on his affidavit relating to this motion no later than March 25, 2022.

[28] Mr. Sahian confirmed that Chabiraj was available on March 24, 2022 to be examined, and he sent Chabiraj the time and videoconference co-ordinates for the cross-examination. Chabiraj did not attend.

[29] At Chabiraj’s request, Mr. Sahian arranged a second cross-examination on March 25, 2022. However, after facing a barrage of questions from Mohini, who attempted to intervene in the examination, without any right to examine, Chabiraj left the cross-examination abruptly, before Mr. Sahian could begin to examine him. Chabiraj claimed to be having technical difficulties with his video function.

Law

[30] Pursuant to r. 49.09 of the Rules and pursuant to the common law, the Court has jurisdiction to enforce settlements: Donaghy v. Scotia Capital Inc./Scotia Capitaux Inc., 2009 ONCA 40, [2009] 93 O.R. (3d) 776 (C.A.). The enforcement of settlements is consistent with the Court’s policy of encouraging settlement. Parties who reach settlements should typically be held to their bargains: Bogue v. Bogue (1999), 46 O.R. (3d) 1 (C.A.), at para. 15.

[31] A settlement agreement is a contract, which is subject to the general rules regarding offer and acceptance. Therefore, a concluded settlement requires both a mutual intention to create a legally binding contract and an agreement on all essential terms of the settlement. Even when there is no ambiguity in the terms of an agreement, interpretation of the agreement can involve an assessment of surrounding circumstances, or the factual matrix, known to the parties as the time of the negotiation: Daehn v. Lalonde, 2021 ONSC 301, 64 E.T.R. (4th) 291, at para. 16.

[32] On a motion to enforce a settlement, the onus is on the moving party to show that there is no genuine issue about the existence of an agreement to settle: Hashemi-Sabet Estate v. Oak Ridges Pharmasave Inc., 2018 ONCA 839.

[33] The moving party must also show that there is reason to enforce the settlement: Srebot v. Srebot Farms Ltd., 2013 ONCA 84, at para. 6.

Analysis

[34] The Litigation Administrator submits that there can be no dispute that a settlement agreement was reached between Chabiraj and himself, and Chabiraj breached the settlement.

[35] At paragraph 6 of the Settlement Agreement, Chabiraj agreed that, prior to the sale of the Property, he would “not further encumber the Property, pledge the Property as security, or increase the amount owing on the Charge as of November 15, 2019.” Chabiraj does not dispute that he agreed to these terms. The Litigation Administrator asserts that Chabiraj breached the Settlement Agreement at least three times.

The Mortgage No. 1 Breach

[36] The Litigation Administrator asserts that when the Settlement Agreement was executed, it was contemplated that Mortgage No. 1, would be discharged using proceeds from the sale of the Property. The RBC documents show Mortgage No. 1 as having a principal balance as of January 1, 2019 of $326,377.12, and a principal balance as of December 31, 2019 of $311,821.62. The parties are agreed that Mortgage No. 1 predated the Settlement Agreement.

[37] However, the Litigation Administrator asserts that Chabiraj breached paragraph 6 of the Settlement Agreement between December 3, 2019 and December 31, 2019 when he withdrew $150,440.41 from Mortgage No. 2. The February 5, 2020 Payout Statement confirms that the RBC required that this $150,440.41 be paid out of the proceeds before the Charge could be discharged. The RBC included this amount as part of the $504,881.63 to be paid out to the RBC upon the closing of the sale of the Property. The $504,881.63 amount was comprised of the amounts owing on Mortgage No. 1, Mortgage No. 2, and an amount owing on a $40,000 line of credit, being the 2020 Line of Credit. The Trust Ledger confirms that $505,881.63 was deducted from the proceeds of sale of the Property.

[38] The Litigation Administrator asserts that Mortgage No. 2 was a new mortgage, taken out by Chabiraj after the date of the Settlement Agreement. In support of this argument, he submits that, based on the RBC Annual Mortgage Statement, addressed to Chabiraj at the Property, the principal balance as of December 3, 2019 was “$0.00”, and the “Mortgage Renewal Date was December 3, 2024. These two dates support the Litigation Administrator’s theory that this new mortgage, Mortgage No. 2, had a five-year term commencing December 3, 2019 and ending December 3, 2024. The same statement shows $150,000 as “Increases to Principal (new funds you requested)”; $374.45 as “principal payments”; and a balance on December 31, 2019 of $149,625.55.

