Court of Appeal for Ontario

Date: 20241028 Docket: COA-23-CV-1299

Before: Hourigan, Madsen and Pomerance JJ.A.

Between:

Eulalia Gomes, Nascimento Coelho and The Estate of Tito Da Silva, Deceased, by its Estate Trustee, Otilia Da Silva Plaintiffs (Respondents)

and

Victor A.P. Da Silva Defendant (Appellant)

Counsel: Antonio Conte, for the appellant Stephen M. Turk, for the respondents

Heard: October 23, 2024

On appeal from the order of Justice Marie-Andrée Vermette of the Superior Court of Justice, dated November 13, 2023.

Reasons for Decision

[1] The appellant appeals the order of the trial judge dismissing his claim for a resulting trust and granting the respondents’ claim for partition and sale of the property located at 993 Dundas Street West, Toronto (“the property”). The appellant also challenges the dismissal of his claim for “credit” in relation to work undertaken on the property between 1974 and 2012 and other related relief.

[2] The appeal was dismissed with reasons to follow. These are the reasons.

A. Background

[3] The parties are three siblings and the estate of one sibling. Since the death of their mother, they have been unable to agree on the ownership of the family home and what should happen to it. The three respondents, who jointly hold legal title to 37.5% of the property, brought an application on July 17, 2019, seeking an order under the Partition Act, R.S.O 1990, c P.4, for partition and sale of the property. The appellant countered with a statement of defence and counterclaim on December 10, 2019, alleging a resulting trust, and asserting that he is the beneficial owner of 100% of the property. He also claimed “credit” for the value of services he provided in relation to the property since it was purchased.

[4] The property was purchased in 1974. At that time, the parties’ parents held an undivided 50% interest in title as joint tenants, and the appellant held the other 50%. In 1996, the parties’ father died, following which title was held by their mother (50%) and the appellant (50%) as tenants in common. In 2012, the parties’ mother transferred her 50% interest to herself and all four siblings, including the appellant. Thus, when she died in 2019, the appellant held title to 62.5% of the property, with the respondent siblings each holding a 12.5% interest.

[5] In detailed reasons, the trial judge found that the appellant had not established his claim for a resulting trust. She determined that the claim was statute-barred under s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 (the “RPLA”); that he lacked material corroboration of his evidence as required under s. 13 of the Evidence Act, R.S.O. 1990, c. E.23; and that even if the appellant’s assertion that he had advanced substantial funds towards the purchase were established, the evidence supported an inference that he gifted those funds, rebutting any presumption of resulting trust. The trial judge also made negative credibility findings against the appellant, finding his evidence to be inconsistent, vague, and unreliable. She also found that he had a poor memory of events.

[6] Having rejected the resulting trust claim, the trial judge granted the claim for partition and sale, finding no evidence of malice, oppression, or vexatious intent on the part of the respondents, and no exceptional circumstances. She also dismissed the claim for equitable set-off in relation to the claimed value of work performed on the property from 1974 to 2012.

B. Arguments on appeal

[7] The appellant submits that the trial judge made the following errors:

a. she reversed the burden of proof in relation to the presumption of resulting trust, and made unreasonable findings of fact and credibility;

b. she incorrectly interpreted and applied s. 13 of the Evidence Act in relation to the requirement for corroborating evidence;

c. she erred in finding that, in any event, the resulting trust claim was statute-barred by s. 4 of the RPLA; and,

d. she also erred in determining that the claim in relation to work done on the property before 2012 was statute-barred.

[8] We do not accept these submissions.

C. Resulting Trust

[9] We start with the argument that the trial judge erred in finding that the claim for resulting trust was statute-barred. The determination of this issue is sufficient to dispose of the resulting trust claim.

[10] A finding that a limitation period applies is a finding of mixed fact and law, which is entitled to deference on appeal, reviewable for palpable and overriding error: Fockler v. Spiegel, 2023 ONCA 148, at para. 25; Dass v. Kay, 2021 ONCA 565, at para. 29.

