SUPERIOR COURT OF JUSTICE – ONTARIO
7755 Hurontario Street, Brampton ON L6W 4T6
RE:
ROOPCHAN, NANDITA, plaintiff
AND:
ABEYWARDENA, Lelen Udana ABEYWARDENA, Hewa Masmullage ARACHCHIGE, Pramila Padmasr Ranasinghe, defendants
BEFORE:
Associate Justice Nitchke
COUNSEL:
ABBOTT, Patrick, / MOORE, Evan (not in attendance) for the plaintiff Email: pabbott@moorelawyers.ca / emoore@moorelawyers.ca
ABEYWARDENA, Lelen Udana is SELF-REPRESENTED Email: lelenabey@gmail.com
DE ALWIS, Bhagya for the defendants ABEYWARDENA, Hewa Masmullage & ARACHCHIGE, Pramila Padmasr Ranasinghe Email: bdealwis@dealwislaw.com
HEARD:
February 4, 2026, in-person
REASONS FOR DECISION
Overview
1The Plaintiff brings this motion for an Order for Leave to register a Certificate of Pending Litigation (“CPL”) in respect of a condominium property located at Suite 2601, 30 Elm Drive, Mississauga, ON (“the Property”).
2For the reasons that follow, I dismiss the motion.
Factual Background
3Interlocutory motions such as the present one often proceed on untested affidavit evidence, without the benefit of cross‑examination or a full evidentiary record. Caution is warranted before accepting facts that are clearly in dispute: Arbitman v. Lee, 2021 ONSC 315. The Defendants’ affidavits contain a mix of fact and argument. I have therefore confined my findings to evidence properly before the Court. Factual findings that are based directly on areas of common ground can appropriately be made: Arbitman, supra, at para. 25. I have not considered any of the hearsay evidence that was presented.
4The record establishes that on or about October 18, 2018, the Plaintiff, Nandita Roopchan (“Nandita”), entered into an agreement with Solmar (Edge) Corp. (“Solmar”), for the purchase of a new construction condominium unit for a purchase price of $572,900.00 (the “APS”).
5The Statement of Claim states that Nandita originally intended to purchase the Property as a residence for her son. However, by the time the occupancy date was established, that need was no longer required. Accordingly, she decided to find a purchaser to whom she could assign the APS.
6Over the first 545 days of the APS (roughly the first year and a half), Nandita made periodic deposits to Solmar as stipulated in the APS, in the total amount of $85,936.00.
7On March 1, 2022, Nandita and Lelen Udana Abeywardena (“Lelen”) entered into a contract titled “Assignment of Agreement of Purchase and Sale” (“Assignment Agreement”), whereby Nandita assigned her “rights, title and interest” under the APS to Lelen. The total agreed price of the Property was $770,000.00. As consideration for the assignment, Lelen was to pay Nandita the total of $283,035.00 as follows: $115,500.00 as a deposit (the “Assignment Deposit”); and $167,535.00 upon final closing of the APS. As the assignee, Lelen would pay the final amount to Solmar pursuant to the original APS.
8The Assignment Deposit of $115,5000.00 was paid to Nandita’s lawyer on March 1, 2022. The parties agreed that the monies could be released to Nandita after Solmar provided its consent to the assignment. The cheque was signed by the Defendant, Hewa Masmullage Abeywardena (“Hewa”) and records him as the “Purchaser.”
9As the assignment required consent from the vendor, an “Assignment and Amending Agreement” was entered into by Nandita, Lelen and Solmar on or about April 27, 2022 (“Solmar Assignment Agreement”), thereby completing the assignment. Notably, clause 1 of the Solmar Assignment Agreement provides as follows:
10There is nothing in the Assignment Agreement or the Solmar Assignment Agreement that stipulated what was to occur in the event of default. It is not disputed, though, that Nandita remained vicariously liable to Solmar in the event of a default.
11In 2024, Lelen sought to terminate the Assignment Agreement. When that was not accepted, he sought to renegotiate the price. When those efforts failed, his parents completed the transaction with Solmar. Nandita was never paid the balance of the agreed-upon price within the Assignment Agreement.
12On January 23, 2024, Lelen’s real estate lawyer (“Ms. Anthony”) sent a letter to Nandita’s real estate lawyer alleging that Nandita executed an amendment to the APS to extend the final occupancy date to December 3, 2024, without Lelen’s consent. Nandita denies ever agreeing to this.
