Ontario Superior Court of Justice

Court File No.: CV-24-0261-000
Date: 2025-05-21

Between

Michael Vojvodic
Plaintiff/Responding Party
Counsel: V. Popescu

-and-

R. Agostino & Sons Service Station Ltd., Frank Agostino and Joseph Agostino
Defendants/Moving Party
Counsel: G. Sanson

Heard: May 15, 2025, at Thunder Bay, Ontario
Justice: R.A. Lepere

Decision on Motion

Overview & Factual Background

[1] The Plaintiff, Michael Vojvodic (“Michael”), is the former brother-in-law of the Defendants, Joseph Agostino (“Joseph”) and Frank Agostino (“Frank”). Michael married their sister, Maria Agostino (“Maria”) in 1986. After their marriage, Michael and Maria resided in a home on property owned by the Defendant, R. Agostino & Sons Service Station Ltd. (the “Corporation”) located at 1133 John Street Road, Thunder Bay, Ontario (the “Property”) with the consent of Frank and Joseph. Frank and Joseph are the sole directors and shareholders of the Corporation.

[2] Frank and Joseph historically used the Property as part of the operation of their U-Haul business on a neighbouring property. This continued while Michael and Maria resided at the Property.

[3] Maria and Michael separated in or about 2004 or 2006. Michael has continued to reside at the home on the Property since their separation.

[4] Michael has paid his own utilities for the Property and has made payments to the Corporation for the cost of insurance on the Property. He also started contributing to the payment of property taxes in 2022.

[5] In the summer of 2024, Frank and Joseph advised Michael that they wanted to sell the Property to develop it and therefore, he would have to move out. Michael expressed interest in purchasing the Property or developing it with Frank and Joseph but later indicated he did not have the funds to do so.

[6] The Corporation agreed to sell the Property to a third-party purchaser with the Agreement of Purchase and Sale being executed on October 3, 2024. Once sold, the Property will be developed and, as part of that development, the home on the Property in which Michael resides will be demolished. Michael was advised on June 16, 2024, that he would need to vacate the Property and was given until September 30, 2024, to do so.

[7] On July 30, 2024, Michael commenced the within action claiming a beneficial interest in the Property on the basis of proprietary estoppel and/or unjust enrichment or, alternatively, damages. He asserts that Frank and Joseph, along with their mother, promised the Property to Michael and Maria as their matrimonial home. It is the evidence of Frank and Joseph that while they agreed to Michael and Maria residing at the Property it was to be for a limited time, after which they would purchase their own home or build. This never occurred and they allowed Michael and Maria to continue to reside at the Property as they did not want to create issues within the family.

[8] Michael also advances an alternative claim for damages for quantum meruit. He asserts that he made improvements to the Property that have increased the value of same. He further states that, as part of the promise of the Property to him and Maria, he performed work at other family members’ homes for free which he should now be compensated for if he is not going to receive the Property. It is the position of the Defendants that, while Michael may have done some work to the home, the Corporation paid for all materials, none of the improvements were material in nature and/or they were done so long ago that could not have an effect on the value of the Property.

[9] Within the action, Michael obtained an Order dated August 1, 2024, to register a Certificate of Pending Litigation on the Property. The Order was obtained without notice.

[10] The Defendants have now brought this motion for the following relief:

a. an order under the Partition Act, RSO 1990, c P.4 for the sale of the Property pursuant to the Agreement of Purchase and Sale dated October 3, 2024;

b. alternatively, an order discharging the Certificate of Pending Litigation from title to the Property; and

c. an order that Michael deliver vacant possession of the Property prior to the closing date and/or that a Writ of Possession be issued to the Defendants.

[11] The Defendants further assert that they are prepared to agree to an order that the net sale proceeds from the Property be held in trust by Buset LLP pending agreement by the parties or further order of the Court.

Discharge of Certificate of Pending Litigation

[12] I will first deal with the issue of whether the Certificate of Pending Litigation dated August 2, 2024, and registered on title to the Property on August 6, 2024, (the “CPL”) should be discharged.

[13] Section 103 of the Courts of Justice Act, RSO 1990, c C.43 (the “Act”) empowers the Court to issue a certificate of pending litigation in a proceeding where an interest in land is in question. The order can be obtained without notice.

