Court File and Parties

Court File No.: CV-23-81088; CV-23-82703 Date: 2024-05-22 Ontario Superior Court of Justice

Between: Andray Archer, Applicant And: Kirk Neita, Respondent

Heard: April 10, 2024

Counsel: Samuel Beuerle, Counsel for Andray Archer Ahmed Elahi, Counsel for Kirk Neita

Decision on Applications The Honourable Justice J. Krawchenko

Overview

[1] Kirk Neita and Andray Archer [1] are the two surviving adult sons of the late Pauline Archer.

[2] Pauline Archer died, intestate, on 3 June 2021.

[3] Having left no surviving spouse, Pauline Archer’s estate is to be divided equally between her two sons, as the sole beneficiaries.

[4] The principal estate asset is a property at 9 Tamarisk Drive, Etobicoke, Ontario. (“9 Tamarisk”) which is the subject matter of the dispute between the brothers.

[5] Kirk Neita moved into 9 Tamarisk in 2022 and remains there to this day and for reasons I will set out, has claimed an ownership interest in that property.

[6] After Pauline Archer’s death, no official steps were taken to administer her estate. This prompted Andray Archer to initiate an Application (23-81088).

[7] In the first application (23-81088), Andray Archer sought to be appointed as the Estate Trustee in his late mother’s estate, he also sought an order requiring Kirk Neita to account for his actions relating to his unofficial involvement in the affairs of Pauline Archer’s estate, including an accounting of rent money he had received from tenants at 9 Tamarisk.

[8] Kirk Neita initiated the second application (23-82703) against his mother’s estate, claiming that a fraud had been perpetrated against him in 2010, when his late mother transferred his interest in 9 Tamarisk to herself through a power of attorney. Kirk Neita sought a declaration of his interest in 9 Tamarisk and a rectification of the parcel register to show him as a 50% tenant in common with his late mother (acknowledging that in purporting to transfer his interest in the property to herself, his late mother had severed the prior joint tenancy).

[9] Both matters were ordered to be heard together today.

[10] At the outset of the hearing, I was advised that the first application relating to the appointment of an Estate Trustee and the accounting, had been resolved and the parties would provide a copy of a consent order, appointing an independent Estate Trustee with enumerated duties and responsibilities. Accordingly, the first application was not argued.

[11] Upon my signing of the consent order, that application will be concluded.

[12] Before proceeding with the second application, I raised a concern that in it, no one officially represented the respondent estate. Both Kirk Neita and Andray Archer joined in submitting that: a) They were the only two parties that had any legal interest in the estate of their late mother; b) They had both served and filed materials (Andray Archer as an interested party); c) They both had completed their own cross examinations on affidavits filed on this second application; d) They both had filed voluminous materials in support of their respective positions; e) That nothing would be gained by complicating the proceedings further by requiring the introduction of an Estate Trustee and counsel to appear and file further materials; f) That delay in proceeding with this application would necessarily delay the appointment of the estate trustee and her work.

[13] I accepted these arguments and allowed the second application to be argued.

Background

The Purchase of 9 Tamarisk

[14] 9 Tamarisk was purchased on 28 August 1997 for $186,900.00.

[15] Title was taken by Pauline Archer and her then 22-year-old son Kirk Neita, as joint tenants. [2]

[16] In the purchase transaction, Pauline Archer and Kirk Neita were represented by the same lawyer, namely, David P Brannan.

[17] Kirk Neita’s evidence regarding this purchase was that: a) His mother and stepfather had previously owned a home together. They separated from each other and sold their matrimonial home when he was living away at college. b) When he returned from college he moved in with his mother into a rented premises until purchasing 9 Tamarisk. c) Kirk Neita was considering purchasing his own condominium property which would have been financed by his then employer. d) Pauline Archer found 9 Tamarisk. e) This purchase was financed by a mortgage upon which both Pauline Archer and Kirk Neita were chargors. Both Pauline Archer and Kirk Neita were shown as joint tenants on the original deed. f) The downpayment came from a loan that Pauline Archer took out in her own name and that of Kirk Neita, leveraging Mr. Neita’s status as a first-time home buyer to obtain a Ontario Government loan of 10% of the purchase price towards the down payment. g) Kirk Neita repaid the approximately $18,000.00 government loan with interest. h) In addition to this government loan, Pauline Archer contributed between $21,000.00 and $26,000.00 towards the purchase. i) Kirk Neita paid his mother $250 cash per week for 6 years as a contribution towards the costs of financing the home and taxes and bills.

