Court File and Parties

Court File No. CV-21-00076932-0000 DATE: 2023-05-26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PALADINO EXCAVATING INC., CHARLES PALADINO, 1478672 ONTARIO INC., and PALADINO TRANSPORTATION INC., Plaintiffs - and - ALFREDO PALADINO, 1826269 ONTARIO INC. o/a PALCON EXCAVATING, JOSEPHINE KEMPA a.k.a. JOSEPHINE PALADINO and BANK OF MONTREAL, Defendants

AND RE: ALFREDO PALADINO, 1826269 ONTARIO INC. o/a PALCON EXCAVATING and JOSEPHINE KEMPA a.k.a. JOSEPHINE PALADINO, Plaintiffs by Counterclaim - and - PALADINO EXCAVTING INC., CHARLES PALADINO, PALADINO TRANSPORTATION INC. and 1478672 ONTARIO INC. Defendants by Counterclaim

BEFORE: The Honourable Mr Justice Sweeny, R.S.J.

COUNSEL: Katherine Chau, counsel for the plaintiffs/defendants by counterclaim, responding parties J. Suttner and Jennifer Bilas (student-at-law), counsel for the defendants/plaintiffs by counterclaim

HEARD: May 11, 2023

Endorsement

Introduction

[1] This action was commenced by the Plaintiff’s Statement of Claim dated February 1, 2023. This is a motion by the Defendant and Plaintiff by counterclaim, Alfredo Paladino (“Alfredo”), concerning the property at 8500 Chippewa Road East., Mount Hope (the “Property”). Title to the property is held in the name of Alfredo’s estranged father, Charles Paladino (“Charles”).

[2] Alfredo and his wife have lived in a house constructed on the Property for approximately twenty years. After a significant family argument on May 31, 2021, Charles commenced this action for an order removing Alfredo from the Property and damages for trespass. In response, Alfredo filed a counterclaim seeking, inter alia, an order that he is the owner of the Property. Charles then commenced an application at the Landlord and Tenant Board (“LTB” or “Board”) to evict Alfredo from the Property.

[3] Alfredo brings this motion seeking:

(1) An order granting leave to issue a certificate of pending litigation (“CPL”); (2) An order staying the LTB application; and (3) An order that Charles not interfere with Alfredo's use of the Property pending trial.

Should Leave to Issue a CPL be Granted?

[4] The test for leave to issue a CPL was set out in Rahbar v. Parvizi, 2022 ONSC 1104, by Sanfilippo J. at para. 20:

The parties did not dispute the governing two-part test. First, the Court must determine whether the Plaintiff has a triable claim to an interest in land. Second, the Court must consider all relevant factors between the parties, including whether damages would be a satisfactory remedy, and balance the interests of the parties in the exercise of discretion regarding whether to grant leave for the issuance of the CPL [citations omitted]

[5] Justice Sanfilippo further addressed the salient factors for the test at para. 23:

The factors that will guide a court’s assessment of whether to exercise its discretion to grant leave for the issuance of the CPL include the following: (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the certificate of pending litigation is or is not removed with or without security: 572383 Ontario Inc. v. Dhunna, [1987] O.J. No. 1073 (S.C.); Perruzza, at para. 20; Ma, at para. 35; Wang, at para. 11 (d); 2676547 Ontario Inc. v. Elle Mortgage Corporation, 2020 ONSC 4595, at para. 8.

(1) There is a Triable Interest in the Land

[6] The evidence is that a real estate agent found the Property for Alfredo, that Alfredo’s company made payments in the precise amount of the mortgage payments and latterly, an amount very close to the mortgage amount. He paid $42,933.43 to Charles on the sale of his home. The City of Hamilton building inspector said that Charles always referred to Alfredo as the owner when complaints were raised. The fact that Alfredo had financial problems is said to be the reason for this arrangement. On the day of the family argument, Charles acknowledged that the house was Alfredo’s.

