COURT OF APPEAL FOR ONTARIO
Paciocco, Monahan and Wilson JJ.A.
BETWEEN
Bill Allison
Applicant (Appellant)
and
Shantai C. Bent a.k.a Shantain Cassandra Bent and Shauna A. Bent a.k.a. Shauna Andrea Bent, Estate Trustees for the Estate of Vivette Andrea Walker
Respondents (Respondents)
Matthew Tubie and Joy Nwawe, for the appellant
Diane A. Vieira, for the respondent
Heard: January 15, 2025
On appeal from the order of Justice Lise G. Favreau of the Superior Court of Justice, dated April 11, 2022, with reasons reported at 2021 ONSC 6723.
REASONS FOR DECISION
1The appellant sought a declaration that he is the beneficial owner of a condominium (the “Condominium”) owned by the estate of Vivette Walker. The application judge dismissed the application on the basis that there was insufficient evidence to support any such beneficial interest.
2The appellant argues that the application judge erred since, in his view, the evidence was sufficient to establish the existence of either an express trust or a resulting trust in his favour.
3At the conclusion of oral submissions, we advised that the appeal was dismissed with reasons to follow. These are our reasons.
BACKGROUND FACTS
4In November 2010, Vivette Walker entered into an agreement to purchase the Condominium, which at that time had not yet been constructed. Ms. Walker was required to make several payments (the “Prepayments”) between the date of the execution of the agreement of purchase and sale and the closing of the transaction. The balance of the purchase price was financed by a mortgage on the Condominium taken out by Ms. Walker.
5The Prepayments were made and on November 10, 2015 the purchase of the Condominium closed. While Ms. Walker made the Prepayments by cheque, the appellant alleges that the money did not come from her.
6Unfortunately, Ms. Walker was diagnosed with terminal cancer in 2015 and died on October 8, 2016. In a handwritten will, she provided that her estate (including the Condominium) was to be divided equally between her four children, two of whom are the estate trustees and respondents on this appeal.
7Ms. Walker’s common-law partner was Donovan Bent. The appellant’s evidence is that he was a long-time close friend of Mr. Bent and that “both men were like brothers”. The appellant claims that although Ms. Walker was the legal owner of the Condominium it was originally intended that Mr. Bent would be the beneficial owner, and that Mr. Bent made the first three Prepayments.
8The appellant further claimed that it was subsequently agreed that he would become the beneficial owner of the Condominium and that, prior to her death, Ms. Walker signed a trust agreement prepared by his lawyer reflecting his beneficial ownership of the unit. The appellant stated that he made the final Prepayment due on closing, and then made the mortgage payments due on the property until 2018. He also rented out the Condominium and retained the rental income.
9The appellant’s position is that he is the beneficial owner of the Condominium either on the basis of an express trust or because of a purchase money resulting trust arising from gratuitous payments he claims to have made in relation to the Condominium.
APPLICATION JUDGE’S REASONS
10The application judge found that there was insufficient evidence to support the recognition of an express trust. The appellant was unable to produce the trust agreement that he claimed Ms. Walker had signed. Nor was there any trust agreement in the file of the lawyer whom the appellant claimed had prepared it. The appellant provided viva voce testimony regarding conversations between Ms. Walker and Mr. Bent regarding the trust that he alleged had been agreed to between them. But neither Mr. Bent nor Ms. Walker, the persons who allegedly made the statements, testified. Thus, according to the application judge the appellant’s evidence in this regard was inadmissible hearsay.
11The application judge concluded that there was evidently some agreement between these parties, but it was not clear what it was, and it was certainly not clear that it involved Ms. Walker holding the property in trust for the appellant. Accordingly, she found that the appellant had not met his onus of proving that there was an express trust in this case. In addition, even if there was an agreement that the appellant was the beneficial owner of the Condominium, the only evidence of such an agreement was the appellant’s oral evidence. Oral evidence alone is insufficient to create an interest in land, since s. 1(1) of the Statute of Frauds, R.S.O. 1990, c. S.19 requires proof of a written agreement to establish an interest in real property.
12Nor was the application judge satisfied that there was sufficient evidence to support a finding of a purchase money resulting trust based on gratuitous payments made by the appellant. The application judge accepted that the appellant had made mortgage payments, but he was at the same time collecting rent and there was evidence that the rental income exceeded the monthly mortgage payments. As such, the application judge was not persuaded that the mortgage payments made by the appellant could be characterized as gratuitous. As for the Prepayments, the application judge found that there was no credible evidence as to who had made them. Thus, the Prepayments could not support the existence of a purchase money resulting trust.
13The application judge therefore dismissed the appellant’s application for a declaration that he had a beneficial interest in the Condominium.
ANALYSIS
14The appellant argues that the application judge erred by failing to give effect to his “virtually uncontested” and “overwhelming” evidence in support of his claims. He argues that the application judge failed to give sufficient weight to the long-standing friendship and personal relationship he had with Mr. Bent and placed too much weight on the absence of any formal legal documentation regarding the alleged trust agreement.
15We do not agree. The application judge gave appropriate consideration to the appellant’s evidence. But because the appellant did not call Mr. Bent, and could not call Ms. Walker, his evidence regarding the trust agreement that he claimed had been agreed to by Ms. Walker and Mr. Bent was inadmissible hearsay. The appellant sought to rely on certain text messages to support his claim that Ms. Walker subsequently agreed to hold the Condominium in trust for him, as well as to satisfy the writing requirement of the Statute of Frauds. However, the application judge found that these text messages contain nothing more than vague references and a lack of denial by the respondents of the appellant’s alleged interest. Even if the text messages could satisfy the Statute of Frauds, they fell short of demonstrating the certainty required for an express trust in this case.1 Nor was there sufficient evidence in support of the appellant having made gratuitous payments in relation to the Condominium.
16The appellant has not identified any reversible error in the analysis of the application judge, but merely asks us to come to a different conclusion as to the sufficiency of the evidence in support of his beneficial interest in the Condominium.
17We decline to do so. The application judge’s findings are entitled to deference and are only reversible in the event of a palpable and overriding error. We see no error in her findings, much less a palpable and overriding one.
18The appeal is therefore dismissed.
19Although counsel for the appellant was prepared to agree to substantial indemnity costs, we see no basis for awarding costs on that elevated scale. We therefore award costs in favour of the respondent on a partial indemnity basis in the all-inclusive amount of $10,600.
“David M. Paciocco J.A.”
“P.J. Monahan J.A.”
“D.A. Wilson J.A.”
Footnotes
- The appellant also argued that an oral agreement was sufficient to establish an interest in land on the basis of s. 97 of the Courts of Justice Act, R.S.O. 1990, c. C-43. But this provision merely authorizes the court to issue declaratory relief in appropriate cases and does not modify or limit the requirement in s. 1(1) of the Statute of Frauds that interests in land can only be created in writing.