13The original final occupancy date is not clearly established in the record before me. However, an “Outside Occupancy Date” can be found in a document titled “Statement of Critical Dates,” which forms part of an “Addendum to Agreement of Purchase and Sale” which was signed on October 18, 2018, the same date as the APS. The “Outside Occupancy Date” was stated to be January 28, 2025.
14In her letter dated January 23, 2024, Ms. Anthony claimed that Lelen wanted to terminate the Assignment Agreement as he would not have agreed to an extension of the occupancy date. In the same letter, Ms. Anthony mentioned that he wanted to relocate out of Ontario. They offered to pay Nandita a “Re-Assignment fee” of $10,000.00 in exchange for termination of the Assignment Agreement.
15Nandita denies executing any amendment regarding an occupancy date with Solmar. Her lawyer (“Mr. Holmes”) sent an email to Ms. Anthony on January 24, 2024, denying that Nandita was part of any change in the occupancy date and that any change would have been done by Solmar on its own accord. Mr. Holmes reiterated in his letter that the Statement of Critical Dates allowed the builder to unilaterally change the occupancy date to an outside occupancy date of no later than January 28, 2025. Mr. Holmes wrote that they expected Lelen to honour the terms of the remainder of the Assignment Agreement.
16On November 5, 2024, Ms. Anthony sent another letter to Mr. Holmes noting the occupancy date of December 3, 2024, and requested an opportunity to renegotiate the price under the Assignment Agreement due to the discovery that the property value was “highly inflated when the assignment was completed.” The letter also noted that Lelen was required to obtain pre-approval from a lender. The Defendants assert that Lelen was not made aware of this requirement before.
17On November 13, 2024, Mr. Holmes responded to Ms. Anthony by email, refusing to accept a price reduction. The email further stated:
“To mitigate damages, my client is speaking with a lender so that if your client is not willing and or able to close the transaction with the builder, my client will close with the builder.”
18Nandita did not hear anything further from Lelen, his parents or Solmar, until April 2025. Despite knowing that the outside occupancy date had come and gone, there is no evidence to show what, if anything, Nandita did to investigate or recuperate the final amount owing to her from Lelen under the Assignment Agreement upon close of the APS, nor is there any evidence that she followed up with the stated intention to complete the APS herself.
19In April 2025, Nandita discovered through her real estate agent (“Mr. Davie”) that the Property had been sold to the Defendants, Hewa and Pramila Padmasr Ranasinghe Arachchige (“Pramila”), who are Lelen’s parents, with a closing date of January 14, 2025. The evidence establishes that the Defendants had entered into an amending agreement with Solmar on January 9, 2025, replacing Lelen as the buyer of the Property with Hewa and Pramila. None of the parties had contacted Nandita to advise her of this change.
20Nandita commenced the within action on May 13, 2025 seeking damages in the amount of $167,535.00 for breach of contract, a declaration that Hewa and Pramila hold title to the Property in trust for her pursuant to a resulting trust and constructive trust, a declaration that the transfer of the Property to Hewa and Pramila is void pursuant to the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, and for a Certificate of Pending Litigation against the Property. Nandita’s claim against Hewa and Pramila include a claim that they “procured” Lelen’s breach of the Assignment Agreement.
21Prior to commencing the Statement of Claim, Nandita caused a Caution to be registered on the Property on April 25, 2025. Notice of the Caution was purportedly sent to Ms. Anthony on April 25, 2025.
22However, the evidentiary record only contains the letter itself, with an email addressed to “Anushika Anthony” with no email address shown, stating “See self explanatory letter attached.” The Defendants argue that there is no evidence to confirm that the email was sent to Ms. Anthony as there is no email address noted in the body, nor is there proof that the letter advising of the caution was the letter that was attached. Further, they say, that since the Property had closed, Ms. Anthony was not representing them in any official capacity at the time the letter was sent. As a result, the Defendants argue they did not receive proper notice of the Caution. Whether proper notice of the Caution was given is disputed on this motion.
23There appears to be a Third Party claim issued by Lelen against his real estate agent, Ragu Paramsothy, dated October 24, 2025. However, this appears to remain undefended and neither party raised any submissions in relation to that action.
Legal Framework for a CPL
24A CPL may be obtained by order of the court under rule 42.01 of the Rules of Civil Procedure and section 103 of the Courts of Justice Act. The jurisprudence is clear that test on a motion to issue or discharge a CPL is the same: Homebuilder Inc. v. Man-Sonic Industries Inc., 1987 CarswellOnt 499, at para. 1.
