COURT OF APPEAL FOR ONTARIO
Miller, Trotter and Osborne JJ.A.
BETWEEN
Indira Singh
Plaintiff (Respondent)
and
Hansmattie Persaud
Defendant (Appellant)
Garth B. Dingwall, for the appellant
H. Keith Juriansz and Mark Stoiko, for the respondent
Heard: May 14, 2026
On appeal from the judgment of Justice Carole J. Brown of the Superior Court of Justice, dated August 30, 2024.
Osborne J.A.:
Background and Judgment Below
1The appellant, Hansmattie Persaud, appeals from the judgment dated August 30, 2024, by which the trial judge:
a. ordered that the appellant transfer title to a property at 19 Jacob Fisher Drive, Toronto, to the respondent, Indira Singh;
b. declared that the respondent was the sole beneficial owner of the property;
c. vested title to the property in the respondent;
d. ordered the appellant to pay to the respondent general damages of $26,084.37 and punitive damages of $10,000; and;
e. dismissed the appellant’s counterclaim.
2The respondent is the niece of the appellant. The family was originally from Guyana. The appellant immigrated to Canada in 1987 and, together with her mother and brother, subsequently sponsored her sister and her sister’s six children, one of whom is the respondent.
3The appellant purchased several properties which she used for income purposes. When the respondent and her family first came to Canada, they lived in the basement of one of the appellant’s homes and subsequently lived with the respondent’s sister.
4As set out in the reasons of the trial judge, the respondent’s evidence was that when she came to Canada, she brought money from Guyana. She had been living with an ex-boyfriend for 17 years and they were supposed to marry. He gave her $38,000 to bring to Canada, in addition to which she brought $11,000 and USD $2,000, all in cash. Her evidence was that her boyfriend had told her not to disclose the money to the appellant, to whom the respondent advised she had only $9,000. Her evidence was that she was not certain, until 2005 or later, whether she could use the $38,000 from her ex-boyfriend, or whether he wanted it back.
5The respondent met her common-law spouse at her workplace in 1997.
6In or about 2000, she qualified for Ontario Works, the Ontario government program that provides financial assistance for food and housing, and provides health benefits.
7The property that is the subject of this appeal was purchased in July 2007. The trial judge found that the respondent and her spouse originally intended that he would be the purchaser, but since he had a poor credit rating (and therefore would have difficulty obtaining purchase financing), the agreement of purchase and sale named both the respondent’s spouse and the appellant as purchasers. After it was revealed that the spouse was having an affair, the appellant ultimately purchased the house in her name. The respondent gave the appellant $10,000 in cash towards the deposit, and the transaction closed on July 3, 2007.
8The trial judge found that the home was being held by the appellant as trustee for the respondent. To attest to this fact, a Statutory Declaration and an Acknowledgement of Trust, both prepared by the appellant’s lawyer, were signed on August 7, 2007.
9As stated in the reasons of the trial judge, the Acknowledgement stated that although the property was registered in the appellant’s name as owner, she held title for the respondent. The Statutory Declaration stated that the respondent was the sole beneficial owner of the property and had been since the closing on July 3, 2007. Further, the Acknowledgement recognized that all monies and other consideration for the purchase of the subject property came from the respondent, the appellant had not contributed financially in any way to the purchase of the property, and all carrying costs after closing were being made by the respondent.
10After the purchase, the appellant told the respondent each month what she (the respondent) was required to pay for carrying costs for the home, and the respondent paid those amounts in cash. The trial judge found that she never received a receipt or copies of the bills.
11The appellant assured the respondent that the house was insured, and instructed the respondent to give her (the appellant) $90 per month. The appellant also told the respondent that the property taxes were included in the mortgage payments being made. That continued for approximately nine years.
12The relationship between the appellant and the respondent deteriorated in 2016 over various issues, including whether the respondent would continue to pay the appellant in cash and whether any record of the payments would be kept.
