Lawrence Avenue Group Ltd. et al. v. Innocan Realty Inc. et al., (1999) 93 O.T.C. 356 (GD)

• Judge: Lax, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: April 12, 1999
• Jurisdiction: Ontario
• Citations: (1999), 93 O.T.C. 356 (GD)

Lawrence Ave. Gp. v. Innocan Realty (1999), 93 O.T.C. 356 (GD)

MLB headnote and full text

Temp. Cite: [1999] O.T.C. TBEd. AP.061

Lawrence Avenue Group Limited and The Cartier Place Apartments Ltd. (plaintiffs/respondents) v. Innocan Realty Inc., Innocan Capital Inc., Innocan Inc., The Innocan Realty Fund, John Doe and others, being the Beneficiaries of the Innocan Realty Fund, Ryegate Capital Corporation and Donald Cameron (defendants/appellants)

(Court File No. 99-CV-162474)

Indexed As: Lawrence Avenue Group Ltd. et al. v. Innocan Realty Inc. et al.

Ontario Court of Justice

General Division

Lax, J.

April 12, 1999.

Summary:

The defendant Innocan Realty Fund held mortgages registered against the plaintiffs' properties. The mortgages were now the subject of power of sale proceedings. The plaintiffs commenced an action claiming damages, the right of set off, a declaration that they were no longer indebted to the defendants and an order discharging the mortgages. The basis for their claim was that the mortgages were given in circumstances of economic pressure and in breach of a co-venture profit sharing agreement between the plaintiffs and defendants. Upon a motion by the plaintiffs, a Master granted the plaintiffs leave to issue certificates of pending litigation on an interim basis with respect to the properties. The defendants appealed the Master's order.

The Ontario Court (General Division) allowed the appeal. The plaintiffs disputed the amounts owing under the mortgages and not their validity. They did not raise a triable issue that would give rise to an interest in title or land. Even if they did, the equities favoured Innocan where the land was not unique, the plaintiffs' claim was essentially a claim for damages and the plaintiffs were defaulting mortgagors who had not offered to redeem. The plaintiffs were not entitled to register certificates of pending litigation to interfere with the power of sale proceedings.

Real Property - Topic 7845

Title - Registration of instruments, etc. - Lis pendens - Authority to file - See paragraphs 1 to 17.

Cases Noticed:

Marleen Investments Ltd. v. McBride (1979), 23 O.R.(2d) 125 (Ont. H.C.), refd to. [para. 5].

McEvenue v. Robin Hood Multifoods Inc. et al. (1997), 34 O.T.C. 329; 33 O.R.(3d) 315 (Gen. Div.), refd to. [para. 5].

Homebuilder Inc. v. Man-Sonic Industries Inc. (1987), 22 C.P.C.(2nd) 39 (Ont. S.C. Master), refd to. [para. 6].

Sandhu v. Braebury Homes Corp. (1986), 8 C.P.C.(2d) 222 (Ont. H.C.), refd to. [para. 6].

Maletta v. Thiessen (1996), 90 O.A.C. 1; 28 O.R.(3d) 251 (Div. Ct.), refd to. [para. 9].

Eilpro Holdings v. Skenkman (1975), 8 O.R.(2d) 433 (Ont. C.A.), refd to. [para. 10].

Camlachie Building Consultants Inc. v. Fieldstone, [1979] O.J. No. 809 (C.A.), refd to. [para. 10].

515924 Ontario Ltd. v. Greymac Trust Co. et al. (1984), 45 C.P.C. 80 (Ont. H.C.), refd to. [para. 14].

Hirji v. Khimani (1978), 19 O.R.(2d) 750 (H.C), refd to. [para. 14].

Counsel:

N. Tourgis and M. Solomon, for the plaintiffs/respondents;

P. Healy, for the defendants/appellants.

This appeal was heard before Lax, J., of the Ontario Court (General Division), who released the following decision on April 12, 1999.