Court File and Parties
CITATION: Sharpe v. Philips, 2026 ONSC 3491
MOTION HEARD: 20260528
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Andre Sharpe, Applicant
AND:
Kelechia Philips, Davaki Laud aka Randy H. Laud and Lavern Laud, Respondents
BEFORE: Associate Justice B. McAfee
COUNSEL: D. Frank, Counsel, for the Moving Party, the Applicant
Davaki Laud, In Person, Responding Party, the Respondent
No one else appearing
HEARD: May 28, 2026
REASONS FOR DECISION
[1]
Preliminary Issues
This is a motion brought by the applicant Andre Sharpe (Andre) pursuant to section 103 of the Courts of Justice Act, R.S.O. 1990, c.C.43 and Rule 42.01 of the Rules of Civil Procedure for an order for the issuance of a certificate of pending litigation (CPL) with respect to three properties:
(i) 137 Rainforest Drive, Brampton, Ontario (the Rainforest Property);
(ii) 57 Iron Block Drive, Brampton, Ontario (the Iron Block Property); and
(iii) 550 Webb Drive, Unit 13, Mississauga, Ontario (the Webb Property).
2Andre and the respondent Davaki Laud aka Randy H. Laud (Davaki) are brothers. The respondent Lavern Laud (Lavern) is Andre and Davaki’s mother. The respondent Kelechia Philips (Kelechia) was Davaki’s girlfriend at the relevant times and is now Davaki’s spouse. Davaki, Lavern and Kelechia are collectively referred to as the respondents.
[3]
Adjournment Request
At the return of the motion Davaki sought an adjournment, which was opposed by Andre. Davaki advised that the respondents retained a lawyer a few weeks prior to the return of the motion and that Davaki only learned on his was to court that morning that the lawyer would not be able to attend. I denied the adjournment request.
4No lawyer contacted moving counsel to advise that he had been retained on behalf of the respondents. No request for an adjournment was made before the return of the motion. The motion had already been adjourned once on a case conference that took place one month before the original return date of December 8, 2025 (see case conference endorsement dated November 4, 2025). While the previous request for an adjournment was made by Andre’s counsel, the request was made due to the failure of Davaki and Lavern to attend their cross-examinations. Kelechia attended her cross-examination, but it did not proceed. On the case conference, I ordered a new timetable, including further deadlines for conducting cross-examinations of all parties.
5The respondents did not upload any material to Case Center. The respondents did not deliver a factum or prepare a compendium contrary to my case conference endorsements dated August 15, 2025 and November 4, 2025. In advance of the motion, I was able to locate a copy Davaki’s affidavit sworn May 16, 2025, that had been filed on or about May 20, 2025. At the return of the motion, I asked moving counsel to provide me with copies of the affidavits of Kelechia and Lavern, which he did. I also permitted moving counsel to provide me with copies of the notice of application and fresh as amended notice of application that were not included in the motion material.
6Cross-examinations of the respondents were conducted. The respondents did not conduct a cross-examination of Andre.
[7]
Request to Strike Affidavits
Moving counsel asks that the affidavits of Davaki and Kelechia be struck and that little or no weight be given to the affidavit of Lavern. In support of this request, moving counsel submits that the respondents have not answered thirty undertakings contrary to my case conference order dated November 4, 2025. He also submits that the respondents have not answered thirty-five refusals and that Davaki left his cross-examination before it was completed.
8No undertakings have been answered. There has been no formal determination of the refusals given on the cross-examinations. Davaki submits that he left his cross-examination early because he was being asked questions about a trust agreement that he claims is false. In the circumstances of this case, I decline to exercise my discretion to strike the affidavits of Davaki and Kelechia in their entirety as requested. I will, however, consider these circumstances when determining the weight to be given to specific affidavit evidence of Davaki and Kelechia. The submissions on the motion did not satisfy me that these circumstances ought to affect the weight given to Lavern’s affidavit.
[9]
Background
On October 14, 2021, the notice of application was issued.
10On April 23, 2025, the notice of application was amended in the form of a fresh as amended notice of application now seeking a CPL against the Rainforest Property, the Iron Block Property and the Webb Property.