13The trial judge found that by June 2016, the respondent had arranged a mortgage with RBC for the property. She brought this action seeking an order directing the appellant to transfer title to the property into her name as sole beneficial owner, and for the other relief set out above.
14The appellant then brought a counterclaim alleging that she was the beneficial owner of the property (in whole or at least in part), while also seeking recission of the beneficial ownership provisions of the Statutory Declaration and Acknowledgement of Trust in favour of the respondent, unjust enrichment and general damages for aggravation, stress, and anxiety, among other relief.
15Following trial, the trial judge:
a. found that the respondent was the sole beneficial owner of the property;
b. ordered that title be transferred to her;
c. awarded damages in the amount of $26,084.37 in respect of penalties and interest related to the failure by the appellant to give notice to the respondent of the need to pay property taxes and other items;
d. awarded the respondent punitive damages of $10,000; and
e. dismissed the counterclaim, finding there to be no merit to the appellant’s allegations nor any evidence to establish those allegations.
The Appeal
16The appellant appeals the judgment and submits that the trial judge made reviewable errors by:
a. awarding the respondent punitive damages of $10,000 when punitive damages were not pleaded in the statement of claim, and were also formally abandoned by counsel during trial;
b. providing insufficient reasons for her decision;
c. failing to appreciate or grapple with issues raised in the evidence relating to the Acknowledgement of Trust and Statutory Declaration, and in particular made reviewable errors in her findings related to:
i. the effect of an exculpatory clause;
ii. an alleged one-year term to the trust arrangement;
iii. the alleged unenforceability of the trust agreement on the basis of illegality or ex turpi causa; and
d. failing to address credibility issues relating to the evidence of the two parties.1
Analysis
17The standard of review applicable to questions of mixed law and fact where there is an extricable error of law is correctness. In the absence of extricable legal errors, questions of mixed law and fact are reviewable on the palpable and overriding error standard. The standard of review on findings of fact is palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10 and 36.
18Contractual interpretation is a question of mixed fact and law requiring the application of principles of contractual interpretation to the words of the contract and its factual matrix. However, an extricable question of law is subject to a correctness standard of review. Potential extricable questions include the application of an incorrect principle, the failure to consider a required element of the legal test, or the failure to consider a relevant factor: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 47, 52-53.
19I address each ground of appeal below.
20With respect to the first ground of appeal, the appellant submits that the trial judge erred in awarding punitive damages since they had not been claimed in the pleading, and in any event, the respondent’s counsel conceded during trial that punitive damages were not being pursued.
21Punitive damages were expressly claimed in paragraph 26 of the amended statement of claim. While I acknowledge that the prayer for relief set out in the first paragraph of the pleading does not reference punitive damages, the appellant was clearly on notice that they were being sought, and specifically pleaded to paragraph 26 in her amended statement of defence.
22With respect to the alleged concession during trial that the claim for punitive damages was abandoned (and leaving aside the fact that such an argument is itself inconsistent with the position simultaneously advanced that punitive damages were never sought in the first place), a fair reading of the exchange in the transcript between counsel for the respondent and the trial judge reflects that the subject matter of the exchange was the extent of special damages being claimed, and nothing more.
23Moreover, the submission that the punitive damages claim was not being pursued is belied by the written submissions of the respondent made at the conclusion of trial in which the respondent expressly sought punitive damages in the amount of $10,000 (the quantum awarded by the trial judge) as a result of the conduct of the appellant.
24The trial judge awarded punitive damages based on her findings related to the actions of the appellant, which she found to be high-handed and of a nature that merited sanction. These included the failure by the appellant to notify and advise the plaintiff that realty taxes after 2021 had to be paid directly to the municipality and were not being paid through the mortgagee, which resulted in the municipality imposing penalties ultimately paid by the respondent.
