Court File and Parties

Court File No.: CV-23-00698592-0000 Date: 2024-10-02 Superior Court of Justice - Ontario

Re: Aset Aysha Zekeria v. Yvonne Murphy and Kamar Luqas Tensae

Before: Associate Justice Rappos

Counsel: Aset Aysha Zekeria, self-represented David Fenig, for the Defendants

Heard: October 1, 2024 (via videoconference)

Reasons for Decision

Introduction

[1] The Plaintiff Aset Zekeria brings a motion for leave to register a certificate of pending litigation (“CPL”) against title to real property municipally known as 2800 Keele Street, Unit #806 (the “Property”).

[2] Ms. Zekeria has lived at the Property since October 2018. She currently lives there with her son. Ms. Zekeria and the Defendant Kamar Luqas Tensae were previously common law spouses, and lived together at the Property from October 2018 to February 2022. The Defendant Yvonne Murphy is the mother of Mr. Tensae.

[3] Ms. Zekeria candidly states that she seeks the CPL to prevent the Defendants from selling the Property before the trial, which is scheduled for January 2026. She says that Mr. Tensae has been emotionally and physically abusive to her and their child, and requires the CPL to ensure that there is stability for her and her son.

[4] Ms. Murphy brought an application before the Landlord and Tenant Board to have Ms. Zekeria evicted from the Property. In its decision dated May 13, 2024, the Board dismissed the application on the basis that Ms. Murphy failed to establish that there was a landlord-tenant relationship in existence with Ms. Zekeria after Mr. Tensae left the Property. As well, the Board noted the existence of this proceeding and Ms. Zekeria’s claim of an equitable interest in the Property and that this issue had to be dealt with by the Superior Court.

Legal Principles

[5] The Court has the authority to grant a CPL over real property. [1] A plaintiff must make a claim for a CPL in her statement of claim, and set out a description of the land. [2] There must be an “interest in land” in question in the proceeding. [3]

[6] The test for granting a CPL is well established. The Court is to consider the following matters when exercising its discretion to decide whether a CPL should be granted:

(a) the threshold for finding an "interest in land" on a motion respecting a CPL is whether there is a triable issue as to such interest, not whether a plaintiff will likely succeed;

(b) the onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL as "a reasonable claim to the interest in the land claimed";

(c) factors the court can consider on a motion to grant a CPL 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 granted;

(d) 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; and

(e) even if the moving party has a reasonable claim to an interest in land, the court must still review and balance the equities between the parties. [4]

Preliminary Matter

[7] With respect to the evidence before the Court, Ms. Zekeria and Mr. Tensae both filed affidavits. As this matter is under the Simplified Procedure, there were no cross-examinations. [5]

[8] During her submissions, Ms. Zekeria referred to matters that were not set out in any of the affidavits. I informed her that as this was a motion, the only way to put evidence before the Court is by way of affidavit. [6] As a result, I did not consider the submissions made by Ms. Zekeria that were evidence instead of argument.

Analysis

[9] Having reviewed the evidence before the Court and heard the positions of the parties, I am not prepared to exercise my discretion to issue a CPL over the Property.

[10] The statement of claim must be read generously and liberally, with allowances for drafting deficiencies. Even with these principles in mind, Ms. Zekeria does not make any claim for a CPL in her statement of claim.

[11] Ms. Zekeria seeks general damages of $200,000 and special damages of $10,000 for “Breach of Contract, Abuse of Power, General Damages Breach of Trust, Emotional & Psychological damages”. She does not directly claim an interest in the Property, or seek any relief with respect to the Property.

[12] Ms. Zekeria refers to the Property having been her “matrimonial home” when she resided there with Mr. Tensae. She alleges that she was “investing” in the Property and would be making mortgage payments and that Mr. Tensae referred to the Property as “our home”.

[13] This is not a family law proceeding. Ms. Zekeria has alluded to the fact that there is a family law proceeding in existence. If Ms. Zekeria wishes to make an argument that the Property is a matrimonial home, she will have to do so in the family law proceeding.

[14] The evidence before the Court is that Ms. Murphy purchased the Property on March 13, 2018 as an investment property. On October 2, 2018, Ms. Murphy transferred a 25% interest in the Property to Mr. Tensae.

[15] Ms. Zekeria and Mr. Tensae lived together at the Property from October 2018 to February 2022. Mr. Tensae moved out due to allegations of abuse made by Ms. Zekeria. Ms. Zekeria claims that the Defendants “duped” her into signing a rental application dated October 1, 2018, so that the Property could be treated as an investment property. Ms. Zekeria claims she never signed a rental agreement or lease for the Property. She alleges that the Defendants have committed occupancy and mortgage fraud by using her as a false tenant.

[16] Ms. Zekeria claims that she made “significant investments” in the Property, including mortgage payments essential repairs and utility bills, and this entitles her to an interest in land.

[17] However, Ms. Zekeria has not put forward any document that substantiates this claim. She claims that in the family law proceeding, the court ordered Mr. Tensae to continue making the mortgage payments in lieu of paying child support. A copy of this order was not provided to the Court.

[18] Mr. Tensae has put forward evidence that he made some of the mortgage payments, and that Ms. Murphy has been making the mortgage payments since 2023. He has provided a statement from the mortgagee of amounts paid to it, along with copies of bank statements. Additionally, the Defendants have put forward evidence that Ms. Murphy has paid for the condo maintenance fees and property taxes.

