Court File and Parties
COURT FILE NO.: CV-24-00714002 DATE: 2024-10-01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ARANY POOBALASINGAM Applicant/Plaintiff
AND: KUPERAN SABESHARASAH, HOMELIFE TODAY REALTY LIMITED, BHAVAN THURAIRAJAH Respondent/Plaintiff
BEFORE: Justice Papageorgiou
COUNSEL: Sarah Golan for the defendant Kuperan Martin Zatovkanuk for the plaintiff
READ: October 1, 2024
ENDORSEMENT
Overview
1The defendant Bhavan Thurairajah (“Bhavan”) made a request of the registrar pursuant to r. 2.1.01(6) for an Order that this proceeding be dismissed on the basis that, on its face, it is frivolous, vexatious or an abuse of process.
Decision
2For the reasons that follow, I do not grant the request.
Analysis
3In this action the plaintiff sues a number of defendants related to the purchase of a property at 2540 Brock Road (the “Property”). She says that in or around August 2021, she engaged the services of the defendant Kuperan Sabesharash (“Kuperan”) a real estate agent employed with the defendant Homelife Today Realty. She says that Bhavan is an associate of Kuperan.
4She says that Kuperan knew her financial constraints and yet advised her to commit to a pre-construction property, assuring her that obtaining a mortgage for this amount would be feasible. She says that Kuperan facilitated the creation of a fake mortgage approval letter which she obtained from Bhavan. This letter bore the signature of an RBC representative named Jose, and she was led to believe that this was a formality and that the RBC representative, Jose, would complete the necessary formalities.
5However, she later found out from an RBC investigation that Jose’s signature had been used without his consent. The Claim does not say when this was.
6As well, in or around April 2022, the vendors identified the letter as fraudulent and demanded a legitimate mortgage approval letter as well as additional deposits.
7The plaintiff was unable to secure a mortgage for the property and unable to complete the purchase.
8In his statement of defence, Bhavan pleads that the Claim is deficient because there is no claim for damages as against him, because the limitation period has expired, and that the plaintiff was involved and participated in the fraud such that she would be disentitled from bringing a claim.
9Bhavan denies that he provided the fake mortgage letter in any event and says that all he did was speak to the plaintiff and advise her that it would be unlikely that she would be able to obtain a mortgage. When she called, there was an individual there with him named Sagar, who was a former employee of a major bank who told the plaintiff that he could try to obtain a pre-approval using his connections. Bhavan admits that the plaintiff sent him the fee for the mortgage approval letter but this was because she did not have Sagar’s email address. Bhavan says he simply forwarded the payment to Sagar.
10Rule 2.1.01(1) provides as follows:
The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.
11As set out in Myers, J.’s decision in Gao v. Ontario WSIB and Ontario Ombudsman, 2014 ONSC 6100, 37 C.L.R. (4th) 1, at para. 9, r. 2.1.01(1) “is not meant for close calls” and decisions pursuant to this rule must be based upon whether the proceeding, on its face is frivolous, vexatious or an abuse of process.
12This is not an appropriate case for the use of r. 2.1.01(1). It involves a fake mortgage approval letter. While the 2-year limitation period is pleaded, the Claim was issued on February 2, 2024, and based upon the Claim, it was in April 2022 that the builder identified the letter as fake.
13As well, the plaintiff claims that an RBC investigation revealed that the letter was fake but it does not say when that was. Up until that time, the plaintiff says she believed that it had been signed by someone who had authority from an RBC representative to do so. Even if there is some inconsistency in the way this issue is pleaded, it is not the kind of issue that should be addressed in this way, summarily without giving the plaintiff an opportunity to amend to clarify some of the inconsistencies.
14With respect to the fact that no damages are claimed against him, this could be a drafting error. Again, this should not be addressed through a r. 2.1.01. If a Rule 21 motion were brought on this basis, the plaintiff would likely get leave to amend on this issue. In that regard, she does specifically plead that Bhavan was responsible for the fake mortgage approval letter.
15Finally, with respect to the plaintiff’s alleged involvement in the fraud, again, the Claim is somewhat inconsistent. On the one hand, the plaintiff pleads that Kuperan told her that it was common practice to use fake mortgage approval letters and some parts of the Claim suggest she was aware of this at the time but believed Kuperan’s advice that this was a common and widely accepted practice. On the other hand, Bhavan admits that he was present during a call where someone named Sagan told the plaintiff he could use his connections in the banking industry to obtain the necessary letter. As well, the plaintiff pleads that she believed that the mortgage letter had been signed by someone who had the RBC representative’s consent to sign the letter. She says she was “led to believe that this was a mere formality and that Jose [the RBC representative] would complete the necessary formalities.”
16Reading the Claim generously, it is not clear that she knew that the approval letter was a fake at the time, thus participating in a fraud, which could disentitle her to bring this claim.
17I add that this proceeding does not have any of the hallmarks of a vexatious pleading. The Claim is not lengthy. It is organized and well drafted, apart from some of the inconsistencies. There is no odd formatting. There is no rambling discourse.
18This is the kind of matter where there should be argument from both sides on the above issues and defences raised by Bhavan.
Justice Papageorgiou
Date: October 1, 2024