KOMMINENI v GUGGILAM

The Applicant sought to set aside a certificate of lis pendens registered against her residential property by the Respondent (the “CLP”). The CLP was registered with respect to a costs award granted following a parenting dispute between the parties which occurred in Ontario and which was reciprocally enforced in Alberta. The Applicant alleged that the Judgment that resulted in the costs award was obtained by fraud, and as such should be set aside. However, contrary to Rule 13.6(3)(d), the Applicant did not plead fraud in the Application.

Rule 13.6(3) sets out that pleadings must include a statement of any matter on which a party intends to rely that may take another party by surprise, including allegations of fraud. Although the Applicant alleged in their submissions that the Respondent failed to be candid with the Ontario Courts during the initial dispute and that the judgment was obtained by fraud, this was not set out in her application materials nor her affidavit evidence.

In considering the Applicant’s materials and submissions and the fact the fraud was not specifically pled, Justice Sidnell ultimately held that the Applicant was not entitled to raise allegations of fraud in the Application. The Court further held that even if the Applicant were entitled to rely on allegations of fraud, they had failed to demonstrate that the underlying Judgment was obtained by fraud. The Application was dismissed.