[19] Even if I were to assume that Ms. Zekeria did in fact make the payments she said she did, none of the parties have directed me to any case law that says that making such payments entitles the payer to an interest in the property at question.

[20] As a result, in my view Ms. Zekeria has not met the admittedly low bar to establish that there is a triable issue for an interest in land. I do not see on what basis Ms. Zekeria would be entitled at trial to an interest in land based on the evidence before me.

[21] With respect to the other factors to be considered, Ms. Zekeria has not alleged that the Property is unique in any way. As noted above, she simply seeks the CPL to prevent the Defendants from attempting to evict her from the Property pending the completion of the trial.

[22] Ms. Zekeria has made claims for damages in her statement of claim. If Ms. Zekeria is successful at trial, it appears that the Defendants have assets that would be available to her to enforce upon. The record shows that Ms. Murphy has a 15% interest in a property municipally known as 55 George Appleton Way, Suite 2107, Toronto, a 93.34% interest in a property municipally known as 60 Monclova Road, Toronto, and a 75% interest in the Property. As well, Mr. Tensae states in his affidavit that both himself and Ms. Murphy are gainfully employed and have no intention to sell the Property.

[23] Based on this evidence, I find that damages would be a satisfactory remedy for Ms. Zekeria if she is successful at trial.

[24] In terms of the equities of the situation, I do acknowledge that Ms. Zekeria has been living in the Property for six years with her son, and she wants a stable location to raise her son. However, given the statements made by Mr. Tensae that there is no intention to sell the Property, and given that the Landlord and Tenant Board has already denied Ms. Murphy’s attempt to evict Ms. Zekeria from the Property, and Ms. Murphy continues to make the monthly mortgage payments, I do not see there to be any prejudice if a CPL is not granted before the trial commences in January 2026.

[25] Ms. Zekeria argues that I should not accept Mr. Tensae’s statements, as he has repeatedly lied in documents filed with the court. In my view, questions of credibility cannot be assessed on a CPL motion such as this one which is brought in a Simplified Procedure matter where no cross-examinations have taken place. [7] Issues of credibility will be dealt with by the trial judge.

[26] Additionally, I note that it is clear that Ms. Zekeria is motivated to obtain the CPL as a means of preventing the Defendants from selling the Property until she can obtain judgment. A CPL is intended to protect an interest in land in situations where other remedies would be ineffective. It is not intended to be an instrument to secure a claim for damages. [8] If she has concerns about the dissipation of the Property, it is open for her to seek this relief by way of a Mareva order. [9]

Disposition and Costs

[27] For the reasons set out above, I do not believe there is a triable issue as to whether Ms. Zekeria has an interest in the Property. As a result, I hereby dismiss her motion for a CPL.

[28] In terms of costs, the Defendants seek approximately $6,800 all inclusive in fees, disbursements, and taxes on a partial indemnity basis for this motion. Ms. Zekeria argues that no costs should be awarded, as she has no money to pay any costs award.

[29] Costs of a step in a proceeding are in the discretion of the Court, as set out in section 131 of the Courts of Justice Act. Rule 57.01 of the Rules of Civil Procedure sets out factors that the court may consider in exercising such discretion. The overarching objective is to fix an amount of costs that is objectively reasonable, fair and proportionate for the unsuccessful party to pay in the circumstances. [10]

[30] In this case, the Defendants were entirely successful with Ms. Zekeria’s motion being dismissed. The principle of indemnity provides that the successful party is entitled to a portion of its costs.

[31] While Ms. Zekeria says she did not expect for any costs to be awarded against her, I do not believe that to be a reasonable expectation for her to have. She brought a motion and engaged in the litigation process. The Defendants were required to respond to her motion for a CPL. In my view, Ms. Zekeria should have expected that the Defendants would seek costs against her if she was unsuccessful with the motion.

[32] Ms. Zekeria says she will be unable to satisfy any costs award. She has not put any evidence before the Court regarding her current financial circumstances. As a result, I am unable to conclude based on the record before me that she is impecunious and unable to satisfy any costs award.

[33] Having reviewed the costs outline of the Defendant, I believe a reasonable, fair, and proportionate amount of costs for Ms. Zekeria to pay is $4,000 all inclusive. As a result, I hereby fix costs payable by Ms. Zekeria to the Defendants at $4,000 within 120 days.

Released: October 2, 2024 Associate Justice Rappos

Footnotes

[1] Section 103 of the Courts of Justice Act and rule 42.01 of the Rules of Civil Procedure. [2] Subrule 42.01(2), Rules of Civil Procedure. [3] Subsection 103(1), Courts of Justice Act. [4] Chow v. Russell, 2021 ONSC 6525, para. 25; Beygi et al. v. Mahmoudzadeh, 2020 ONSC 7944, paras. 19-20. [5] Subrule 76.04(1), Rules of Civil Procedure. [6] Subrules 37.10(2) and 39.01(1), Rules of Civil Procedure. [7] Chow v. Russell, 2021 ONSC 6525, para. 26. [8] Rahbar v. Parvizi, 2022 ONSC 1104, para. 40. [9] Bains v. Khatri, 2019 ONSC 1401, para. 37. [10] Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, para. 61.