11In the fresh as amended notice of application Andre seeks, among other things, a declaration that he has an interest in and is co-owner of the Rainforest Property (para. 1(j) and (k) of the fresh as amended notice of application), an order setting aside the transfer of the Rainforest Property (para. 1(l) of the fresh as amended notice of application), a declaration that Kelechia holds an interest for a constructive trust for him in the Iron Block Property (para. 1(q) of the fresh as amended notice of application) and a declaration that Davaki holds an interest for a constructive trust for him in the Webb Property (para. 1(r) of the fresh as amended notice of application).
[12]
The Law
The applicable test on a motion for an order for a CPL is the same as that on a motion to discharge a CPL (Perruzza v. Spantone, 2010 ONSC 841 (Ont. S.C.J.) at para. 20). At paragraph 20, Master Glustein, as he then was, summarizes the legal principles as follows:
(i) The test on a motion for leave to issue a CPL made on notice to the defendants is the same as the test on motion to discharge a CPL (Homebuilder Inc. v. Man-Sonic Industries Inc., 1987 CarswellOnt 499 (S.C. – Mast.) (“Homebuilder”) at para. 1);
(ii) The threshold in respect of the “interest in land” issue in a motion respecting a CPL (as that factor is set out at section 103(6) of the Courts of Justice Act, R.S.O. 1990, c.C.43) is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed (1152939 Ontario Ltd. v. 2055835 Ontario Ltd., 2007 CarswellOnt 756 (Ont. S.C.J.), as per van Rensburg J., citing Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen. Div. - Comm. List) at para. 62);
(iii) 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 has “a reasonable claim to the interest in the land claimed” (G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 6832 (ON CA), 2002 CarswellOnt 219 (C.A.) at para. 20);
(iv) Factors the court can consider on a motion to discharge 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 removed with or without security (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (S.C. - Master) at paras. 10-18); and
(v) 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 or vacated (931473 Ontario Ltd. v. Coldwell Banker Canada Inc., 1991 CarswellOnt 460 (Gen. Div.); Clock Investments Ltd. v. Hardwood Estates Ltd., 1977 1414 (ON HCJ), 1977 CarswellOnt 1026 (Div. Ct) at para. 9).
13The threshold of whether there is a triable issue as to an interest in land is a low one (2730453 Ontario Inc. v. 2380673 Ontario Inc., 2021 ONSC 6370 (Ont. S.C.J.) at para. 7).
14According to Andre’s affidavit evidence, on July 27, 2007, Andre, Davaki and Kelechia entered into a written trust agreement with respect to the Rainforest Property. Andre and Kelechia were the beneficiaries and Kelechia was the trustee. Kelechia was to be the sole registered owner in her capacity of trustee and would have no ownership or beneficial rights in the Rainforest Property. Kelechia was to account for any expenses or income proceeds and advise of any transactions regarding the Rainforest Property.
15On July 30, 2007, the Rainforest Property was transferred to Kelechia.
16According to Andre’s affidavit evidence, in or around March 2020, he became aware that Kelechia mortgaged the Rainforest Property multiple times and that Kelechia had transferred the Rainforest Property to Davaki and Lavern. Andre’s affidavit refers to the discovery of six mortgages between 2007 and 2018. Andre’s factum refers to the discovery of five mortgages registered against the Rainforest Property between 2011 and 2018. Andre also became aware that on February 27 2020, Kelechia transferred the Rainforest Property to Davaki and Lavern. Andre’s evidence is that he was not advised of the transfer and did not agree to the transfer.
17According to Andre’s affidavit evidence, in or around June 2020, he discovered that Kelechia, along with two other persons, purchased the Iron Block property on or about April 30, 2018, using funds from the mortgages on the Rainforest Property.
18According to Andre’s affidavit evidence, in or around June 2020, he discovered that Davaki purchased the Webb property on or about May 7, 2019, using funds from the mortgages on the Rainforest Property.
19According to Davaki’s affidavit evidence, Andre received funds from the Rainforest Property in 2011. Davaki’s evidence is that Andre has already received more than his initial downpayment. Andre has not upheld his obligations with respect to the Rainforest Property and has not made any mortgage payments.
20In his affidavit Davaki confirms that Andre was not informed of the transfer of the Rainforest Property due to Andre’s decision to vacate the Rainforest Property.
21Davaki argues that the trust agreement is fraudulent. Davaki’s affidavit states that there is another document that accurately outlines the facts, but no such document is before me.
22To the extent that the respondents take the position that trust agreement was only valid for one year after which Kelechia was free to do what she wanted with the Rainforest Property, I was not referred to any such clause in the trust agreement.