25To obtain a CPL the threshold question to decide is whether the plaintiff has a reasonable claim to an interest in the subject lands. This requires a plaintiff to demonstrate that there is a triable issue with respect to the claimed interest (see Persaud v. Ramawad, 2021 ONSC 5888 at para. 77). The court is not to assess credibility or decide disputed issues of fact: Pauwa North America Development Group Co. Ltd. v. Skyline Port McNicoll (Development) Inc., 2021 ONSC 18 at para. 38.
26If the threshold question is satisfied, the Court will then consider all relevant matters and make a determination, in equity, as to whether or not it will issue the CPL. In considering the equities, the Courts look to the factors outlined in 572383 Ontario Inc. v. Dhunna (1987), 24 C.P.C. (2d) 287 (“the Dhunna factors”).
27Nandita contends that, although she assigned her interests in the APS to Lelen, and thus has no direct interest in the Property, she retained an interest in the Property by way of a resulting trust or constructive trust. The Defendants dispute that there is a triable issue with respect to whether the Plaintiff has an interest in the land, or that the equities are in favour of the issuance of a CPL.
There is no resulting trust in favour of Nandita
28Nandita argues that because she contributed part of the purchase price for the Property, a resulting trust therefore arises to the extent of her contribution. She further states that she never forfeited her entire interest in the Property as she remained liable to Solmar under the original APS if Lelen were to default.
29Nandita relies on Cambone v. Okoakih, 2016 ONSC 792 for the proposition that “where the funds to purchase a property are provided by one party, but the asset is placed in the name of the another,” a resulting trust can arise. Where there is more than one contributor to the purchase price, it is presumed that the trust is in favour for all of them (Cambone, supra, at paras 172-173).
30The Defendants dispute that the facts give rise to a resulting trust and assert that the claim is, at its core, a contractual dispute. They argue that the deposit paid to Nandita under the Assignment Agreement exceeded the amount of her original deposit under the APS. Having been reimbursed the full value of her initial deposit, and more, they contend that her funds can no longer be characterized as a contribution toward the purchase of the Property that would give rise to a resulting trust (see Cambone, supra, at paras. 175-176).
31A resulting trust can arise where property is gratuitously transferred from one person to another without any consideration or where a person supplies the entire purchase price for the property, but title is taken in another person’s name (see: Syrnyk v. Syrnyk, 2019 ONSC 225 at para 15, quoting from Pecore v. Pecore, 2007 SCC 17 at paras. 20 and 24). In Pecore, the Supreme Court of Canada stated that a “resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner” (para. 20). The presumption of a resulting trust applies to gratuitous transfers (para. 24).
32In my view, Nandita’s claim to a resulting trust fails at the outset. In her submissions, Nandita acknowledged that the purchase price agree to in the Assignment Agreement was to be in exchange for her interest in the property. There was no gratuitous transfer here. There was consideration. The parties dealt with one another at arm’s length, in a commercial context.
33As expressly stated in both the Assignment Agreement and the Solmar Assignment Agreement, Nandita transferred all rights, title and interest under the APS, including rights to the deposits, in exchange for consideration. Once that occurred, her earlier deposits to Solmar could no longer be characterized as funds intended for her purchase of the Property. To conclude otherwise would be inconsistent with the language and purpose of those agreements.
34While Lelen did not pay the balance owing under the Assignment Agreement, Nandita made no further contribution to the Property after the assignment. It is significant that Nandita did not follow up on her stated intention to complete the APS in the event of Lelen’s default, consistent with the intention of relinquishing all rights to the APS.
There is no constructive trust in favour of Nandita
35A constructive trust is often applied to prevent unjust enrichment, which arises when there has been enrichment of one party, corresponding deprivation to another, and no juristic reason for the enrichment and corresponding deprivation (Cambone, supra, para. 174).
36Nandita argues that without her payment of the deposits, the Defendants would not have been able to complete the purchase of the Property at the price set in the APS. Further, she argues that the Defendants have been enriched as they have been able to retain the Property and have all the rights and benefits as an owner, despite not paying her the remainder of the agreement.
37Nandita argues that her deprivation arises from the payment of funds to Solmar, including the opportunity cost of having those funds tied up for years, without interest. She also relies on the remainder of the Assignment Agreement funds not being paid to her as further evidence of deprivation. She maintains that she would have taken over the APS herself, or assigned it to someone else, had she known that Lelen would default on his obligations under the Assignment Agreement.
38Nandita submits that there is no juristic reason for her deprivation and the Defendants’ enrichment.
