Court of Appeal for Ontario
Strathy C.J.O., Lauwers and Benotto JJ.A.
BETWEEN
Wyatt Gordon Stetler
Appellant
and
Connie Christine Stetler
Respondent
James A. Brown, for the appellant
Paul D. Amey, for the respondent
Heard: March 14, 2016
On appeal from the order of Justice Donald J. Gordon of the Superior Court of Justice, dated May 15, 2015, with reasons reported at 2015 ONSC 3014, [2015] O.J. No. 2499.
ENDORSEMENT
1In 1999, the appellant loaned $38,550 to his son. The loan was secured by a mortgage on the son’s home. Many years later, the son’s former spouse – the respondent – sought to sell the home to satisfy an equalization payment owing from their divorce. She sought a declaration that the mortgage in favour of the appellant was not binding on her and was not an encumbrance on the property.
2The application judge concluded that any claim by the appellant on the mortgage was statute barred and that the mortgage was not an encumbrance or charge on the property. The appellant seeks to overturn this decision.
3It was agreed before the application judge – and on appeal – that the applicable limitation period for the mortgage is ten years, as provided in s. 23 of the Real Property Limitations Act, R.S.O. 1990, c. L-15. The appellant submits, however, that the mortgagor (the respondent’s former husband) had acknowledged the debt. He argues that various acknowledgements engaged the exception in s. 23(1) of the Act and extended the limitation period. Section 23(1) provides:
No action shall be brought to recover out of any land or rent any sum of money secured by any mortgage or lien, or otherwise charged upon or payable out of the land or rent, or to recover any legacy, whether it is or is not charged upon land, but within ten years next after a present right to receive it accrued to some person capable of giving a discharge for, or release of it, unless in the meantime some part of the principal money or some interest thereon has been paid, or some acknowledgment in writing of the right thereto signed by the person by whom it is payable, or the person’s agent, has been given to the person entitled thereto or that person’s agent, and in such case no action shall be brought but within ten years after the payment or acknowledgment, or the last of the payments or acknowledgments if more than one, was made or given. [Emphasis added.]
4The application judge found that none of the documents relied on by the appellant met the criteria for a valid acknowledgement. The documents did not accurately set out the amount owing and one of the documents post-dated the expiration of the limitation period. We see no error in the application judge’s analysis.
5Before this court, the appellant sought to rely on fresh evidence to establish an acknowledgment of the debt within the limitation period. The fresh evidence is in the form of a Statutory Declaration by the appellant’s former lawyer; a Mortgage Loan Commitment, mortgage statements signed by the appellant, and receipts for two original documents purporting to postpone the mortgage dated March 2007 are attached.
6The fresh evidence does not meet the test for admissibility outlined in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. First, the evidence could have been adduced at trial. There was an interim order in the application requiring the appellant to produce his lawyer’s file. We were told that these documents were not produced due to an “administrative oversight.” This is not an acceptable explanation, particularly in the face of the disclosure order. On this basis alone, we would not admit the evidence. Second, the documents do not satisfy the criteria in s. 23(1) of the Act. There is no acknowledgement by the mortgagor to the appellant that the funds are owed. Therefore, there is no reason to conclude that the evidence could reasonably be expected to have affected the result.
7The appellant also argues that the application judge erred in not applying the doctrine of promissory estoppel. The appellant submits that he agreed to postpone his son’s obligation to pay the debt if his son helped him on his farm. The application judge rejected this submission. He determined that the evidence did not establish that there was a promise intended to affect the relationship and a corresponding reliance on the promise. It did not meet the requirements set out in Maracle v. Travellers Indemnity Co. of Canada, 1991 CanLII 58 (SCC), [1991] 2 S.C.R. 50, at pp. 57-58.
8We see no error in the application judge’s analysis. Moreover, we conclude that the appellant’s own conduct has disentitled him from claiming an equitable remedy. The application judge found that the appellant had acted in concert with his son to “negatively impact” the respondent and to “frustrate her legitimate right” to realize her equalization payment.
9The appeal is dismissed with costs payable to the respondent in the amount of $10,500, inclusive of disbursements and HST.
“G.R. Strathy C.J.O”
“P. Lauwers J.A.”
“M.L. Benotto J.A.”