23Davaki’s affidavit states that no funds from the mortgages on the Rainforest Property were used to acquire the Iron Block Property or the Webb Property.
24Kelechia’s affidavit states, among other things, that in 2011 Andre received funds from the equity in the Rainforest Property which have not been repaid. Kelechia’s affidavit also states that Andre has not contributed financially to the mortgage or expenses for the Rainforest Property.
25Lavern’s affidavit states, among other things, that the Rainforest Property was refinanced in 2011 to provide funds to Andre for legal fees. Lavern’s affidavit states that no funds from the second mortgages on the Rainforest Property were used to purchase the Webb property.
[26]
Analysis
For the purposes of this motion, I am satisfied that the low threshold of a triable issue with respect to Andre’s interest in the Rainforest Property has been met based on the terms of the written trust agreement dated July 27, 2027. To the extent that there are issues regarding the validity of the trust agreement, that is not an issue appropriately resolved on a motion of this nature.
27For the purposes of this motion, the low threshold of a triable issue with respect to Andre’s interest in the Webb property has been met based on Andre’s evidence is that it is his belief that Davaki purchased the Webb property using the funds afforded to him and or Kelechia from the charges on the Rainforest Property. Andre was not cross-examined.
28Davaki and Kelechia refused to answer certain relevant questions on their cross-examinations with respect to charges on the Rainforest Property and what the mortgage funds were used for (Davaki’s cross-examination at Q. 175-185; Kelechia’s cross-examination at Q. 304). Davaki has also not answered undertakings regarding an accounting of what the mortgage funds were used for (Davaki’s cross-examination at Q. 324, 336, 340, 344). While certain questions are noted to be undertakings in the transcript of Kelechia’s cross-examination, it is not clear from the record if undertakings were in fact given (see for example Q. 305, 308, 311, 324). Kelechia did provide an undertaking regarding the use of mortgage funds at Q. 322, that has not been answered.
29With respect to the Webb property, I give little weight to the affidavit evidence of Davaki that no funds from the charges on the Rainforest property were used to purchase the Webb Property. This is based on Davaki’s unanswered undertakings and refusals regarding the use of the mortgage funds and leaving his cross-examination before it was completed. In any event, even if more weight was to be given to this evidence, there would remain a conflict in the evidence regarding the use of funds from the mortgages that I would not be in a position to resolve on this motion.
30I was not referred to the affidavit evidence of Kelechia concerning use of the mortgage funds in relation to the Webb property.
31With respect to Lavern’s affidavit evidence that no funds from the second mortgages on the Rainforest Property were used to purchase the Webb Property, this evidence conflicts with the evidence of Andre, a conflict that cannot be resolved on this motion.
32With respect to the Rainforest Property and the Webb Property, I have also considered the equities. Andre is not a shell corporation. I was referred to no evidence regarding the uniqueness of the properties. The intent of the parties in acquiring the Rainforest Property is set out in the trust agreement, the validity of which is at issue. There is an alternative claim for payment of Andre’s share of the sale proceeds from the transfer of the Rainforest Property together with appreciation. There is also a claim for an order for partition and sale of the Rainforest Property and the Webb Property. I was referred to no evidence regarding a willing purchaser. Absent the CPL on the Rainforest Property there may be further transmissions of interest or further dissipation without regard to Andre’s trust allegations.
33Having regard to all the circumstances, while not all Dhunna factors favour Andre’s position on this motion, it is just and equitable that the motion be granted with respect to the Rainforest and Webb properties.
34With respect to the Iron Block property, this property is owned by Kelechia but is also owned by two other persons who are not parties to the application and who have not been given notice of this motion. I decline to exercise my discretion to order the issuance of a CPL with respect to the Iron Block property in the circumstances. The motion for an order for the issuance of a CPL with respect to the Iron Block property is dismissed.
[35]
Costs
If successful on this motion, Andre seeks costs on a full indemnity basis in the amount of $37,888.91 and, in the alternative, seeks costs on a substantial indemnity basis in the amount of $34,530.10. If successful in opposing the motion, Davaki seeks costs in the amount of $7,500.00. Liability and credibility are at issue in the application. Having regard to all the circumstances before me, I am satisfied that it is just to reserve the issue of costs to the Judge hearing the application or Judge hearing any motion determining the application or as may be directed by the Judge.
[36]
Disposition
Order to go in form of order attached and signed by me as amended.
Associate Justice B. McAfee
Date: June 15, 2026