[18] The above referenced evidence of Kirk Neita (other than the original deed and charge) was not corroborated by any other independent evidence or witnesses.

The Power of Attorney

[19] On 28 August 1997, the same day of the purchase, Kirk Neita signed a General Power of Attorney (“POA”) appointing his mother Pauline Archer, as his attorney.

[20] David P. Brannan and legal secretary Lidia Di Giannatonio witnessed the POA.

[21] The POA included a condition and restriction which was that it was given by Kirk Neita to his mother Pauline Archer to deal with “All matters relating directly or indirectly to the premises known as 9 Tamarisk Drive in the City of Etobicoke….”. The POA was not broad, but circumscribed.

[22] Kirk Neita’s evidence was that he signed the POA, but understood that it was only to facilitate his mother’s ability to pay taxes and bills and that other than that, his mother would have to consult with him.

Occupation of 9 Tamarisk

[23] Kirk Neita resided at 9 Tamarisk with his mother from 1997 until 2003.

[24] In 2003 Kirk Neita moved away, but his late mother remained. After leaving 9 Tamarisk, Kirk Neita moved in with his friend Darryl Grice, on Humberline for a period of 8 months. Following this, and for a period of approximately one year, he moved from place-to-place living with four or five different families. He then moved to a rented room in Brampton in 2005. During this period of time of moving, Kirk Neita had a period of unemployment. He would move approximately 3 more times between 2005 and 2022, living in Brampton, subletting his accommodations.

[25] Pauline Archer rented the basement to tenants in 2010 and collected the rent. In 2011, Kirk Neita became aware of that fact. He did not receive any share of the rent proceeds.

[26] Kirk Neita returned to 9 Tamarisk approximately one year after his mother’s death, he has resided there since and has collected rent from his late mother’s long-term tenants.

Transfer of Title and other Relevant Details of 2010

[27] On 01 April 2010 title to 9 Tamarisk was transferred to Pauline Archer as a sole owner.

[28] The transfer was facilitated in part through the use of the POA. On the face of the transfer, Pauline Archer declared (and her solicitor confirmed) that the POA was still in full force and effect. Further the transfer stated that Kirk Neita had consented to the registration, subject to the continuance of instrument E110331 (the original mortgage).

[29] The real estate lawyer, C. Chukwuedozie Chijindu acted for both Pauline Archer and Kirk Neita and completed the transfer in accordance with his professional standards.

[30] In addition to the transfer, Pauline Archer discharged the original charge E110331, upon which Kirk Neita had been a chargor, and with the discharge, Kirk Neita was no longer liable on the charge. Pauline Archer refinanced the property and became the sole chargor. With the exception of her tenants, Pauline Archer enjoyed the sole possession of the property and was solely responsible for all of its carrying costs from at least 2003 when Kirk Neita moved away.

Positions of the Parties

Position of Kirk Neita

[31] Mr. Neita argued that he was a true joint owner of 9 Tamarisk with his late mother. In 2010, his mother, in collusion with her lawyer, defrauded him of that ownership interest by using a POA, that was only meant to be used to pay bills, for an unauthorized purpose of removing from title.

[32] He sought a reinstatement of his interest in the property as a ½ owner and tenant in common, recognizing that if the transfer had been improper, it would have served to have severed the joint tenancy.

Position of Andray Archer

[33] Andray Archer was a young boy during the relevant time periods of the initial home purchase and subsequent transfer.

[34] All that he could offer in response to his brother’s narrative was hearsay evidence, which was of little value.

[35] Mr. Archer did challenge his brother on the basis of section 13 of the Evidence Act as well and also argues that the relief claimed was barred as a result of the passage of time.

Analysis

Section 13 of the Evidence Act

[36] Our starting point is section 13 of the Evidence Act which states as follows:

Actions by or against heirs, etc.

13 In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision 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 some other material evidence. R.S.O. 1990, c. E.23, s. 13. (emphasis added)

[37] In cases such as these, the requirement for corroboration under the Evidence Act is self-evident. Corroboration is needed to enhance the evidence offered by only one side, with the other side unable to respond. This is an absolute necessity in order to assist the Court in determining the truth. Corroborating evidence may be direct or circumstantial and must be independent of the evidence of the interested party.

[38] In this application there was no material corroborating evidence to support Kirk Neita’s version of events of being a bona fide purchaser (with his mother) of the subject property.

[39] Kirk Neita provided no material corroborating evidence of his contribution of money towards the purchase price, either from his own bank accounts or through a government loan, nor did he provide evidence of his repayment of the purported government loan or of his weekly payments to the deceased.

