Court File and Parties
COURT FILE NO.: CV-13-00002155-00 DATE: 2023 09 26 SUPERIOR COURT OF JUSTICE – ONTARIO 7755 Hurontario Street, Brampton ON L6W 4T6
RE: THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA, Plaintiff
AND: ROYAL BANK OF CANADA GURRAPPADI, Siva SYKES, William RADHAKRISHAN, Usha WILSON, Sheila ATTORNEY GENERAL OF CANADA, CARVER, Phillip YANG, Albert, THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO, Defendants
BEFORE: Regional Superior Justice L. Ricchetti
COUNSEL: CALLAHAN, Peter M., for the Plaintiff Email: pcallahan@pmclaw.ca BOWDEN, Gregory W., for the Defendants (ROYAL BANK OF CANADA, GURRAPPADI, Siva, SYKES, William, RADHAKRISHAN, Usha, and WILSON, Sheila) Email: gwb@lbnfirm.com WATT, Karen, for the Defendants (ATTORNEY GENERAL OF CANADA, CARVER, Phillip, and YANG, Albert) Email: karen.watt@justice.gc.ca MANWANI, Niki, for an Interested Party (LD Law LLP) Email: nmanwani@kmlaw.ca
HEARD: September 26, 2023, by video conference
Endorsement
The Motion
[1] The Defendants represented by Mr. Bowden bring this motion to strike out the Plaintiff’s Statement of Claim.
[2] The grounds set out in the Notice of Motion are:
- The Plaintiff has failed to pay three separate cost awards.
- The Plaintiff’s executor, Mr. Mylabathula, rendered the estate penniless by conveying the estate’s only asset to himself, contrary to the Fraudulent Conveyances Act.
[3] Ms. Watt’s client supports the relief sought by Mr. Bowden.
Analysis
[4] The Plaintiff’s counsel, Mr. Callaghan, delivered a law firm trust cheque, the day before the hearing, for payment of the outstanding cost awards plus accrued interest. Mr. Callaghan submits that, because the outstanding cost awards are now paid, the motion should be dismissed.
[5] However, Mr. Bowden advised that Mr. Callaghan also sought a removal of the writs of execution (without paying for the costs of registration) and included a consent to the removal of the CPL. As such, there was a serious question whether, by accepting the payment, Mr. Bowden’s client was obliged to agree to the other two conditions.
[6] Mr. Callaghan assumed that the writs would or should be removed and his client wouldn’t have to pay the costs of registration. He is wrong. If his client wants the writs removed, then his client will have to pay the costs of the registering the writs. OR they simply remain on title and Mr. Bowden’s client will have no liability for any consequences arising therefrom.
[7] Mr. Callaghan denies that the removal of the CPL was a condition of accepting the payment for the cost orders. He says he just thought that Mr. Bowden would consent.
[8] Given this clear statement by Mr. Callaghan that the tendered payment for the outstanding cost awards are not conditional on either the removal of the writs (without payment) or the removal of the CPL, I need not decide this issue.
[9] The Plaintiff submits that there is no evidence of a fraudulent conveyance, it is not pleaded and, in any event, it requires a trial. I agree with Mr. Callaghan that I cannot make a determination on this issue in the context of this motion to strike.
[10] Mr. Bowden also refers to the failure to pass accounts. However, this issue is currently the subject of an appeal. Accordingly, I cannot rely on the failure to pass accounts to strike the Statement of Claim.
[11] Accordingly, I am left with no reasonable grounds or basis to strike the Statement of Claim. That of course assumes that the uncertified cheque (although it is from a trust account and failure of it to be honoured would be a very serious breach of Mr. Callaghan’s Law Society responsibilities).
[12] Motion is dismissed.
[13] The summary judgment motion will continue to be heard on October 11, 2023.
Costs
[14] Either party seeking costs, may provide, within 2 weeks, written submissions (max 3 pages) along with any offers and authorities.
[15] Either party may respond to a claim for costs, by providing, within 2 weeks thereafter, written submissions (max 3 pages) along with any offers and authorities.
[16] No reply without leave.
RSJ Ricchetti Released: September 26, 2023