Court File and Parties

COURT FILE NO.: CV-22-00000158-0000, CV-22-00000142-0000

SUPERIOR COURT OF JUSTICE

B E T W E E N:

BATAVIA DEVELOPMENTS INC. Plaintiff

• and -

SHAKOOR MOHSINI et al Defendant

R E A S O N S O N M O T I O N

REMOTELY BEFORE THE HONOURABLE JUSTICE J. MCCARTHY on June 12, 2023, for a LINDSAY, Ontario proceeding

APPEARANCES:

A. Dryer Counsel for the Plaintiff

S. Hossain Counsel for the Defendant

Reasons for Judgment

MONDAY, JUNE 12, 2023

MCCARTHY, J. (Orally):

The plaintiff, the respondent in the application and referred to here as simply the plaintiff, moves under Rule 6.01 for an order that the present action be consolidated and tried at the same time as the application. For its part the respondents, referred to here as simply the defendants, oppose that relief and seek a stay of the action while its application is allowed to proceed. In order for two actions to be heard together, “There is no requirement that the parties be identical...it is sufficient that there are common questions of law or fact,[or] the relief claimed arises out of the same transaction or occurrence.” See Segal & Partners Inc. v. Infolink Technologies Ltd..

[5] The following factors are relevant in determining whether an application should proceed as an action:

(1) Whether there are material facts in dispute.

(2) the presence of complex issues requiring expert evidence or weighing of evidence.

(3) Whether there was a need for exchange of pleadings and for discoveries.

(4) The importance and impact of the application and of the relief sought.

See Fort William Indian Band v. Canada at paragraph 5.

The dispute between the parties arises out of an agreement of purchase and sale, referred to as “the APS” and the failed real estate closing in respective of specified property within a subdivision, referred to as “the property”. Under the APS the plaintiff was the vendor and the defendant Mohsini was the purchaser. Following the failure of the APS to close in September 2022, the defendant Mohsini launched the application in which he sought inter alia, 1) Declarations of breach of the APS by the plaintiff. 2) An order for specific performance of the APS. 3) Damages for breach of contract and the duty of good faith and 4) Leave to register a CPL on title to the property. Six weeks later the plaintiff launched the present action naming Mohsini as well as other defendants and claiming inter alia, 1) A declaration that the defendant had defaulted on the deposit. 2) Damages for breach of contract. 3) Damages for slander of title and for punitive damages.

For the following reasons the plaintiff’s motion is allowed and the defendant’s motion is denied:

A) There is no doubt that the action and the application arise out of the same transaction namely the APS and the failed closing. The period in between those two events form part of the context of the dispute and is crucial to understanding and interpreting it.

B) There are questions of law and fact in common which include: 1) Whether Mohsini was in breach of the APS on closing date. 2) Whether the plaintiff properly tendered on closing date. 3) Whether Mohsini was entitled to register a caution on title to the property. 4) Whether Mohsini is entitled to specific performance. 5) Whether the property was unique. 6) Whether there are alternative properties available. 7) Whether damages would be an adequate remedy to compensate Mohsini for any breach of contract by the plaintiff. 8) Whether a failure to tender, acting in bad faith, or slandering title would disentitle Mohsini to an equitable remedy. (IE: a consideration of the clean hands doctrine in equity.) 9) Whether the plaintiff was in a position to convey title on the closing date. 10) Whether Mohsini had adequate financing in place on closing date. 11) Whether there was slander of title and any damages arising from that and 12) Entitlement to punitive damages if any.

C) Expert evidence may well be necessary on the issues of 1) Whether upon registration of the transfer for the sale of the property the property identification number would have been split allowing title to vest in Mohsini and 2) The availability of alternative properties as a defence to an order for specific performance.

D) Conflicting evidence will be introduced on multiple issues: adequacy of financing, subjective and objective uniqueness of the property, bad faith, the reasons for any delay by the purchaser, the interaction between Mohsini’s appraiser and the plaintiffs for the inspection of the property, and the motivations and beliefs underlying the placing of cautions on the property.

E) This case cannot be properly decided on a paper record because a judge will be required to make finding on material issues and facts in dispute and on evidence capable of giving rise to competing inferences.

F) To the extent that the terms of the agreement of the APS are ambiguous, interpretation of that contract may require viva voce evidence of the contemporaneous intentions of the parties and the surrounding circumstances at the time of its execution.

G) This in undoubtedly a case where affidavits of documents and examinations under oath are called for; this will help to clarify issues, obtain admissions, and enhance the evidentiary record in advance of trial. There would be no time savings in having the matter proceed as an application. A judge hearing the application would undoubtedly determine that there are genuine issues requiring a trial of multiple issues in any event.

H) I cannot accede to the course espoused by the defendant that the application be permitted to proceed while the action is stayed. This creates the likelihood of dual proceedings which would tie up scarce judicial resources and leave open the possibility of inconsistent findings on similar or identical issues. The interests of justice require that the issues and dispute between the parties which relate to the same transaction or series of transactions be adjudicated at one time by one judge with the entire evidentiary record before her on all issues.

For the foregoing reasons the motion of the plaintiff is allowed and that of the defendant denied. A stay of the plaintiff’s action is not appropriate or practical, rather the conversion of the application to an action is the preferrable course. There being an existing action in respect of the issues in dispute it makes sense that the application be consolidated in the following manner: the defendant shall file a statement of defence and counterclaim in the action. That pleading may assert all the claims, defences, relief, issues and declarations sought by the defendants in its application. That defence and counterclaim shall be served within 30 days of today’s date.

END OF REASONS FOR JUDGMENT

Certificate of Transcript

Form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act

I, Susan Jolicoeur (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of Batavia Developments Inc. v. Shakoor Mohsini et al in the Superior Court of Justice (Name of Case) (Name of Court) held at 440 Kent Street West, Lindsay, Ontario (Court Address) taken from Recording 4311_05_20230612_090829__10_MCCARTJOH.dcr, which has been certified in Form 1.

June 17, 2023 (Date)

(Signature of Authorized Person(s)) Susan Jolicoeur ACT ID 1664915893 905-987-3090 Susan.Jolicoeur@live.ca

Transcript ordered: June 12, 2023 Transcript completed: June 17, 2023 Transcript released by Justice: June 19, 2023 Ordering party notified: June 20, 2023