[14] Section 103(6) of the Act states as follows:

The court may make an order discharging a certificate,

(a) where the party at whose instance it was issued,

(i) claims a sum of money in place of or as an alternative to the interest in the land claimed,

(ii) does not have a reasonable claim to the interest in the land claimed, or

(iii) does not prosecute the proceeding with reasonable diligence;

(b) where the interests of the party at whose instance it was issued can be adequately protected by another form of security; or

(c) on any other ground that is considered just,

and the court may, in making the order, impose such terms as to the giving of security or otherwise as the court considers just.

[15] In addition, the court should consider a number of factors in deciding whether to exercise its discretion to discharge a certificate of pending litigation, which include the following:

a. whether the plaintiff is a shell corporation;

b. whether the land is unique;

c. the intent of the parties in acquiring the land;

d. whether there is an alternative claim for damages;

e. the ease or difficulty in calculating the damages;

f. whether damages would be a satisfactory remedy;

g. the presence or absence of a willing purchaser;

h. the harm to each party if the CPL is or is not removed with or without security: see Peruzza v. Spatone, 2010 ONSC 841 at para. 20.

[16] Ultimately, the Court has discretion as to whether to discharge a certificate of pending litigation. The circumstances set out in ss. 103(6) (a) to (c) are not absolute. The Court must look at all relevant factors and matters between the parties to determine whether a certificate of pending litigation should be discharged: see Peruzza v. Spatone, 2010 ONSC 841, at para. 20.

[17] Upon a consideration of the relevant factors, I find that the CPL registered on title to the Property shall be discharged. When the relevant factors are considered, they weigh in favour of an exercise of my discretion to discharge the CPL. My reasons in support of this finding can be found below.

Property is Unique

[18] A property will be considered unique if it has a quality that cannot be readily duplicated elsewhere. This quality should relate to the proposed use of the property and be a quality that makes it particularly suitable for the purpose for which it was intended: see 1954294 Ontario Ltd. v. Gracegreen Real Estate Development Ltd., 2017 ONSC 6369, para 150.

[19] Michael argues that the Property is unique, as it has been his matrimonial home for 40 years. I find that the Property is not unique. Other than this statement in his Affidavit, he has provided no evidence as to any specific qualities of the Property that may render it unique to him, or that would make it difficult for him to find another place to live. The fact that it has been his home for 40 years, and once his matrimonial home with Maria, does not render the Property unique.

Alternative Claims to Damages

[20] In the Statement of Claim, Michael’s primary claim is for a declaration, on the basis of proprietary estoppel or unjust enrichment, that the Corporation holds its interest in the Property in trust for him. On the motion, it was confirmed that his claim is for a 100% interest in the Property.

[21] In the alternative, he seeks damages on the basis of proprietary estoppel or unjust enrichment.

[22] In the further alternative, he also seeks damages on the basis of quantum meruit. This claim is for payment of money for the time and materials he has invested into the Property and for payment for services rendered to the homes of Frank and Joseph and other family members for no charge, which he asserts was part of the promise that he would be given the Property.

[23] I agree with Michael that an alternative claim for damages does not automatically result in the discharge of the CPL. It is one factor to be considered, alongside the other relevant factors.

[24] As such, it is not the fact that an alternative claim for damages is made that is, in itself, a significant factor for me to consider when exercising my discretion. What is significant is whether the damages would be a satisfactory remedy, as well as the ease or difficulty in calculating the damages.

[25] With respect to Michael’s claim to a 100% interest in the Property based on proprietary estoppel or unjust enrichment, and his alternative claim for damages based on these causes of action, I find that damages would be a satisfactory remedy. If he is successful, he would be entitled to damages equal to the value of the Property. In June 2024, when he was advised by the Defendants that they intended to sell the Property, he was interested in purchasing the Property or developing it with Frank and Joseph. This suggests to me that he was not overly concerned about retaining his home but was interested in the money that would flow from the sale or development of the Property. It was not until he learned that he could not afford to purchase the Property from the Corporation, nor develop it with the Defendants, that his position changed, and this litigation was commenced.

[26] Furthermore, damages would be easy to determine in this instance as the Property has been effectively sold, thereby determining the value of same.

