COURT OF APPEAL FOR ONTARIO
van Rensburg, Zarnett and George JJ.A.
BETWEEN
Nigel Jackson
Applicant (Respondent)
and
Lori Rosenberg
Respondent (Appellant)
AND BETWEEN
Lori Rosenberg
Applicant (Appellant)
and
Nigel Jackson* and Nigel Jackson, Estate Trustee of the Estate of Bernard Taube
Respondents (Respondent*)
Mobina Basiri, for the appellant
Gosia Bawolska and Maneka Kaur, for the respondent
Heard: in writing
On appeal from the judgment of Justice Robert Charney of the Superior Court of Justice, dated July 28, 2023, with reasons reported at 2023 ONSC 4403.
SUPPLEMENTARY REASONS
Background
1In our decision released December 4, 2024, we dismissed Ms. Rosenberg’s appeal. We invited further submissions as to whether any changes to the formal judgments of the application judge were appropriate, given an error in his reasoning identified by both parties: Jackson v. Rosenberg, 2024 ONCA 875.
2The application judge found that the joint tenancy that had existed was validly severed and that Ms. Rosenberg’s interest as a tenant in common in the property was held on resulting trust for the respondent Mr. Jackson. He also held that a partial right of survivorship in Ms. Rosenberg’s favour still subsisted. These findings were all reflected in the formal judgments which provided, in relevant part, as follows:
THIS COURT ORDERS THAT Mr. Jackson’s severance of the joint tenancy of the property municipally known as 15 Potts Lane, Port Hope, Ontario, on September 9, 2020 is valid.
THIS COURT ORDERS THAT Ms. Rosenberg holds her 50% share of the property as a tenant in common on a resulting trust in favour of Mr. Jackson during his lifetime.
THIS COURT ORDERS THAT Mr. Jackson retains all rights and interests in the Port Hope property during his lifetime, and is free to encumber or sell the property.
THIS COURT ORDERS THAT when Mr. Jackson dies, his 50% share of whatever equity remains in the Port Hope property will become part of his Estate.
THIS COURT ORDERS THAT when Mr. Jackson dies, Ms. Rosenberg’s 50% share of whatever equity remains in the Port Hope property will pass to her through the right of survivorship. [Emphasis added.]
3Although Mr. Jackson had not formally cross-appealed, in his appeal factum he took issue with the aspects of the application judge’s decision which held that Ms. Rosenberg continued to have a right of survivorship over 50% of the property following the 2020 transfer that validly severed the joint tenancy and created a tenancy in common. He asked the court to clarify that her right of survivorship was completely extinguished when the joint tenancy was severed.1
4Ms. Rosenberg, in her appeal factum, contested the application judge’s conclusions that the joint tenancy had been validly severed and that she held her interest in trust for Mr. Jackson, but also submitted that it was inconsistent with case law and would cause confusion to hold, as the application judge did, that a right of survivorship could exist under a tenancy in common.2
5In our decision, we upheld all of the application judge’s findings except that a right of survivorship over 50% of the property continued after the joint tenancy was validly severed. We said, at paras. 66-67 of our decision, that:
Both parties submit that the application judge was wrong to conclude that the right of survivorship could continue in effect as to a 50% interest in the property if a joint tenancy ceased to exist. In Hansen Estate, at paras. 30-31, this court observed as follows:
Ultimately, the critical distinction between [a joint tenancy and a tenancy in common] … is the right of survivorship….
Through the right of survivorship, the interest of a co-owner in a joint tenancy will pass equally to all of the other co-owners upon his or her death. If multiple co-owners remain, the joint tenancy remains in existence, while if only one owner survives, the entire interest in the property passes to the survivor. In contrast, upon the death of a co-owner in a tenancy in common, the deceased’s interest in the property passes to his/her estate. [Emphasis added; internal citations omitted.]