25They also included the following: a failure by the appellant to renew the mortgage on the property from time to time on terms favourable to the respondent, instead allowing the mortgagee to automatically renew on unfavourable higher rate terms; her failure to renew insurance on the property beginning in May 2018 and misleading the respondent and the court with respect to property insurance when in fact the property had been completely uninsured from 2018 to 2024; and the appellant’s failure to reveal that she was in possession of insurance files relating to a claim for flood damage in 2008, as a result of which the appellant received funds to which she was not entitled.
26All of those findings were open to the trial judge on the record. I see no basis to interfere with the exercise of her discretion to award punitive damages of $10,000.
27I address the second, third and fourth grounds of appeal together, since they overlap with one another to a significant degree.
28With respect to the second ground of appeal, the appellant submits that the trial judge provided insufficient reasons for her decision and “overlooked key issues that illustrate a failure to come to grips with the issues or apprehend the evidence and submissions made.”
29That is substantially the same as the third ground of appeal in which the appellant submits that the trial judge failed to appreciate or grapple with issues raised in the evidence at trial relating to the Acknowledgement of Trust and Statutory Declaration, and made reviewable errors in interpreting that agreement, and particularly with respect to an exculpatory clause, an alleged one-year term of the trust, and the alleged illegality of the agreement itself.
30The fourth ground of appeal is that the trial judge failed to address credibility issues relating to the evidence of the two parties.
31The reasons for decision explain clearly the basis for the decision reached by the trial judge and allow for meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 25; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 69, 81.
32The reasons also clearly set out the findings of the trial judge with respect to the credibility and reliability of the appellant and respondent. The trial judge found the respondent to be a credible witness and her evidence to be credible, while rejecting the evidence of the appellant as being inconsistent both internally and as against the documentary evidence, as well as generally problematic. The reasons are clear that the trial judge did not find the appellant to be credible or reliable. A trial judge’s findings of credibility deserve particular deference: G.F., at para. 81.
33However, her key findings are based not on credibility, but rather on the contemporaneous documentary evidence and in particular, the plain language of the Statutory Declaration and Acknowledgement of Trust.
34As set out in the reasons, the trial judge found that the Acknowledgement of Trust, prepared by the appellant’s lawyer and signed by the parties following the purchase of the home, accurately reflected the intention of both parties that the property would be purchased in the name of the appellant on behalf of, and for the beneficial interest of, the respondent. That finding was open to the trial judge and was amply supported by the evidence in the record.
35The trial judge further found that $10,000 of the deposit was paid by the respondent with funds she received from her former spouse, and that it was the intention of the parties that the respondent would pay for all carrying costs and expenses related to the home, and she did so throughout. Those findings also reflect no reviewable error.
36The appellant places heavy reliance on what she refers to as an exculpatory clause in the Statutory Declaration. It provides that the appellant, as trustee, is indemnified and saved harmless by “the beneficial owner” (the respondent) from “all claims, charges, encumbrances, obligations, responsibilities, acts or omissions during the entire period of time that the land was or will be vested in the said trustee”.
37The respondent submits that the intention of the parties reflected by the clear language of the provision was to protect the appellant, as a bare trustee, from claims brought by third parties. I agree.
38In any event, I reject the appellant’s submission that this provision ought properly to be interpreted so broadly as to have the effect of barring the claim of the respondent for title to the property.
39When interpreting a contract, the court should follow a practical, common sense approach focused on the contractual intent of the parties: Sattva, at para. 47; and Seelster Farms et al v. Her Majesty the Queen and OLG, 2020 ONSC 4013, at para. 163.
40The court’s overriding concern is to determine “the intent of the parties and the scope of their understanding”: Sattva, at para. 47, citing Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1 S.C.R. 744, at para. 27.
41The court does this by “read[ing] the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract:” Sattva, at para. 47.
42Applying these principles of contractual interpretation, the so-called exculpatory clause cannot be read as an agreement between the parties that the appellant could simply ignore the Acknowledgement of Trust and take beneficial ownership of the property for herself while barring any claim by the respondent. That would be an absurd result.