[27] I acknowledge that Michael’s further alternative claim to damages based on quantum meruit may be more difficult to calculate given the passage of time, since expenses were incurred and alleged services were provided. In Billimoria v. Mistry, 2021 ONSC 1939, Woolcombe J. dealt with a similar situation when assessing what amount of net sale proceeds each party should receive. At para. 148 she found that there were gaps in the evidence regarding the value of the parties’ alleged contributions to the property, but still made a determination of the parties’ entitlement to the sale proceeds based on the limited evidence she had and principles of fairness and equity. A similar analysis could be done in this case if Michael is found to be entitled to damages.

[28] I find that Michael has an alternative claim for damages. With respect to his claim for 100% of the Property, his claim for damages will adequately compensate him as the damages awarded would reflect the current value of the Property. The current value of the Property is easy to calculate as there is a sale pending for same. While his claim for damages for quantum meruit may be more difficult to calculate, there is a mechanism and process by which this can be done, as set out in the Billimoria decision. The difficulty in potentially calculating those alleged damages does not give rise to a finding that the CPL should not be discharged.

Willing and Able Purchaser

[29] Michael asserts that there is no willing and able purchaser, as the Agreement of Purchase and Sale dated October 3, 2024, is null and void. He asserts that the conditions in the Agreement were not fulfilled or waived by the deadline rendering same null and void.

[30] Pursuant to the Agreement of Purchase and Sale, the conditions were to be met or waived by 5:00pm on November 15, 2024. There is a letter from the lawyer for the purchaser dated November 15, 2024, advising that “our client hereby waives condition (a) and condition (b) as set out in the Agreement of Purchase and Sale.” The conditions are actually found in paragraphs (b) and (c) of the Agreement of Purchase and Sale. While I have no evidence on this, it appears that there was a typo in the letter. I am uncertain if Michael is relying on this error as support for his position that the conditions were not waived by the deadline.

[31] In any event, it is the evidence of the Defendants that the agreement remains in effect and the Court was advised that the closing date has been extended to June 2, 2025.

[32] Based on the evidence before me, I find that there is a willing and able purchaser for the Property, as the proposed purchaser remains in a position to purchase the Property and they intend to close the deal on June 2, 2025.

Harm to the Parties if the CPL Remains or is Lifted

[33] If the CPL remains, the Corporation will lose out on the deal to sell the Property for $1,000,000.00. They will be left with the Property on which Michael resides and for which he pays nothing other than his own expenses and some limited contributions to insurance and property taxes.

[34] If the CPL is discharged, the sale of the Property will proceed but the net sale proceeds will be held pending a determination of this action. Michael will be forced to find alternative living accommodations.

[35] I find that the harm to the Defendants in allowing the CPL to remain in place is greater than the harm to Michael if the CPL is discharged. Michael has had notice for almost a year that the Defendants wanted to sell the Property and he would have to vacate. I have no evidence about the nature of the home located on the Property, or why it would be difficult for Michael to find alternative accommodations. He has been living at the property for 40 years with minimal expenses and should be able to find somewhere else to live while this litigation proceeds. I also note that Michael has not progressed this litigation in a timely manner. Pleadings were closed on December 30, 2024. The parties have not exchanged Affidavits of Documents nor scheduled discoveries. Furthermore, the fact that the net sale proceeds will be held pending a determination or resolution of the action prevents potential harm to Michael by lifting the CPL.

Sale Pursuant to Partition Act

[36] Given that I have discharged the CPL, it is not necessary for me to determine whether an order for the sale of the Property under the Partition Act, RSO 1990, c P.4, should be made, as the discharge of the CPL will allow the sale of the Property to be completed.

Conclusion

[37] Further to the above, I make the following Orders on this motion:

a. The Certificate of Pending Litigation registered on title to the Property in the Land Titles Office for the District of Thunder Bay on August 6, 2024 shall be discharged. The parties shall include the Instrument Number for the CPL in the Order.

b. The Plaintiff, Michael Vojvodic, shall provide vacant possession of the Property to the Defendants on or before 5pm on May 31, 2025.

c. A Writ of Possession shall issue to the Defendants in relation to the Property. However, the Defendants shall not use same to compel Michael to vacate the Property until after the May 31, 2025 deadline.

d. The net sale proceeds from the sale of the Property shall be held in trust by Buset LLP in an interest-bearing account pending further agreement by the parties or a further order of this Court.

Costs

[38] If the parties cannot resolve the issue of costs of this motion, they may each deliver written cost submissions of not more than three pages plus a Costs Outline within 20 days of the date of this decision.

“original signed by”
R.A. Lepere

Released: May 21, 2025