Court File and Parties

COURT FILE NO.: CV-23-00710376-0000 DATE: 2024-05-24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NICOLE POSNER, Applicant – and – MAX OUANOUNOU also known as MAX WARNER, Respondent

BEFORE: Justice E.M. Morgan

COUNSEL: Brian Belmont, for the Applicant Max Warner, on his own behalf

HEARD: May 24, 2024

Endorsement

[1] The Applicant and the Respondent are brother and sister. They are two of five siblings and beneficiaries of the estate of their late mother, Lisa Ouanounou. The Applicant, on behalf of her siblings, seeks an Order granting her exclusive possession of the property at 42 Evanston Drive, Toronto (the “Property”), an Order terminating the Respondent’s occupancy of the Property, leave to issue a writ of possession for the Property, and other ancillary relief.

[2] The Applicant is the registered owner of the Property. She concedes that she holds title on behalf of all five children of Lisa Ouanounou, including herself and the Respondent, and has indicated that she intends to sell the Property on their collective behalf and divide the proceeds of sale equally among them. With that in mind, the Applicant has provided the Respondent with written notice of the need to vacate the Property. In fact, over the years the Applicant, sometimes with the assistance of one of her other siblings, has provided the Respondent with nearly 30 different notices to vacate.

[3] The Respondent has no dependents. He has been living rent-free in the Property for 20 years, along with his adult daughter. He has not paid property taxes, insurance, or, until April 2022 (and, I gather, only sporadically since that time), utilities for the Property. He does not dispute that the Property is owned by the five siblings together, but says that it was his late mother’s wish that he continue to live in the Property until it can be sold. He does not want to move out, and has resisted doing so. In one of his only written responses to the Applicant’s notices to vacate, he invited her to take “a long walk off a short pier.”

[4] The parties’ mother had taken out a reverse mortgage on the Property, which continues to incur interest and has the effect of reducing the equity. The mortgage will be paid off with the proceeds of sale when the Property is finally sold. The Applicant has indicated that the Respondent’s share of any proceeds of sale will have to be adjusted to account for the unpaid expenses and rent over the years, and that the more delay in selling the property the more the Respondent’s (along with hers and her other siblings’) interest diminishes.

[5] The Respondent claims to also require a set-off of expenses from any proceeds of sale. He states that over the years he has put nearly $390,000 worth of renovations into the Property. The Applicant seems to doubt that the Respondent has put any money into the Property, and the documentary record is silent on the issue. I indicated to both sides, and they both seemed to agree, that after my ruling on the possession of the Property there would likely have to be a referral to an Associate Justice for a mutual accounting of expenses and monies owing.

[6] The hearing of this Application has been adjourned a number of times at the Respondent’s request. At the last appearance on March 20, 2024, the Respondent advised Justice Brownstone that he was in the process of retaining counsel and expected to shortly complete certain financial transactions that would allow him to afford to do so.

[7] In her endorsement, Justice Brownstone reluctantly adjourned the hearing once again. In doing so, she ordered that the Respondent’s daughter be given notice of these proceedings. Her Honour also observed that the Respondent has been put on notice that his share of any eventual proceeds of sale will have to be adjusted as described above. She also ordered that the Respondent pay the Applicant costs thrown away in the amount of $3,500, payable within 30 days of that date.

[8] In addition to all of that, Justice Brownstone set a hearing for today’s date and ordered it to be peremptory to the Respondent. In her endorsement she stated, in no uncertain terms, that “[a] further adjournment will not be permitted.”

[9] Three days ago, on May 21, 2024, the Respondent sent an email to the Civil Motions office indicating that he requires a further adjournment. He stated that he is under medical care and that the pain medications which he has been prescribed are making him drowsy and that it is difficult for him to concentrate. This email was accompanied by a short note from a chiropractor, which was then followed up with a second note from the Respondent’s physician, stating that the Respondent is suffering from pain in the neck (with radicular pain down the right arm) and will be unable to attend the hearing.

[10] Counsel for the Applicant responded by emailing the court office saying that he opposes any further adjournment. He pointed out that Justice Brownstone’s endorsement was unambiguous in that regard. That same afternoon, the Respondent, showing little sign of drowsiness, snapped back with an email stating: “ The Endorsement of the Honourable Justice Brownstone dated March 20, 2024 clearly could not have anticipated medical conditions which make it impossible for me to defend myself or even argue my case.”

[11] In spite of that, the Respondent did appear in person at the Zoom hearing, albeit wearing a neck brace. As it turned out, the Respondent was quite energetic, focused, and articulate in stating his case before me. He held up a pillbox to show me his medication, and was very knowledgeable about his diagnosis, the proper medical names of the medication, etc. He also read out loud an X-ray report from a radiologist describing his issues with the cervical spine, and seemed to have no problem at all focusing on the written report, reading it at a considerable clip, and elaborating on the medical terminology.

[12] It was clear to me that the Respondent was perfectly able to focus on every matter to which he turned his mind. I understand that the Respondent is a qualified dentist, although he does not currently practice that profession. Whether or not he would have been alert and focused enough to perform an oral intervention on a patient, he was certainly alert and focused enough to make oral interventions on his own behalf at the hearing. In fact, after a short while listening to his rather vibrant submissions, I commented that he seemed to have renewed energy and be feeling much better. In response, he acknowledged that he did feel better.

[13] As a final pitch for an adjournment, the Respondent said that he expects to have funds coming in over the next week or two and will then be in a position to purchase the Property himself. He said that all that he needs is a one-week reprieve and the whole case will be resolved. I explained that motions court does not work that way, and that the current state of the motions list means that if we adjourn today the motion may be off for the better part of a year. At that point counsel for the Applicant hastened to indicate that with interest accumulating on the mortgage every month, another lengthy adjournment was not economically feasible.