39The Defendants argue that Nandita’s deposits to Solmar were made prior to their involvement. They state that she paid those funds on her own behalf, and perhaps well before contemplating that she would assign the APS to someone else. They say that her deprivation, if any, had nothing to do with them. They state that the Assignment Agreement reflects a clear, juristic reason for Nandita’s deprivation and any enrichment on their part. They claim that it was a reasonable commercial transaction with appropriate consideration flowing both ways. They state that the right to purchase the Property was irrevocably transferred to them in that agreement, and there was no clause preserving Nandita’s right to title if the assignment price was not fully paid.
40The Defendants further argue that Nandita had a year from the time she was first advised of Lelen’s intention to terminate the agreement to negotiate a reassignment of the APS back to herself. Therefore, they submit, had she genuinely wished to take over the APS, she had ample opportunity to do so. In their view, it is therefore not credible for Nandita to now assert deprivation based on her alleged inability to purchase the Property when she did nothing to take back the APS herself.
41For recovery in unjust enrichment, something must be given by the plaintiff and received and retained by the defendant without juristic reason: Kerr v. Baranow, 2011 SCC 10 at para. 31. Juristic reasons can include a contract: Kerr, at para. 41.
42I agree with the Defendants that there is juristic reason for the Plaintiff’s deprivation and the Defendants’ enrichment here. Nandita and Lelen entered into a binding contract with consideration flowing between the two sides. Clause 1 of the Solmar Assignment Agreement confirms that any claim to title by Nandita was extinguished upon assignment. There is no provision reverting any interest to Nandita upon default, nor was Lelen restricted from further assignment (apart from the requirement in the APS to obtain express consent from Solmar, which was not argued by either side in this motion).
43Accordingly, for the purposes of this motion, I find that there is no triable issue as to whether the Plaintiff has an interest in the land either by way of a resulting trust or constructive trust.
44Having found no triable issue as to a proprietary interest in the Property, I need not consider the Dhunna factors. However, they are considered below, in the discussion of balance of convenience.
Fraudulent conveyance
45The Plaintiff argues that since her claim includes a claim of fraudulent conveyance of the Property from Lelen to his parents, there is a triable issue respecting the fraudulent nature of that conveyance, and that the balance of convenience weighs in her favour for the granting of a CPL.
46The Defendants dispute that there was any fraudulent intent behind the transfer to Lelen’s parents. They argue that in any case, a CPL would be overreach, as the underlying claim involves a claim for damages for breach of contract. They further argue that security is available and would be a more proportionate remedy. The suggestion of security as an alternate remedy was not addressed by the Plaintiff in her materials or submissions.
47Courts have long recognized that actions to set aside an alleged fraudulent conveyance of land inherently involve claims in which an interest in land is brought into question, even if a plaintiff has not established interest in the relevant land: Abu-Saud v. Abu-Saud et al., 2023 ONSC 6199 at para. 17. Fraudulent conveyance claims can support a claim for a CPL but do not create an interest in land on the part of the claimant: Claireville Holdings Limited v. Botiuk, 2014 ONSC 6505.
Two different tests
48At paragraphs 10 – 11 of The United States Securities and Exchange Commission v. Boock, 2010 ONSC 2340 (“Boock”), the late Associate Justice Muir1 identified two different tests to consider in determining whether to grant a CPL in a fraudulent conveyance action. He stated:
[10] The first arises from the decisions of this court in Vettese v. Fleming, 1992 CarswellOnt 454 (G.D.) and Nordic Insurance Co. of Canada v. Harkness, [2001] O.J. No. 1123 (S.C.J.). Those cases articulate the test as requiring the motion court to find, on the evidence before it, a prima facie case of fraud and that a trial judge could conclude that the impugned transfer was made with the intention to defeat the creditors and for no real consideration.
[11] In Grefford v. Fielding, 2004 8709 (ON SC), [2004] O.J. No. 1210 (S.C.J.) this court set out a somewhat different test, namely that the moving plaintiff must satisfy the court that its claim has a high probability of success; that the transfer was made with the intent to defeat or delay creditors (evidence that the transfer was for less than fair market value lightens this burden); and that the balance of convenience favours the issuing of a CPL in the circumstances.[11] See Grefford at paragraph 26.
49A.J. Muir did not resolve the conflict between the two tests because he found that the plaintiff had met its burden under both tests. This matter was appealed to the Divisional Court at 2010 CarswellOnt 8398 wherein Harvison Young J. disagreed that the two tests were divergent. She ultimately found that A.J. Muir made no error in law.