[11] The trial judge found that in 2008, when legal title to the property was held equally between the parties’ mother and the appellant as tenants in common, the appellant, on the advice of his financial advisor, contacted his mother in writing seeking her consent to borrow against “[his] portion” of the property. He stated that if she did not consent, he would be “forced to take appropriate action” to obtain credit against “[his] part of the ownership of the property.” The parties’ mother responded, in writing, that she did not consent. She proposed that either she or the appellant purchase the other’s half interest or that the property be sold. The trial judge rejected the appellant’s oral evidence that his mother told him in 2008 that it was his house, finding this inconsistent with the written communications.

[12] The trial judge correctly stated that s. 4 of the RPLA creates a ten-year limitation period for “an action to recover any land”. This includes claims advanced by way of resulting or constructive trust. She held that even if the parties’ mother held her interest in the property on a resulting trust for the appellant, the limitation period would have expired in 2018, ten years after her correspondence that put the appellant on notice regarding her view of the ownership of the home, and well before the appellant filed his statement of defence and counterclaim in December 2019. The trial judge found that, “[the appellant] had knowledge starting in 2008 that Maria da Silva did not have the intention to honour such a trust”, if indeed there was one. He referred in his 2008 letter to “taking appropriate action” but chose not to enforce his alleged rights. The trial judge correctly concluded that the appellant’s choice not to take steps in 2008 to assert his property claim did not stop the running of the limitation period.

[13] Nor is there any error in the trial judge’s conclusion that s. 5(2) of the RPLA does not apply to postpone the start of the limitation period to the date of the death of the parties’ mother, as the appellant was advancing a claim against a deceased person and her interest in the property not on behalf of or through a deceased person. [1] Bradshaw v. Hougassian, 2023 ONSC 3266, cited by the appellant to support his argument that the RPLA limitation period should only begin to accrue after the death of his mother, does not assist on this point. In that case, the estate trustees claimed a resulting trust on behalf of the estate of the deceased person, rather than against it. See also Archer v. Neita, 2024 ONSC 2883, at para. 56.

[14] While we find no error in the conclusion of the trial judge that the resulting trust claim was statute-barred, we briefly address the additional submissions regarding the resulting trust claim, for completeness.

[15] The appellant asserts that the trial judge erred in concluding that the appellant had not established a resulting trust because she reversed the burden of proof in relation to the presumption, by requiring the appellant to prove that he paid more than 50% of the purchase price. We do not accept this argument. The proponent of a rebuttable presumption bears the onus to prove the “basic fact,” in this case, proof of the advance of funds to purchase the property: Singh v. Kaler, 2017 ABCA 275, 80 R.P.R. (5th) 186, at paras. 21-22. Without proving the “basic fact,” the presumption is not engaged.

[16] It was open to the trial judge to find that the appellant did not prove that he had contributed more than 50% of the purchase price. No documentary evidence confirmed such payment, and the trial judge found the appellant’s oral evidence suggesting he paid 100% of the purchase price to be lacking in credibility, and was “vague” and “unsupported.” She also noted multiple statements by the appellant over the years referring to himself as owning 50% of the property. These were all findings that were open to her on the record.

[17] The trial judge’s conclusion that even if the appellant had shown that he paid more than 50% of the purchase price, she would have found that the presumption was rebutted by evidence that it was a gift, was also open to her. She identified numerous factors supporting that characterization: the lack of any contemporaneous documents evidencing a loan or any conditions, the fact that the appellant held no security, the lack of demand for the return of the property before the parties’ mother died, and the fact that there was no evidence of the appellant’s expectation of repayment from the parties’ parents. There is neither palpable nor overriding error in the findings of fact and credibility made by the trial judge.