[40] Kirk Neita provided no evidence from the two lawyers involved in both the original purchase and subsequent transfer of the property.

[41] As Kirk Neita was “a client” of both lawyers it was within his rights as a client to obtain his files from which relevant and corroborating evidence could be found. Additionally, Kirk Neita neither summoned these two lawyers or obtained their files.

[42] This court draws an adverse inference against Kirk Neita in this failure to provide this very important evidence.

[43] On this point, Kirk Neita has not met his onus of proof.

[44] Based upon the lack of corroboration coupled with the adverse inference drawn, pursuant to section 13 of the Evidence Act, I would dismiss this application.

Limitation Periods

[45] Additionally, the relief sought by Kirk Neita would not be available to him due to the passage of time.

[46] Two limitation periods were addressed in argument, the first being the basic 2-year limitation period under the Trustee Act [3] and the 10-year limitation period set out in the Real Property Limitations Act [4].

Trustee Act – 2 Year Limitation

[47] Sections 38(2) and (3) of the Trustee Act provides that if a deceased person (i.e. Pauline Archer) committed or is by law liable for a wrong to another in respect of another person’s property (i.e. Kirk Neita’s interest in 9 Tamarisk) an action [5] …“shall not be brought after the expiration of 2 years from the death of the deceased.”

[48] Kirk Neita’s application was issued on 01 September 2023, more than 2 years after Pauline Archer’s death.

[49] The Trustee Act creates a “hard” limitation period when claiming against an estate.

[50] On that basis, the application was commenced too late and cannot succeed, the limitation period having run from the date of death.

Real Property Limitations Act

[51] Kirk Neita argued that the 2-year Trustee Act limitation period did not apply but rather, the 10 year limitation under the Real Property Limitations Act (RPLA) applied instead. I do not agree.

[52] Section 4 of the RPLA provides that No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

[53] The Court of Appeal in Browne v Meunier, 2023 ONCA 223 held that the language of section 4 implies that the limitation period is subject to discoverability, commencing when the material facts were discovered or were discoverable by a reasonably diligent person.

[54] Kirk Neita argued that he did not discover the alleged fraudulent transfer until 9 September 2021, it having been affected by a joint fraudulent endeavor of his mother in concert with her lawyer.

[55] This Court has rejected the arguments advanced by Kirk Neita that the POA was used improperly and that a fraud was perpetrated by his mother in concert with the real estate lawyer in registering the transfer in 2010. These two arguments do not logically align with the corresponding discharge of a mortgage and refinance in Pauline Archer’s name alone, and completely ignore the reference on the transfer of Kirk Neita’s actual consent at that time. Even allowing for the possibility that Kirk Neita misunderstood the implications of the transfer, he knew of it, and it would have been known to him i.e. discovered or discoverable in 2010 or shortly thereafter, and the ten years would have expired prior to Pauline Archer’s death.

[56] In the alternative, Kirk Neita argued that section 5(2) of the RPLA delayed the start of the section 4 limitation period until the time of his mother’s death and therefore these proceedings were initiated within the ten-year limitation period. Here Mr. Neita was not advancing his claim on behalf of or through a deceased person, this was a claim against a deceased person and her interest in the land, accordingly, section 5(2) does not apply.

Conclusion

[57] For the foregoing reasons, Kirk Neita’s Application as against the Estate, is dismissed.

[58] If costs cannot be agreed upon, Andray Archer, shall deliver brief submissions of not more than 4 pages, double spaced, excluding his bill of costs and offers by 4 June 2024 and Kirk Neita shall deliver his responding submissions with the same page limit and format by 11 June 2024. The submissions shall be emailed to the judicial assistant for the Hamilton Court House and also uploaded to CaseLines.

Justice J. Krawchenko Released: May 22, 2024

Footnotes

[1] Kirk Neita was the biological child of the deceased and Andray Archer was adopted by his late mother.

[2] Andray Archer was only 3 years old at that time and had not yet been adopted.

[3] RSO 1990 c T.23

[4] RSO 1990, L15

[5] Section 38 of The Trustee Act makes reference to an “action”, but does not define that term. Here the proceedings were by way of “application”. While the Courts of Justice Act and Rules of Civil Procedure provide that the two are distinct, the Trustee Act use of the term must be interpreted to mean “a court proceeding” including both mechanisms of commencing a legal proceeding under the Rules being actions or applications, all of which share the same goal, which is a determination of the issues by a court of competent jurisdiction resulting in a judgment or order.