Court File and Parties

COURT FILE NO.: CV-24-00719821 DATE: 20240528 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Joao Ramos Applicant – and – Laurentino Neves and Mark Neves Respondents

Counsel: Jacob Klugsberg, for the Applicant

HEARD: May 28, 2024

Judge: Papageorgiou

Overview

[1] The Applicant claims an interest in property that he says he jointly purchased with the Respondent located at 2392 Kingston Road, Toronto (the “Property”).

[2] The Applicant made a request for an urgent Application date and the matter was sent to a case conference before me.

[3] The Applicant had already served the Respondent Laurentino Neves (“Laurentino”) who is now the registered owner of the Property with the Application. He had been unable to serve the Respondent Mark Neves (“Mark”) as he does not have an address.

[4] The Applicant then advised the Laurentino of the zoom information for the case conference. Laurentino advised that he was not prepared to deal with this matter now but would deal with it in a month after he has had time to retain a lawyer.

Decision

[5] For the reasons that follow I am scheduling this matter for the hearing of the Application with a timetable set out at the end of these reasons. If the Respondents wish to revise this schedule, then they may arrange a case conference with me through my assistant.

[6] Given Laurentino has not bothered to even attend, I am satisfied that it is appropriate to make an interim order at this time, in accordance with Miller v. Ledra, 2023 ONSC 4656 where Koehnen J. set out that r. 50.13(6) permits the Court to make procedural orders, make orders for interlocutory relief and give directions.

[7] If Laurentino had been of the mind that such an order should not be made, then he could have attended and set out why or his position on anything set out in the Application.

[8] As well, the Application will be scheduled on an expedited basis. The Respondents will have an opportunity to address the merits in short order and also have the remedy of seeking to set aside the CPL if they feels he has grounds.

Issues

[9] Has the Applicant satisfied the test for a CPL?

Analysis

[10] The usual test for granting leave to register a CPL is well established in the relevant jurisprudence. It requires the determination of whether there is a triable issue in respect of the moving party’s claim to an interest in the property: 2254069 Ontario Inc. v. Kim, 2017 ONSC 5003, at para. 21; Pacione v. Pacione, 2019 ONSC 813, at para. 20.

[11] In Royal Bank of Canada v. Azkia et al, 2019 ONSC 5894, Master Sugunasiri set out the most relevant considerations for without notice CPL’s:

(i) The test on a motion for leave to issue a CPL is the same as the test on a motion to discharge a CPL;

(ii) The threshold in respect of the "interest in land" issue as set out at section 103(6) of the CJA is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed;

(iii) Factors the court can consider include (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 CPL is or is not removed with or without security; and

(iv) The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted.

Triable Issue

[12] In this case, I am satisfied from the Applicant’s sworn affidavit evidence that there is a triable issue of whether the Applicant has an interest in the Property. This evidence includes details as to his agreement with the Respondent to purchase the Property in 2005, their dealings with the Property afterwards, a written agreement from the Respondent indicating that the Applicant would own 50 % of the Property, and evidence as to his contribution to the acquisition and ongoing expenses related to the Property set out his sworn affidavit.

Harm to Applicant

[13] I am satisfied that the harm to the Applicant if the CPL is not granted is great. In that regard, he is 75 years old and has had his investment tied up since 2005.

[14] His evidence is that he and Laurentino purchased the Property as an investment. The Applicant’s evidence sets out that Laurentino advised him that the Property could not be put into his name. The Applicant assumed it was based on financial or credit issues. They agreed that title to the Property would be held by Laurentino’s son, Mark.

[15] Since 2017, the Applicant has been writing to Laurentino telling him he wants to sell the Property and get his investment out. There have been approximately twenty requests from the Applicant without any response or with a response indicating that Laurentino was not prepared to address the issue at the time. At no time did Laurentino respond indicating that he disputed the Applicant’s claim to an interest in the Property which one would expect if that was Laurentino’s position.

[16] Then, the Applicant did a title search and discovered that the Property had been transferred from Mark to Laurentino, contrary to their agreement as to how title would be held. This caused the Applicant concern. The fact that this transfer was made without advising the Applicant causes concern that Laurentino is starting to deal with the Property contrary to the terms of their agreement, as well as concerns that he may dissipate it. This is magnified by the Respondent’s failure to respond for many years as well as his response to the scheduling of this case conference.

Prejudice to the Respondent

[17] Given that Laurentino has not attended, with knowledge of the matter to be addressed at the case conference, I conclude that Mr. Laurentino Neves did not have any evidence of harm to place before me.

Other Considerations

[18] There is no alternative claim for damages and there is reason to believe that Laurentino would not have the means to satisfy any claim for damages because of Mr. Laurentino Neves’ initial advice that the Property could not be put in his name. The Applicant is 75 years old, does not speak English, is not sophisticated and trusted Laurentino who was his friend. He needs the money from this investment for living expenses.

[19] The registered Caution expires in 30 days and there is a real risk that the Applicant will lose its interest if the CPL is not made.

[20] Again, if the Respondents are of the view that there is a basis to set the CPL aside, they may make the appropriate motion.

[21] The Application is scheduled for August 23, 2024, for three hours before me if I am available. The following schedule shall apply:

• The Applicant must serve the Respondent Mark Neves immediately.
• The Respondents may deliver a Responding Application Record by June 24, 2024.
• The Applicant may deliver Reply materials by July 2, 2024.
• Cross examinations, if any, shall take place during the week of July 22, 2024.

[22] Again, if the above schedule does not work for the Respondents they may seek a case conference with me.

[23] Costs reserved to the hearing of the Application.

Papageorgiou J. Released: May 28, 2024