50In my view, the jurisprudence does reflect two formulations of the test in fraudulent conveyance cases. The divergence needs to be resolved, in my view, because the test laid out in Vettese has a very low bar compared to the test from Grefford. In the Vettese test the plaintiff need only establish a prima facie case of fraud. On the other hand, the three-part test from Grefford is arguably more restrictive, with a higher onus.
51Cases where both tests have been acknowledged often result in a finding that the moving party has satisfied both tests: see Xerox Canada Ltd. v. Baba Publications Inc., 2008 CarswellOnt 385 (“Baba”), Optrust East Industrial Inc. v. Sykes, 2010 ONSC 6989, Fernandes v. Khalid, 2021 ONSC 190, and Business Development Bank of Canada v. Yin, 2023 ONSC 6159.
52In Baba, Associate Justice Glustein (as he then was) aptly noted that the two lines of authority often failed to consider the opposite, at para. 25. He noted that there was only one decision to consider both lines of authority: Xerox Canada v. Sterling [2006] CarswellOnt 9491 wherein the Associate Judge decided to follow the lower threshold in Vettese by applying the “prima facie” test. The Associate Judge did, however, consider the balance of convenience between the parties which does not appear to form part of the Vettese test.
53In that the Vettese test fails to consider the balance of convenience between the parties, Justice Papageorgiou has made it clear that it is to form part of the test, in Nedaneg Financial Corporation v. Talebzadeh, 2025 ONSC 848 at paras. 23-26. Papageorgiou J. held that consideration of equitable factors and balance of convenience still apply in cases of fraudulent conveyance, as held by the Divisional Court in Claireville Holdings Ltd. v. Botiuk, 2015 ONSC 694.
54While Papageorgiou J. held that the test was one of a “prima facie” case of fraud, it is important to distinguish Nedaneg as it involved a claim for beneficial ownership in properties held by a judgment debtor.
55I have not located any authority that definitively resolves the conflict between whether a moving party in a fraudulent conveyance case must demonstrate a “prima facie” case of fraud or whether, instead, the higher standard of a “high probability of success” applies, particularly in circumstances where the plaintiff is not yet a judgment creditor or asserts no independent interest in the land that is the subject of the alleged fraudulent conveyance. While there is ample jurisprudence supporting both approaches, I agree with Associate Justice Glustein in Xerox that many of these decisions do not engage with, or explain, why the alternative line of authority was not adopted.
56Courts have recognized the inherent prejudice a CPL imposes on owners. In Grefford, R. Smith J. expressed concern that, where the underlying action does not itself advance a claim to an interest in the land alleged to have been fraudulently transferred, a low threshold for issuing a CPL would effectively allow any plaintiff to obtain security for a damages claim before judgment. As he observed, at para. 26-27:
“[if]a claimant only needed to raise a triable issue to obtain a CPL, where no interest in land was claimed in the main action, then any claimant (potential creditor) would be able to obtain security for a claim for damages, prior to obtaining judgment, without the merits of his or her claim in the main action being considered by a court.”
57Thus, R. Smith J. sought to impose a higher burden on a moving party where the underlying action did not concern an interest in the land at issue and where the plaintiff is not yet a judgment creditor. That reasoning is sound. Given the potential hardship a CPL can impose, a court must exercise its discretion with care. As has been recognized, a CPL can operate with the same practical force as an interlocutory injunction in restraining dealings with the property because, as a general matter, it is treated as an encumbrance on title: G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 6832 (ON CA), [2002] O.J. No. 282 (Ont. C.A.) at paras. 15-16.
58Here, the Plaintiff does not have an underlying interest in the Property and her claim, at least under the fraudulent conveyance allegation, is to set aside the transfer of the Property from Lelen to his parents, to allow her access to an asset in the event of judgment. She is not yet a judgment creditor. Accordingly, given the intrusive nature of a CPL and the equitable discretion involved, I adopt Grefford as the applicable framework in this case, consistent with Jodi L. Feldman v. Foulidis, 2018 ONSC 7766, at paras. 10-12.
1) The Plaintiff has a high probably of obtaining Judgment in the main action
59The evidentiary record supports a strong likelihood of success against Lelen for the unpaid balance of the Assignment Agreement. Insofar as the Plaintiff’s motion seeks to set aside the transfer of property to Hewa and Pramila, I need not consider whether there is a high probability of success against them for inducing a breach of contract, as the focus here is in putting the asset back into Lelen’s name for the purpose of recovery.