[39] The RBC Annual Mortgage Statement for the following period (January 1, 2020 to February 18, 2020), also addressed to Chabiraj at the Property, shows that the “Principal Payments” in that period totalled $149,625.55, leaving a Principal Balance as of February 18, 2020 of $0.00. Based on these two RBC Annual Mortgage Statements, it is apparent that the RBC advanced principal of $150,000 to Chabiraj, secured by Mortgage No. 2 over the Property. These funds were advanced to Chabiraj after the date of the Settlement Agreement.

[40] Chabiraj disputes that Mortgage No. 2 was a new mortgage. He asserts that this “mortgage” was part of Mortgage No. 1 but was a line of credit component taken out at the same time as Mortgage No. 1. He further asserts that both Mortgage No. 1 and this mortgage/line of credit facility were in existence at the time the parties negotiated the Settlement Agreement, and that the Litigation Administrator had a copy of the Charge at that time, which showed a principal amount of “$500,000.” Chabiraj asserts that he did not breach the Settlement Agreement regarding Mortgage No. 2 because he did not “further encumber” the Property after the date of the Settlement Agreement. He contends that the additional borrowing of $150,000 in December 2019 and January 2020 was included in the $500,000 amount on the Charge, the Charge was available to the parties, and relied on by them as the amount owing, at the time they negotiated the Settlement Agreement. The Litigation Administrator disagrees and asserts that the evidentiary record clearly shows that Chabiraj increased the amount owing on the Charge as of November 15, 2019 contrary to the terms of the Settlement Agreement.

[41] I find that Chabiraj’s argument is flawed. The December 31, 2019 RBC Annual Mortgage Statement for Mortgage No. 2 confirms that the December 3, 2019 opening balance was $0.00, and that between December 3, 2019 and December 31, 2019, that is, after the Settlement Agreement was executed, Chabiraj withdrew $150,440.41 from what was either a new line of credit or an existing line of credit, which had not been used prior to the Settlement Agreement. Because Chabiraj had negotiated Mortgage No. 1 and Mortgage No. 2 with the RBC, and the Annual Mortgage Statements were being sent to him, he was well positioned to produce the documentation to prove whether Mortgage No. 2 was a line of credit that was part of the original borrowing that resulted in the Charge, or a new line of credit, or something else. Chabiraj provided no such documentary evidence. Regardless, even if both Mortgage No. 1 and Mortgage No. 2 were encumbrances in existence at the time of the Settlement Agreement, Chabiraj nonetheless breached the Settlement Agreement by increasing the amount owing on the Charge as of November 15, 2019. Chabiraj’s request to the RBC for $150,000 in additional principal in December 2019 and January 2020 was a clear breach of paragraph 6 of the Settlement Agreement. The $150,440.41 withdrawal is reflected in the RBC’s February 5, 2020 Payout Statement, which was also part of Mr. Hope’s file.

[42] I accept the Litigation Administrator’s argument that the $500,000 of principal referred to in the Charge does not reflect the actual sum advanced. The Charge is the instrument creating the security agreement for securing the debt or obligation. The Charge does not evidence the sum of the debt obligation. Rather, it represents the security registered by the lender against the property. There is nothing in the provisions of the Charge to suggest that the $500,000 represents the obligation owed. A charge is security against the property. The quantum of the debt will fluctuate depending on amounts advanced and amounts repaid. In this case, the Charge included the three instruments that represent the security (Mortgage No. 1, Mortgage No. 2 and the 2020 Line of Credit). Chabiraj has adduced no documentary evidence to show that Mortgage No. 2 and the 2020 Line of Credit were in existence prior to the settlement.

[43] The documentary evidence before the Court demonstrates that Chabiraj withdrew $150,440.41 against the equity in the Property, in respect of Mortgage No. 2, after the Settlement Agreement was signed, and the RBC demanded and received these funds out of the proceeds of sale of the Property before it would discharge the Charge. Chabiraj is therefore liable for this breach of the Settlement Agreement and liable to the Litigation Administrator for the damages arising from this breach.