Before the 2020 transfer, Ms. Rosenberg held her interest in the joint tenancy in trust for Mr. Jackson, and she had a right of survivorship. As the joint tenancy was severed in the 2020 transfer, what Ms. Rosenberg continued to hold was an interest in a tenancy in common in trust for Mr. Jackson. No right of survivorship could attach to or flow from that interest.
The Parties’ Further Submissions
6Mr. Jackson asks that paras. 2-4 of the formal judgments be revised, and that para. 5 be deleted and replaced with an order vesting 100% of the beneficial interest in the property in him. As changed, those paras. of the formal judgments would read substantially as follows:
THIS COURT ORDERS THAT Ms. Rosenberg holds her 50% share of the Property as a tenant-in-common in a resulting trust in favour of Mr. Jackson.
THIS COURT ORDERS THAT Mr. Jackson retains all rights and interests in the Port Hope property, that he is a beneficial owner of 100% of the property, and that he is free to encumber or sell the Property.
THIS COURT ORDERS THAT when Mr. Jackson dies, 100% of whatever equity remains in the Port Hope property will become part of his estate.
THE COURT ORDERS THAT 100% of the beneficial ownership ofthe Property is vested in Mr. Jackson and that an order to this effect in the form attached hereto as Schedule "1" be recorded in the Land Titles register for the Property.3
7Ms. Rosenberg did not respond directly to whether these changes are appropriate to correct the application judge’s error about the subsistence of a right of survivorship in the tenancy in common he found existed. Instead, her further submissions challenge findings of the application judge that we upheld and our decision to affirm them. The further submissions seek to reargue her claim for some of the same relief she sought in her unsuccessful appeal, namely a declaration that she is the owner of 50% of the property and that Mr. Jackson cannot sell or encumber the property without her consent. Ms. Rosenberg’s submissions fall well outside the topic and scope of the request for further submissions.
Discussion
8Ordinarily a notice of cross-appeal is required if a respondent seeks to vary the order below: r. 61.07(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. However, a cross-appeal may be heard without such a notice with leave of the court: r. 61.07(3).
9It is in the interests of justice to grant leave, treat Mr. Jackson’s requested changes as a cross-appeal, and vary the judgments to accord with the position that the right of survivorship was completely extinguished when the joint tenancy was severed. As noted above, Mr. Jackson clearly asked for that clarification on the appeal and Ms. Rosenberg also submitted that it was contrary to law for a right of survivorship to exist in a tenancy in common. As provided in our original reasons, “[n]o right of survivorship could attach to or flow from” the interest the application judge found Ms. Rosenberg held in the property following the 2020 transfer, namely, an interest as a tenant in common that she held on resulting trust for Mr. Jackson. Correcting this error is accomplished by the revisions to paras. 2-4 of the formal judgments requested by Mr. Jackson as reproduced above at para. 6 of these supplementary reasons, and the deletion of what was para. 5 of the formal judgments.
10Mr. Jackson’s request for a vesting order to replace what was para. 5 of the judgments does not flow as clearly from the need to correct the error about the right of survivorship. However, Mr. Jackson, as the beneficiary of a resulting trust over the 50% share of the property held in Ms. Rosenberg’s name, is entitled to demand that she comply with her duties as trustee. It is the very essence of the duty of a person holding property on resulting trust to return legal title to the original owner. As the Supreme Court explained in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, a “resulting trust arises when title to property is in one party’s’ name, but that party … is under an obligation to return it to the original title owner”: at para. 20.
11Ms. Rosenberg has not raised any reason why she should not have to return title other than to contest the finding of resulting trust. However, that point has been decided against her by the application judge and was upheld by our decision. It would not be in the interests of justice to require the parties to go through another round of litigation in the Superior Court to clean up title. We accordingly also grant the request to vary the formal judgments to add the language in para. 5 providing for a vesting order in the terms requested by Mr. Jackson.
Disposition
12We order that the formal judgments be varied by the revision of paras. 2-5 thereof, in the terms reproduced at para. 6 of these supplementary reasons.
“K. van Rensburg J.A.”
“B. Zarnett J.A.”
“J. George J.A.”