2) There is a triable issue with respect to an intention to defeat or delay creditors
60The second element of the Grefford test presents a lower bar for the plaintiff than the first: Judah Holding Ltd. v. Chekhter, 2025 ONSC 6203 at para. 16. A moving party must lead evidence demonstrate a triable issue that the impugned transaction was carried out with the intent to defeat or delay creditors, including the plaintiff: Tibollo v. Robinson, 2023 ONSC 3492 (Div. Ct.) at para. 21.
61Nandita argues that the transfer of the intended ownership of the Property from Lelen to his parents was done to avoid paying her the second deposit owing under the Assignment Agreement, and to insulate himself from a foreseeable judgment, which he knew or ought to have known would likely result from his conduct.
62Nandita submits that to show evidence that a transaction was made with the intent to defeat and delay creditors, evidence of “badges of fraud” creates at least a presumption of fraud as recognized in Abu-Saud v. Abu-Saud et al., 2023 ONSC 6199. Notably, she points to the following:
a. The transaction was done in secret, near the time that payment would be due from Lelen to Nandita;
b. Lelen was in a precarious financial position and has no other assets to satisfy a Judgment in this action;
c. The transfer was made in the face of likely litigation;
d. The transfer was for no consideration;
e. There was evidence of haste as the transfer occurred shortly after Lelen requested a renegotiation of price;
f. The transfer was done in the context of a close (non-arm’s length) relationship between the parties to the transfer.
63The Defendants submit the assignment of the APS to Lelen’s parents was lawful and it was not done to defeat Nandita. They argue that Lelen was under no restriction in any of the agreements from assigning it to someone else. Therefore, they argue, there was no “secrecy” intended behind their conduct. They further point out any secrecy is negated by the evidence that Lelen had explicitly advised Nandita that he wished to terminate the Assignment Agreement and had invited her to have it reassigned with his offer of a re-assignment fee.
64In terms of other badges of fraud, the Defendants further state that there is no evidence in the record of Lelen’s financial position. I would add that there is also no evidence that there was no consideration for the transfer to his parents, although it is certainly an assumption that could reasonably be made given the facts.
65However, proof of one or more badges of fraud alone suffices to establish a prima facie case of fraud: Brookfield Residential (Ontario) Limited v. Chen, 2022 ONSC 1419 at para. 9. I find that most applicable to the case at hand is that the transfer was made to non-arm’s length parties, at or near the time that final payment was due to Nandita, and at a time and circumstance where litigation could reasonably be anticipated.
66Therefore, I agree with the Plaintiff that there is sufficient evidence raising a triable issue that the transfer was done with the intent to defeat or delay creditors.
3) The balance of convenience weighs against the granting of a CPL
67Neither party has filed any evidence of actual prejudice if a CPL were to be granted or refused. Nandita has advanced the argument that a sale of the Property could prevent her from recovering judgment. She submits that Lelen’s behaviour suggests he is in a precarious financial position. However, this is just conjecture. There is no evidence of his financial position on the materials filed.
68The onus is on the plaintiff to demonstrate that balance of convenience favours granting a CPL: Judah Holding, supra, at para. 21. Similar to the case before me, it was significant in Judah Holding that the plaintiff had not filed any evidence of any prejudice she might suffer if the CPL were to be denied, as she still remains a likely judgment creditor in the underlying action. She has also not filed any evidence of Lelen’s inability to satisfy a future Judgment, nor the impact of the loss of this one asset on her ability to collect on a future Judgment.
69On the record before me, I agree with Associate Justice Sugunasiri (as she then was) in Szymanski v. Lozinski, 2019 ONSC 6968 at para. 11, that “[t]he Plaintiff’s thin record fails to tip the balance in his favour.” Here, the Plaintiff has not tendered adequate evidence to satisfy her onus of showing that the balance of convenience would favour granting a CPL in this motion. I agree with A.J. Sugunasiri that the Plaintiff’s potential prejudice is no different from that faced by most unsecured creditors, who similarly bear ordinary collection risks. That prejudice is significantly less than the prejudice to the Defendants, who would be burdened with an encumbrance on their home
70The Plaintiff relies on N. and G. Lazos Building Contractors O.E. v. Kapsalis-Fragaki, 2025 ONSC 6251, where Associate Justice Wiebe found that the balance of convenience favoured a CPL where there was no argument on balance of convenience, the property was unencumbered, and there was no attempt to deal with the property that would disturb the status quo.