The 2020 Line of Credit Breach

[44] The RBC’s Payout Statement dated February 5, 2020 includes a History Report for a line of credit No. 76134253-001, which is the 2020 Line of Credit. It was secured against the Property. The Payout Statement shows that on January 21, 2020, February 3, 2020, and February 5, 2020, that is, after the date of the Settlement Agreement, Chabiraj withdrew a combined total of $40,066.95. The RBC’s History Report shows that the 2020 Line of Credit was opened on “012120”, being January 21, 2020. The History Report also shows that Chabiraj made a withdrawal on January 27, 2020 ($38,500), and by February 3, 2020, the withdrawn amount had increased to $40,000. On February 5, 2020, an $18 fee was applied, and interest charges brought the total amount owing to $40,066.95.

[45] The opening of the 2020 Line of Credit is a further encumbrance of the Property, which Chabiraj was not authorized by the Litigation Administrator, any other person, or this Court to make.

[46] Chabiraj has no explanation for the $40,000 Line of Credit. It is not addressed in his responding materials, and he did not address it in argument. Chabiraj is, therefore, also liable for this breach of the Settlement Agreement and liable to the Litigation Administrator for damages arising from this breach.

Improper Withdrawal of Proceeds

[47] Mr. Hope’s February 15, 2020 Trust Ledger Statement indicates that $30,071.12 was deducted from the proceeds of sale of the Property in respect of another RBC line of credit. However, the RBC’s Payout Statement makes no reference to $30,071.12 owing in respect of any such line of credit secured by the Property. The RBC Payout Statement only refers to the amount of $504,306.47 owing to discharge the RBC’s mortgage on the Property.

[48] The Litigation Administrator submits that since the RBC made no reference to this line of credit in relation to the discharge of its security on the Property, this amount likely reflects an unsecured line of credit obtained by Chabiraj or a line of credit secured by another property. Chabiraj has proffered no evidence regarding this line of credit. There is no term in the Settlement Agreement that would allow for a deduction of the amount owing on this line of credit from the proceeds of sale. The production from the RBC was limited to charges related to the Property. The Litigation Administrator submits that he did not authorize Chabiraj’s withdrawal of $30,071.12 from the proceeds of sale to pay an amount to the RBC that was not required to discharge the RBC’s security respecting the Property. Chabiraj offered no cogent explanation for this additional payment to the RBC, or for increasing the amount of the RBC’s charge in respect of the Property. This additional, unauthorized deduction of funds, as directed by Chabiraj, is also a breach of the Settlement Agreement for which he is liable for damages.

Promissory Notes

[49] Also included in Mr. Hope’s file was evidence of promissory notes issued by Chabiraj to his son Sanjay Persaud, which total $68,150. The promissory notes are dated February 10, 2014 (for $28,250); June 25, 2016 (for $11,900); and September 24, 2019 (for $28,000), respectively. Two of these notes were made while the litigation involving the Property was ongoing. All of these notes refer to the fact that they are secured by the Property. However, there is no indication that any document was ever registered to give effect to this security. There is no charge or caution on the title to the Property regarding these notes. Based on the record, it is impossible to know what actual security, if any, was given by Chabiraj to the lender, Sanjay Persaud. Because Chabiraj declined to be examined, the Litigation Administrator was not able to discover relevant information regarding these notes.

[50] The Litigation Administrator submits that an inference should be drawn that the promissory notes are related to the Property transaction because of the references made to these promissory notes in Mr. Hope’s file relating to the Property. He further submits that Chabiraj has failed to show that he has not paid the Promissory Notes from either the proceeds of sale or the encumbrances on the Property.

[51] Chabiraj’s sworn evidence is that the promissory notes were not included in any of the payouts and were not listed on the Statement of Adjustments. However, Chabiraj denied the Litigation Administrator an opportunity to test this evidence. Chabiraj argued that he has not repaid his son, but he adduced no sworn evidence in support of this submission either from himself or his son.

[52] While Chabiraj ought to have adduced evidence in support of his position, I find that the record does not allow me to draw an inference that Chabiraj used proceeds from the sale of the Property to pay the amounts owed on the promissory notes. Further, Mr. Hope’s records do not evidence that the promissory notes were repaid as part of the transaction regarding the Property. There are no other records before the Court.