[18] Finally, the appellant also argues that the trial judge erred in her interpretation of s. 13 of the Evidence Act, which provides that “in an action by or against heirs, next of kin, executors, administrators, or assigns of a deceased person, an opposite or interested party will not obtain a verdict on his or her own evidence in respect of any matter occurring before the death of the deceased person unless such evidence is corroborated by other material evidence”. We do not accept this argument. The appellant’s claim for resulting trust was a claim against the assigns of a deceased person, the parties’ mother. The respondents are her assigns. The appellant is thus an “opposite” party under s. 13, and the plain wording of the section requires corroboration in respect of matters occurring before his mother’s death. We see no error in the trial judge’s determination on this issue. We note, additionally, her conclusion that “even without applying section 13 of the Evidence Act, I find that Mr. Da Silva has not established on the balance of probabilities that he advanced more than 50% of the purchase price of the property.”

[19] Therefore, had the resulting trust claim not been statute-barred, it would nevertheless have been unsuccessful.

D. Claim for compensation for work done before 2012

[20] The appellant asserts that the trial judge erred in dismissing his claim for work done on the property between 1974 and 2012, which he valued at $277,900. He argued that half of that amount should be credited to him from the proceeds of sale. Throughout the course of litigation, the appellant has attempted to frame this claim in various ways. In his factum on appeal, he asserts this claim based on principles of unjust enrichment and quantum meruit. At trial, he framed the claim as one of equitable set-off, and it was addressed on that basis by the trial judge.

[21] The trial judge found that the defence of equitable set-off was inapplicable on the facts of this case, as the appellant’s claim did not arise out of the same contract or series of events that gave rise to the respondents’ claim, nor was it closely connected with it: Canaccord Genuity Corp. v. Pilot, 2015 ONCA 716, 340 O.A.C. 359, at para. 57, citing Telford v. Holt, [1987] 2 S.C.R. 193, at pp. 211-212. The claim related to work allegedly undertaken before the respondents were even on title, work for which the appellant had never previously sought compensation. The trial judge found the claim for work done before 2012 “ha[d] nothing to do with [the respondents’] right to ask for partition and sale.” Further, given that equitable set-off did not apply, the appellant’s claim was subject to a two-year limitation period, which had expired. We see no error in the analysis or conclusions of the trial judge.

E. Partition and Sale

[22] The appellant does not address the issue of partition and sale in his factum. In his Notice of Appeal, he states that he seeks an order that the respondents are not entitled to partition and sale on the basis that the property is wholly owned by him.

[23] Having found that the appellant was not a 100% beneficial owner of the property, the trial judge granted the respondents’ claim for partition and sale. She correctly set out the applicable law and found that the circumstances of this case were not within the “narrow” exceptions to the prima facie right to partition or sale of lands; there being no evidence of malice, oppression, or vexatious intent: Wise Enterprises Inc. v. J. Weiss Investments Limited, 2017 ONSC 5468, at paras. 7-8, citing Silva v. Silva, [1990] O.J. No. 2183 (Ont. C.A.). This finding was available to her on the evidence. We find no error of the analysis of conclusions of the trial judge on this issue.

F. Fresh Evidence

[24] The appellant seeks to have this court receive fresh evidence. He says the evidence – letters written by the parties’ mother and transcribed by one of the respondents in 1967 and 1970 – would show that the parties’ mother had debts in Portugal at the time of the house purchase and would not therefore have had funds to contribute. This, he argues, could change the result because it would contradict the finding at trial that the appellant had not shown that his parents did not have the necessary resources to pay 50% of the down-payment.

[25] The proposed evidence does not meet the Palmer test [2] for the admission of fresh evidence. As the letters have apparently been in existence for some 50 years, they could certainly, with due diligence, have been adduced at trial. Further, given that the expired limitation period is decisive of this appeal, and that the trial judge would in any event have characterized any contribution by the appellant to the purchase of the property as a gift, the proposed evidence does not bear on a decisive issue.

[26] The motion to adduce fresh evidence is dismissed.