71The Plaintiff submits that the same reasoning in N. and G. should apply in the case at hand, as there is no evidence of any actual prejudice to the Defendants if the CPL is granted. While this may be true, there is also no evidence of actual prejudice to the Plaintiff if the CPL is not granted. In N. and G., there was already a judgment in Greece. With the onus of proof resting with the Plaintiff, I am not prepared to find that the absence of evidence means that the Plaintiff has met her onus of showing the balance of convenience tips in her favour (see Tibollo, supra, at para. 27). Indeed, Courts have held that there is “presumptive prejudice from a CPL, which will prevent financing, other encumbrance, and sale of the property” (see 2730453 Ontario Inc. v. 2380673 Ontario Inc., 2021 ONSC 6370 at para. 38).
72The Plaintiff submits that it is open for the Court to consider the equities between the parties in determining balance of convenience, as stated by Diamond J. in Jodi L. Feldman, supra, at para. 25. In determining the equities between the parties, Courts often refer to the factors enunciated in Dhunna, supra, often referred to as the “Dhunna factors.”
73The Plaintiff relies on Bell v. Gerbac, 2024 ONSC 2846 for the proposition that where there was no evidence that the defendant had any other assets, and no evidence that a CPL would prejudice the defendants, the equities weighed in favour of granting a CPL.
74However, the court in Bell, supra, did not consider the Dhunna factors, and the defendants did not respond to the CPL motion at all. Two of the defendants were noted in default.
75In my view, it would be beneficial to the exercise of my discretion to examine the equities between the parties by assessing the Dhunna factors, as outlined as follows:
a. Whether the plaintiff is a shell corporation. This is relevant to the ability of a moving party to compensate a defendant for any losses that might result by granting a CPL;
b. Whether the land is unique;
c. The intent of the parties in acquiring the land;
d. Whether there is an alternative claim to damages;
e. The ease of calculating damages;
f. Whether damages would be a satisfactory remedy;
g. The presence, or absence, of another willing purchaser; and,
h. The balance of convenience.
76The Plaintiff submits that she is not a shell corporation. I agree that this factor weighs in favour of a CPL, although there has been no undertaking as to damages. As such, it is not a significant factor in my analysis.
77The Plaintiff claims that the property is unique to her. In her factum, she relies on the fact that the condo is newly built, and that she specifically chose it for its specific qualities of land and building. This is not in the evidence. There is no evidence of uniqueness at all.
78Moreover, uniqueness in the context of fraudulent conveyance is irrelevant, as the Plaintiff is seeking to have the property vest in Lelen’s name so that she can execute upon it (see Nedaneg, supra, at para. 94). Accordingly, this does not assist the Plaintiff here.
79With reference to the intent of the parties in acquiring the Property, Nandita has not advanced an argument on this factor. However, the Defendants submit that Nandita initially intended to purchase the Property as a residence for her son, but that purpose was no longer required. Accordingly, they state there could be no intrinsic value to the purchase for which adequate monetary compensation cannot be given: see Tru-Style Designs Inc. v. Greymac Properties Inc., (1986) 1986 2856 (ON HCJ), 56 O.R. (2d) 462 at para. 50. This factor weighs against a CPL here.
80As to whether there is alternative relief available in the form of damages, the Defendants submit that damages are claimed as the primary source of relief in this action and that they are an adequate remedy. They rely on Nabizadeh v. Manifar, 2015 ONSC 5503, followed by Trimble J. in Cosentino v. Alilovic, 2020 ONSC 1050 (at para. 112) for the proposition that 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.”
81While the statement made by Associate Justice Muir in Nabizadeh and followed by Trimble J. in Cosentino are informative under the traditional test for a CPL, the jurisprudence reflects a different approach when there is a concern for a fraudulent conveyance. As Papageorgiou J. stated in Nedaneg, supra, an “understanding of the underlying facts and evidence is critical to the assessment of the equities and balance of convenience where a judgment creditor alleges a scheme to place assets beyond the reach of the creditor, because such conduct is inequitable in itself” (at para. 33). I therefore do not interpret A.J. Muir’s statement to say that CPL’s cannot be used as remedy to secure damages in cases of fraudulent conveyance. However, the court must still assess whether damages are an adequate remedy considering all of the evidence.
82The Defendants argued damages would be very easily calculated as they are the amounts owing to Nandita under the Assignment Agreement. Furthermore, they argue that damages would be a satisfactory remedy to Nandita especially considering her stated intention in assigning the APS as pled in the Statement of Claim.
83Adequacy of damages being an appropriate remedy was recently found to be persuasive by Kaufman J. in Binio v. Kotarak, 2026 ONSC 7330. In that case, a CPL was refused, even though the Plaintiff had contributed toward the purchase price of the property and claimed to have made substantial renovations and improvements to the property.
