Mobina Basiri

The applicants, Zoranna Drumonde and Nicholas Spellay, sought the removal of their sister, Rosalie Spellay, as estate trustee and the sale of the family cottage left by their late mother, Rose Anne Spellay.

The court interpreted the will, which intended the cottage to remain in the family, and found that the property should be treated as held in joint tenancy among the surviving siblings.

The court held that the applicants could force a sale under the Partition Act, and that the opt-out clause for a $5,000 buyout was a one-time option that had expired.

The court ordered the property to be listed for sale, with proceeds to be divided unequally in recognition of Rosalie Spellay’s contributions, and left costs to each party.

In supplementary reasons, the Court of Appeal addressed an error in the application judge's formal judgments regarding the continuation of a right of survivorship after a joint tenancy was severed into a tenancy in common.

The court granted the respondent leave to cross-appeal without a formal notice, varied the judgments to extinguish the right of survivorship, and issued a vesting order transferring 100% of the beneficial interest in the property to the respondent as the beneficiary of a resulting trust.

This appeal concerned the effect of two gratuitous transfers of property into joint tenancy.

Nigel Jackson transferred his home into joint tenancy with Lori Rosenberg, intending to gift only a right of survivorship to avoid probate fees, while retaining control during his lifetime.

Later, he severed the joint tenancy.

The application judge found a partial resulting trust, concluding that only the right of survivorship was gifted and that Jackson retained the right to sever.

Rosenberg appealed, arguing for a full beneficial interest and that the severance was ineffective.

The Court of Appeal dismissed Rosenberg's appeal, affirming that a gift of a right of survivorship can exist without immediate beneficial rights and that the donor retains the unilateral right to sever the joint tenancy, thereby ending the right of survivorship.

The court also clarified that no right of survivorship could subsist after severance.

This decision concerns consolidated applications regarding a failed assignment agreement for a pre-construction condominium unit.

The assignees (Trinh) sought the return of their deposit, arguing the agreement was null and void due to the assignor's (2627641 Ontario Inc.) failure to obtain the vendor's consent within the stipulated time.

The assignor counter-argued that the assignees breached the agreement by failing to pay a final deposit, which they claimed was a prerequisite for vendor consent.

The court found that the assignees were not required to pay the final deposit without the vendor's acceptance of the assignment and that the assignor failed to provide clear information regarding uncapped development charges, which was a condition for the assignees.

The court concluded that the assignment agreement became null and void due to the assignor's failure to secure vendor approval, entitling the assignees to the return of their deposit and costs.

Following a decision in which the applicant was successful, he sought costs of $23,740 on a substantial indemnity basis, relying on a Rule 49 offer to settle.

The court found that because the respondent's retained interest in the property was contingent, it could not be definitively determined that the judgment was more favourable than the $25,000 offer.

The court awarded partial indemnity costs fixed at $17,400, noting the respondent failed to file any costs submissions despite extensions.

The applicant transferred his home into joint tenancy with the respondent, his deceased partner's great-niece, to avoid probate fees.

He later severed the joint tenancy and sought a declaration of resulting trust.

The respondent claimed the transfer was a gift and alleged a mutual will agreement.

The court found the applicant gifted the right of survivorship but retained all beneficial interest during his lifetime.

The court held the applicant was entitled to sever the joint tenancy, converting it to a tenancy in common.

The respondent holds her 50% interest on resulting trust for the applicant during his lifetime, but retains the right of survivorship for that 50% upon his death.

The mutual will claim was dismissed.

The applicants sought an order for the sale of a co-owned property under the Partition Act.

The respondent opposed the sale, arguing that there was a reasonable expectation among the parties to hold the property for at least two years as an investment and leisure property, and that the applicants' desire to sell amounted to oppression.

The court applied principles of oppression from corporate law, finding that "reasonable expectations" must be objective and contextual, not merely subjective wishes.

The court determined that the evidence did not establish an objective reasonable expectation to hold the property for a minimum period and found no oppressive conduct by the applicants.

Consequently, the court ordered the sale of the property and dismissed the respondent's cross-application and motion for an interim injunction.