[14] Applicant’s counsel also pointed out that at each adjournment the Respondent says that he is about to come into some money so that he can retain counsel, and that his current contention that he will have sufficient funds to buy the Property and settle this matter once and for all is just one more version of that tactic. In fact, Justice Brownstone noted in her endorsement that he had made this very argument to her – that he would be retaining counsel and that the funds to do so were about to come to him from somewhere. However, he has appeared today without counsel and there is no indication that he ever acquired the funds that he assured Justice Brownstone were on their way to him. He has also not paid the $3,500 in costs that she ordered him to pay within 30 days of the date of that motion two months ago.

[15] It is the Applicant’s submission that the Respondent is currently trespassing on the Property and that he has no right to remain there another day. Citing Grasso v. Bhatt, 2019 ONSC 746, at paras 170-71, counsel submits that a trespass of this nature entitles the title holder – i.e. the Applicant – to an order that the trespasser vacate the Property forthwith.

[16] That said, Applicant’s counsel concedes that the Respondent and his daughter would realistically need a few weeks to arrange for new accommodations and move their possessions out of the Property. He indicated that the parties here are siblings, and that the Applicant and the other siblings did not want to put the Respondent under undo pressure by demanding he vacate the Property forthwith. They simply want him out within a reasonable amount of time in order to be in a position to put the Property on the market.

[17] Applicant’s counsel said that we should keep in mind that none of this comes as news to the Respondent. He has had notice that he will have to move out for several years now, and has simply managed to work the system to delay the inevitable day as much as possible. With all of that, Applicant’s counsel suggested that a 30 to 45-day leeway for the Respondent would be reasonable. Applicant’s counsel also pointed out that once the Respondent vacates the Property so that it can be listed for sale, the Respondent will be free to make an offer to purchase it.

[18] The Respondent was examined on the pending Application in February of this year. When asked if he ever plans to voluntarily leave the Property, he responded that he plans to buy it. He has also taken that position in email exchanges with the Applicant and another sibling, lawyer Sam Ouanounou.

[19] When asked about this at the hearing, the Respondent agreed that he does not own the Property except to the extent of his 1/5 interest along with his other siblings. He also indicated that his objection to the Application is based on the need to adjust expenses and do a mutual accounting with his siblings in respect of the Property.

[20] Furthermore, he indicated that he and his daughter would need up to 60 days to move out. He reiterated that he was certain that within that time the matter will be entirely resolved with him purchasing his siblings’ interests and owning the Property outright.

Disposition

[21] The Applicant shall have an Order terminating the Respondent’s occupancy of the Property and requiring him to vacate the Property, with all of his possessions, within 60 days of today, provided that he pays the $3,500 in costs ordered by Justice Brownstone within the first 30 days. If those costs are not paid by the Respondent, his occupancy of the Property is to be terminated and he is ordered to vacate the Property within 30 days of today.

[22] The Applicant is granted exclusive possession of the Property, to be held by her as trustee for her five siblings, as of 30 or 60 days from today depending on whether the outstanding costs order is paid as set out in the paragraph above. Further, the Applicant is granted leave to issue a Writ of Possession with respect to the Property as of 30 or 60 days from today, again depending on whether the outstanding costs order is paid as set out in the paragraph above.

[23] The Property is to be sold by the Applicant at fair market value. It is to be marketed to the public by a licensed real estate agent. The agent need not obtain a formal appraisal of the Property, but is to produce a written report showing an analysis of recent sales of comparable properties and suggesting a reasonable listing price given the nature and state of the Property and the current market. The sale price is to be determined by the Applicant in consultation with the real estate agent who has done the comparative analysis.

[24] The Applicant, acting on behalf of her siblings, is responsible for instructing the real estate agent and for directing and agreeing to the sale of the Property. The Respondent is not to interfere in any way with the sale of the Property or with any steps taken by the Applicant or the real estate agent in respect of the sale of the Property.

[25] Once the Property is sold, the proceeds of sale are to be held in the account of a lawyer retained by the Applicant to represent her as vendor in the sale. This Application is then to be referred to an Associate Justice to conduct an accounting of those proceeds and to determine their distribution among the Applicant, the Respondent, and their siblings. I leave it to the Associate Justice conducting the accounting to determine the appropriate procedures and timing for that process.

[26] The Applicant is entitled to her costs of this proceeding. To be clear, these costs are in addition to the costs of $3,500 ordered by Justice Brownstone and payable as described in paragraph 20 above. For the rest of the Application, the Applicant seeks just over $24,200 in partial indemnity costs. The Respondent indicated at the hearing that although he has not been represented by counsel, he has incurred substantially more than that in his own time invested in this Application.

[27] Rule 57.01(1)(0.b) directs me to fix costs taking into account whether the amount sought by the successful party would be beyond the expectations of the unsuccessful party. Given the Respondent’s understanding of the time and expense of preparing and arguing an Application of this nature, the Applicant’s cost request should not come as a surprise. That said, the Respondent has been clear that his financial situation has been difficult in recent times. I will therefore reduce the amount payable to the Applicant somewhat in order not to put the Respondent under an undue burden while he is looking for a new place to reside.

[28] The Respondent shall pay the Applicant costs in the amount of $20,000, inclusive of disbursements and HST. This amount may be paid to the Applicant’s counsel, in trust, from the proceeds of sale without waiting for the Associate Justice’s direction. Again, this is in addition to the $3,500 payable already, which the Respondent is to send directly to Applicant’s counsel.

[29] There will be an Order to go containing the above terms, including the referral to the Associate Justice. Counsel for the Applicant should send my assistant a draft Order in Word format. There is no need for the Applicant to obtain the Respondent’s approval as to form and content of the Order.

Date: May 24, 2024 Morgan J.