[7] Alfredo asserts that he has an interest in the land on several grounds, including unjust enrichment and proprietary estoppel. It is abundantly clear that there is a triable issue regarding Alfredo’s interest in the land.

A Consideration of the Relevant Factors Favour Granting Leave

[8] The Property is unique. According to Alfredo, the real estate agent, Charles’s ex-wife, and his Aunt Ida, Alfredo chose this location for the family home. This also goes to the intention at the time the land was acquired. There is no willing purchaser now. There is no harm to Charles if the property is not sold now. He lives elsewhere. There is harm to Alfredo, as he will lose the home that he has been living in for years.

[9] Alfredo is granted leave to issue a CPL.

(2) Stay of the LTB Application

[10] Charles initially brought the action seeking to remove Alfredo from the property. After the claim was issued, he served a Notice under the Residential Tenancies Act, 2006, S.O. 2006, c. 17. Subsequently, Charles removed the request to remove Alfredo from his claim on consent.

[11] Clearly, there is an issue regarding whether a tenancy arrangement exists. Alfredo has a viable claim to an interest in the Property.

[12] I am not satisfied that this is a circumstance where I ought to exercise my discretion to stay the LTB application. The LTB has jurisdiction to determine the issues of whether a tenancy exists, and, if a tenancy does exist, whether s. 5 (f) of the Residential Tenancies Act, 2006 would apply. These matters are best left to the LTB. In any event, Alfredo is not precluded from seeking a stay of the LTB application before the Board itself.

(3) An Order that Charles not Interfere with Alfredo’s Use of the Property

[13] There are allegations that Charles has taken steps to interfere with Alfredo's use of the Property. I understand that Charles has returned to the Property on two occasions since May 31, 2021.

[14] I do not want there to be any future confrontations and conflicts until this matter is resolved. There is no reason for Charles to attend the Property.

[15] The test for injunctive relief is set out by Healey J. in General Motors of Canada Company v. Osita-Adubasim, 2023 ONSC 1723, at paras. 29, 30:

[29] The authority for this court to grant an interlocutory injunction is found in s. 101 of the Courts of Justice Act, which may be granted “where it appears to a judge of the court to be just or convenient to do so” and may include such terms as are considered just.

[30] The test for injunctive relief is well established. The test that the moving party must meet, as set out in R.J.R.-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334, is that: (a) There is a serious issue to be tried; (b) The moving party will suffer irreparable harm, which it cannot be adequately compensated by damages; and, (c) The balance of convenience favours the granting of the injunction.

[16] The evidence that I have already referred to establishes that there is a serious issue to be tried regarding the ownership of the Property.

[17] The purpose of this injunction is to prevent further conflict or interference with the use of the Property by Alfredo and his family. Damages will not be sufficient.

[18] The balance of convenience favours an injunction being granted. If granted, it will not affect Charles because he does not live there and has no reason to go on to the Property. If it is not granted, it could have a detrimental effect on Alfredo and his family by leading to confrontations. If there is some legitimate reason that Charles needs access to the Property, the parties may agree on the terms of his access and, if they cannot agree, they may seek a further order from the court.

[19] There will be an order that Charles shall not attend at the Property and shall not interfere with Alfredo’s use and enjoyment of the Property.

Costs

[20] Alfredo has been successful on this motion with respect to the CPL and injunction, but not with respect to any order staying the LTB application. He has had substantial success and is entitled to costs.

[21] I have received the cost outlines for both parties. Alfredo seeks costs of approximately $75,000 for fees and HST on a partial indemnity basis, and around $116,000 on a full indemnity basis. This is an extraordinary amount for this motion. Charles claimed costs of around $37,000 for fees and HST plus disbursements.

[22] I am not assessing costs but fixing them, considering the relevant factors in r. 57.01, including proportionality and the reasonable expectations of the parties. The moving party is entitled to his costs of the motion payable by Charles forthwith fixed in the amount of $48,000 all inclusive.

P.R. Sweeny R.S.J.