84Here, the Plaintiff has not disputed that damages would be an adequate remedy. She merely relies on speculation that she will be unable to recover Judgment if the CPL is not granted. I agree with the Defendants that, in absence of evidence of the Defendants’ inability to satisfy a judgment, damages would be a satisfactory remedy. This factor weighs against granting a CPL.
85Nandita points out that there is no evidence that the Defendants would lose out on a prospective purchaser. This weighs in favour of a CPL. However, alternatively, there is no evidence of an impending sale, such as to bring the Property completely out of reach to the Plaintiff, as was the concern of Associate Justice Kamal in Wang et al v. Jazzar Holdings Inc. et al, 2025 ONSC where the property was listed for sale. Accordingly, I find this to be a neutral factor.
86Next, Nandita claims that the relative harm to the parties weighs in favour of a CPL, as she submits that there is no evidence of any harm to the Defendants if a CPL were to be granted, and that the comparative harm to her is greater if a CPL were to be denied.
87However, at the risk of sounding repetitive, there is no evidence of the Defendants’ financial circumstances that would permit the Court to assess whether the alleged risk of an unsatisfied Judgment is real or speculative. On the other hand, the impact of granting a CPL effectively acts like an injunction: Meibodi v. Aghaiemeybodi, 2024 ONSC 340 at paras. 21-22. If a CPL were granted, it would allow the Plaintiff to obtain injunctive relief without bringing an injunction application. In all the circumstances, the harm and inconvenience of granting a CPL would be greater to the Defendants than the Plaintiff.
88Further, the Defendants argue that the improper registration of the caution on title was an abuse of process such that this should weigh against a CPL. The issue of the validity of the caution was not fully briefed in the materials so I cannot make a comment on its propriety here.
89Lastly, both parties argued that the other had engaged in false accusations or false evidence that should be used against them when considering the balance of convenience or the equities of the case. Considering that there are concerns raised by each side, I find this to be neutral.
90Overall, a consideration of the Dhunna factors weighs against a CPL. I accordingly find that the Plaintiff has failed to meet her onus of establishing that the balance of convenience favours the issuance of a CPL.
91I also reach this conclusion for two additional reasons. Firstly, Hewa and Pramila are Defendants to this action. A finding of liability against them would certainly enable the Plaintiff to recover against the Property as judgment creditor.
92Further, in assessing whether to exercise my discretion, it is material to consider that the availability of the Property was contingent upon any of the Defendants completing the purchase with Solmar. Hewa and Pramila were only afforded the right to purchase the Property, as was Lelen. The Defendants were under no obligation to complete the transaction and could have elected not to proceed at all. In these circumstances, the extent of harm asserted by the Plaintiff is materially attenuated. Had the Defendants declined to complete the purchase, this Property would not have been available for a CPL in any event. This undermines the necessity for, and equity of, the relief sought, and it further supports my conclusion on the balance of convenience.
93The Grefford test is a conjunctive test. Having found that the Plaintiff has failed to satisfy the balance of convenience section of the test, she therefore fails to meet the test for a CPL in the context of a fraudulent conveyance.
Disposition and costs
94The Plaintiff’s motion for leave to issue a CPL is dismissed.
95The Defendants were successful on the motion and are presumptively entitled to costs. Hewa and Pramila filed a Bill of Costs seeking $6,980.01 in partial indemnity fees. Lelen made oral submissions on costs and seeks $3,000.00.
96For comparison, the Plaintiff’s Bill of Costs seeks $10,960.44 in partial indemnity fees.
97Rule 57 of the Rules of the Civil Procedure, R.R.O., 1990, Reg, 195 sets out the factors for the Court to consider in exercising its discretion with respect to costs in accordance with s.131 of the Courts of Justice Act. Rule 57 lists the factors for the Court to consider, including “(d) the importances of the issues” and “(i) any other matter relevant to the question of costs.”
98The Defendants’ materials left a factual vacuum and consisted mainly of argument. This was unhelpful to the Court.
99In her factum, the Plaintiff has requested that costs of the motion be reserved to the final disposition of the matter. I agree that that is appropriate here. The importance of the issue on this motion bears directly on the Plaintiff’s ability to recover against Lelen, whereas the Defendants filed no evidence of an actual need to have the property be unencumbered.
100Accordingly, I am prepared to fix the costs of the motion at $8,000.00 inclusive of H.S.T, payable by the Plaintiff to the Defendants, Hewa and Pramila together, at $6,500.00, and to the Defendant, Lelen, at $1,500.00. However, I order that these costs be payable in any event of the cause; namely, upon final disposition of the action.
Released : February 27, 2026