Commercially Unreasonable Commission

[53] The Litigation Administrator submits that the commission that Chabiraj paid to Royal LePage, the agent engaged to sell the Property, was unreasonably high. Chabiraj agreed to pay Royal LePage a six per cent commission, which amounted to $42,720 plus HST. In doing so, the Litigation Administrator submits that Chabiraj breached the term of the Settlement Agreement that required him to have the Property listed for sale in a commercially reasonable manner. The Litigation Administrator submits that the market rate for real estate commissions at the time of the sale was four per cent. Had the four per cent rate been paid, the Estate would have realized an additional $14,240 plus HST.

[54] Chabiraj deposed that the Litigation Administrator reviewed the Agreement of Purchase and Sale and did not object to the rate of commission to be paid.

[55] No independent or expert evidence regarding the market rate for real estate commissions at the time of the sale of the Property was adduced. In the absence of any reliable independent evidence on the market rate of real estate commissions at the time of the sale of the Property, and in the absence of any evidence as to whether there were any issues regarding the Property that would have influenced the rate of commission to be paid, I cannot conclude that the rate that Chabiraj agreed to pay Royal LePage was commercially unreasonable. Accordingly, I decline to find that Chabiraj breached the term of the Settlement Agreement by agreeing to pay Royal LePage a commission of six per cent.

Injunctive Relief and Freezing Order

[56] The injunctive relief sought by the Litigation Administrator pursuant to s. 101 and s. 104(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and r. 40.01 of the Rules is a type of extraordinary and interlocutory relief that prevents a party from removing or dissipating property or assets in a given jurisdiction pending the outcome of a legal proceeding. Based on the evidentiary record, and the submissions of counsel, I am not persuaded that such relief is appropriate in this case involving the enforcement of a settlement agreement, where the damages for the breaches have been determined. Further, I am not persuaded that the Litigation Administrator has met the test for such relief. Accordingly, such relief is declined.

Disposition

[57] For the above-noted reasons, I declare that the Settlement Agreement ought to be enforced. I find that Chabiraj breached the terms of the Settlement Agreement by one or both of further encumbering the Property and increasing the amount owing on the Charge as of November 15, 2019, and by pledging the Property as security. Based on the evidentiary record, the RBC advanced the following amounts to Chabiraj following the Settlement Agreement, both of which were secured by the Property a) $150,440.41, including interest in respect of Mortgage No. 2; and b) $40,066.95, including interest in respect of the 2020 Line of Credit. Chabiraj further breached the Settlement Agreement by directing his solicitor to pay from the net proceeds of the Property $30,071.12 in respect of another RBC line of credit that does not appear to have been secured by the Property, though an amount outstanding on that line of credit was owing by Chabiraj to the RBC. The payment of that amount to the RBC was not authorized under the Settlement Agreement. The total damages arising from these breaches is $220,578.48, plus pre-judgment interest on this amount.

[58] These damages, plus interest, shall be paid by Chabiraj to the Litigation Administrator within 30 days of these Reasons.

[59] The Litigation Administrator seeks an order that the balance owing by him to his counsel for their services rendered to the date of the Settlement Agreement be paid out of the net proceeds of sale of the Property. I decline to make this order at this time. The Litigation Administrator has not made any submission to the Court with respect to his entitlement to have these costs paid out the net proceeds, the nature and extent of the services provided, or the quantum of such costs. This order is not being sought with the knowledge or consent of all the beneficiaries of the Estate, whose interests will be directly affected by such an order.

Costs

[60] The Litigation Administrator has been successful on his motion and is entitled to his costs. The Litigation Administrator has proposed that he make combined written submissions on his costs in this matter and his costs on a related motion for an order declaring Mohini Persaud to be a vexatious litigant in the proceedings relating to the Estate. The issues in the two motions are intertwined. The Litigation Administrator’s proposal is acceptable. My Reasons for Judgment on the motion declaring Mohini to be a vexatious litigant shall be released simultaneously with these Reasons for Judgment.

Released: January 11, 2023

Footnotes

[^1]: The original parties to the action were Rita Persaud, as plaintiff, and Chabiraj as defendant and plaintiff by counterclaim. Chabiraj also brought a third party claim against his sisters Mohini Singh (also known as Mohini Persaud) (“Mohini”) and Kavita Persaud (“Kavita”). The Settlement Agreement reached between the Litigation Administrator (who continued the action on behalf of the Deceased) and Chabiraj provides that the third party claim is discontinued as a result of the settlement of the action and the counterclaim. The remaining parties are the Litigation Administrator and Chabiraj, who are the signatories to the Settlement Agreement.