Court File and Parties

COURT FILE NO.: CV-24-00716493-0000 DATE: 20240606 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: NATHRAMDAS CHATERAMDAS and PREMWATTIE CHATERAMDAS Plaintiffs – and – MELISSA SANASIE AKA MELISSA CHATERAMDAS, ZIBA HEYDARIAN O/A HEYDARIAN LAW PROFESSIONAL CORPORATION, DAVID LAWRENCE TODD O/A D. LARRY TODD, BARRISTER and SOLICITOR and RIVERROCK MORTGAGE INVESTMENT CORPORATION Defendants

Counsel: Darren Frank, for the Plaintiffs/Defendants by Counterclaim David Conn, for the Defendant, Melissa Sanasie Sean Dewart, for the Defendant David Lawrence Todd James Cook and Mike Lauricella, for the Defendant Ziba Heydarian Christopher Staples, for the Defendant, Riverrock Mortgage Investment Corporation

AND BETWEEN: MELISSA SANASIE AKA MELISSA CHATERAMDAS Plaintiff by Counterclaim

• and – NATHRAMDAS CHATERAMDAS, PREMWATTIE CHATERAMDAS and VANESSA SHIM CHIM AKA VANESSA CHATERAMDAS Defendants by Counterclaim

HEARD: June 4, 2024

Papageorgiou J.

Overview

[1] This matter involves allegations that the defendant Melissa Sanasie (“Melissa”) fraudulently orchestrated a transfer of her parent’s home, the Fawcett Property for no consideration. The Plaintiff Parents say she also placed a mortgage in excess of $700,000 the Fawcett Property. They are elderly and this is their only asset.

[2] It has now been established that $515,000 of the mortgage proceeds Melissa obtained were used to pay down a mortgage on Melissa’s home, the Betony Property.

[3] I granted the plaintiffs a CPL on the Betony Property as well as relief preventing Melissa from taking any action with respect to the Fawcett Property.

[4] The mortgage on the Fawcett Property is now in default, as the defendant missed the last $6,000 monthly mortgage payment. The Plaintiff Parents cannot afford to pay it either. The solicitor for the mortgagee also appeared at this case conference.

[5] The parties wished to address a number of issues.

Motion to Set Aside the CPL

[6] The defendant wishes to schedule a motion to set aside the CPL on the Betony Property on an urgent basis. Melissa has purchased another multimillion-dollar home from a builder (the “New Build”), and she needs to sell Betony to have the funds required to close on the New Build. Between the last case conference and today, Melissa paid an additional $70,000 to extend the closing date on the New Build. So, she had the money to do this, but not to keep the mortgage on the Fawcett Property, where the Plaintiff Parents live, in good standing.

[7] The standard for setting aside a CPL is set out 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.

[8] The Plaintiff Parents have shown an incontrovertible triable issue in respect of their claim to an interest in the Betony Property because they can trace the mortgage proceeds directly into this property by Melissa’s own admission as to where the bulk of the funds went. Therefore, this will not be a basis to set the CPL aside.

[9] In terms of the equities and other factors that a court could consider, if I scheduled the motion:

i) The plaintiffs are elderly and have no other assets. One is retired and the other, who is 67 years old, works as a personal support worker.

ii) At present there is approximately $652,000 in equity in the Betony Property. Melissa is essentially seeking relief that would eliminate this equity which the Plaintiff Parents would be entitled to if they succeed. The prejudice to them is significant if they succeed in this matter, particularly given what appears to be Melissa’s precarious financial position since she could not pay last months $6,000 mortgage payment.

iii) The prejudice to Melissa is that she be unable to close the New Build and may be sued by the builder, but she and her family will still have a place to live.

iv) It is relevant that Melissa did not pay last month’s mortgage on the Fawcett Property when she clearly had enough money to pay the $70,000 to extend the closing date on the New Build. Although this is not set out in the endorsement, my notes of a previous attendance indicate that Melissa’s counsel raised the proposition that Melissa could simply stop paying the Fawcett Property mortgage if she wanted which would place the plaintiffs in a precarious position; I view this subsequent failure to pay the mortgage as a hardball litigation tactic in all the circumstances to pressure the Plaintiff Parents.

v) The Plaintiff Parents had also sued a lawyer named Mr. Todd who purportedly signed a certificate of independent legal advice with respect to the transfer of the Fawcett Property. Melissa works for him. Mr. Todd’s lawyer was present, and it has been established that he did not give independent legal advice to the Plaintiff Parents and that the certificate of independent legal advice was sent to the lawyer who completed the transfer of the Fawcett Property from a fraudulently created email address purporting to be Mr. Todd’s. Mr. Todd has now been released from the action.

[10] Scarce judicial resources should not be used on this urgent motion given the materials before me, the various admissions regarding where the funds went, as well as the agreement among the Plaintiff Parents’ and Mr. Todd’s counsel that someone impersonated Mr. Todd in purportedly giving independent legal advice to the Plaintiff Parents. This is particularly the case since the Fawcett mortgage has gone into default, is due in December 2024 and the mortgagee is here saying it will take enforcement steps.

[11] I will not schedule this motion urgently, but I will schedule an expedited summary judgment motion for a full day to be heard on November 4, 2024. As such there is no point in scheduling the motion to set aside the CPL in the ordinary course because the merits will be determined before a date for a motion to set aside the CPL can be scheduled in the ordinary course.

[12] This is the timetable for the summary judgment motion:

1. Mediation by July 10, 2024.
2. Affidavits of documents by June 28, 2024.
3. Plaintiff’s motion materials by August 23, 2024.
4. Defendants’ responding materials by September 30, 2024.
5. Plaintiff’s reply materials by October 4, 2024.
6. Cross examinations and rule 39 examinations by October 11, 2024.
7. Answers to undertakings by October 18, 2024.
8. Plaintiff’s factum by October 24, 2024.
9. Defendant’s factum by October 29, 2024.
10. Reply factums if any by October 31, 2024.

[13] I also Order that the parties should be prepared at the time of the summary judgment motion to call oral evidence in the event that the summary judgment judge determines that there is a credibility issue that can only be resolved in that way. They should be prepared to do this on the spot so as to not waste further court days and so as to avoid any further delays.

Further Production

[14] There is also an issue as to production. At the last case conference, I ordered Melissa to produce details with back up as to where the mortgage proceeds on the Fawcett Property went. They advised that $113,000 of it went to RRSP’s and also to pay other expenses. They provided no back up. I order that they provide particulars as well as back up within 7 days.

[15] The parties may reattend before me if they need anything further prior to the summary judgment motion.

Papageorgiou J. Released: June 6, 2024