ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
RAGAVENDRAN SELVARAJ and PRIYANGA GOPAL
Applicants
– and –
TANIA PARVEN
Respondent
Counsel:
Iyengaran Rajkumar, for the Applicants
Tania Parven, Self-Represented
HEARD: October 23, 2023
papageorgiou j.
Overview
1In this case, the Plaintiffs claim that they sold a property, 84 Phillip Avenue, to the Defendant, Ms. Parven.
2The Plaintiffs received a $100,000 deposit but the transaction did not close.
3The Plaintiffs resold the Property at a price which was less than the original purchase price entered into by Ms. Parven.
4There is a motion for summary judgment scheduled for November 20, 2024.
Issue
5There are two issues as follows:
Are the plaintiff entitled to the release of the $100,000 deposit?; and
Are the plaintiff entitled to an order preserving the balance of the proceeds of sale of 71 Bertha Avenue after the mortgagee is paid out?
Decision
6For the reasons that follow I am ordering the release of the $100,000 and dismissing the motion for the preservation order.
Issue 1: Release of the $100,000 deposit
7Ms. Parven appeared in person. She was quite distressed and her main goal was to be removed from this litigation. She says that her husband had her execute the agreement of purchase and sale in respect of 84 Phillip Avenue and that it had nothing to do with her.
8What she wants is to be relieved of the hardship of this case. She says that her husband has advised her that this is her problem and that she has to deal with it as she sees fit.
9I explained fully to her what this would mean and she advised that she consented to the release of the $100,000 deposit held by the realtor. An order will go in that regard.
Issue 2: Preservation order in respect of proceeds of sale of 71 Bertha Avenue
10The Plaintiffs also seek an order that any proceeds of sale of a property municipally known as 71 Bertha Avenue which remain after the mortgagee is paid be held in trust.
11The mortgagee is exercising a power of sale.
12The Plaintiffs argued there was a risk of dissipation of these proceeds because another property, located at 16 Dallyn Crescent, was sold and the Plaintiffs were not notified of this sale. They say the circumstances of this sale are suspicious and raise concerns that Ms Parven’s properties are being dissipated. I am not certain that this evidence would suffice to establish a risk of dissipation.
13I need not consider this in any event because there are two obvious difficulties with the order sought:
14First, Ms. Parven is not the titled holder to 71 Bertha Avenue. Even if the Plaintiffs could establish a risk of dissipation, it is uncertain that the Plaintiffs would have any claim to such proceeds as they have not brought an action against Mr. Parven and he was not a party to the agreement of purchase and sale.
15Second, they did not serve Mr. Parven, the title holder, with this motion.
16As per rule 37.07(1) the notice of motion “shall” be served on any party or other person who will be affected by the order sought.
17Clearly, if Mr. Parven holds title to 71 Bertha Avenue, he is an interested party and should have been served.
18Although Ms Parven advised that she would consent to the preservation of any excess funds, the decision is not hers to make.
19Costs of this motion fixed at $4,500, but these cost shall not be payable until the conclusion of the proceeding.
20The parties shall use the link TorontoCaseConferenceAppoints@Ontario.ca to schedule a further case conference before me if they would like me to conduct a judicial mediation. The Plaintiffs’ lawyer shall advise Ms. Parven of the zoom link.
Papageorgiou J.
Released: October 23, 2023