43With respect to the alleged one-year term of the trust agreement, the appellant submits that the parties agreed that she would hold title to the property for one year and that “the respondent would make arrangements to allow for her to pay out the existing mortgage and remove the appellant entirely from title, and the mortgage obligations.” The appellant submits that the respondent breached that agreement by failing to pay out the mortgage within a year, and that the reasons of the trial judge are silent on this issue.
44While the reasons do not deal with the alleged one-year term in detail, they are not silent on the issue. At paragraph 54, the trial judge addresses the one year issue, noting that “the property was to be rented out during the first year after which the house was to be transferred, if possible, given the plaintiff’s finances, into the plaintiff’s name.” In our view, nothing flows from the fact that the reasons do not address the issue further. Reasons are not insufficient merely because they do not refer to every document or every provision in every document that was in the record before the trial judge.
45As this court observed in Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 (C.A.), at paras. 343-44, leave to appeal refused, [2004] S.C.C.A. No. 291, the mere absence of any reference to evidence in reasons for judgment does not establish that the trial judge failed to consider the evidence, and where the reasons as a whole show “a strong command of the trial record and a careful analysis of the evidence, leading to detailed findings of fact”, the absence of a reference to a specific piece of evidence “suggests, not that the trial judge ignored that evidence, but rather that she did not regard that evidence as significant”.
46I also note that the reasons expressly refer to the appellant’s counterclaim which the trial judge dismissed, finding it to be without merit and not supported by “any or sufficient” evidence to establish the allegations in the counterclaim. The one-year term argument was a central component of that counterclaim.
47To the extent that the submission of the appellant is that the failure by the respondent to pay out the mortgage in one year, ought, according to the terms of the agreement between the parties, to result in the forfeiture by the respondent of any beneficial interest in the property, I reject this argument for the same reasons set out above in respect of the exculpatory provision.
48Finally with respect to these grounds of appeal, the appellant submits that the trial judge made a reviewable error in her analysis of the alleged unenforceability of the Acknowledgement of Trust and Statutory Declaration on the basis of the doctrine of illegality or ex turpi causa.
49The position of the appellant is that the respondent was, at the time the property was purchased, receiving Ontario Works benefits and she had failed to disclose her assets and income being earned at the time to Ontario Works. The appellant submits that, as a result, the Acknowledgement of Trust and Statutory Declaration should be declared unenforceable and set aside, or in the alternative the appellant should be entitled to a ten percent beneficial interest in the property (i.e., ten percent of the current value).
50The trial judge fully considered the submissions and evidence and expressly rejected the appellant’s allegations in this regard. She made findings with respect to the period of time in which the respondent received Ontario Works benefits and found that at the time of the purchase of the home in 2007, the respondent had only recently learned that the funds she had brought from Guyana were being released to her by her ex-boyfriend and that she did not have to return them. Previously, she believed that the funds were not hers to use and may have to be returned. Accordingly, the trial judge did not find evidentiary support in the record for the appellant’s factual allegations of illegality. Those findings were open to the trial judge on the record, and are entitled to deference.
51The trial judge further found that the doctrine of ex turpi causa did not render the trust agreement illegal and unenforceable. As stated in the reasons, she found that “the parties entered into a simple agreement whereby the [appellant] would hold title to the property in trust for the [respondent]. This agreement was not illegal per se nor was there any evidence that the parties entered into the agreement with the object of committing an illegal act.” In so finding, the trial judge made no reviewable error: see Scott v. Golden Oaks Enterprises Inc., 2024 SCC 32, 497 D.L.R. (4th) 1, at para. 111.
52Accordingly, none of these grounds of appeal can succeed.
Result and Disposition
53For the above reasons, I would dismiss the appeal with costs in the agreed-upon amount of $17,500 inclusive of disbursements and HST.
Released: June 18, 2026 “B.W.M.”
“P.J. Osborne J.A.” “I agree. B.W. Miller J.A.” “I agree. Gary Trotter J.A.”