DATE: 20041118

DOCKET: C40285

COURT OF APPEAL FOR ONTARIO

RE: SCOTT WILLIAM HARRISON, Executor of the Estate of SUSANNE MARIE HARRISON, Deceased (Appellant) – and – ROSS WILLIAM HARRISON (Respondent)

BEFORE: McMURTRY C.J.O., GOUDGE and FELDMAN JJ.A.

COUNSEL: Liza Sheard and Michael Bordin For the appellant

G. Edward Oldfield and Jennifer Breithaupt For the respondent

HEARD: July 5, 2004

On appeal from the judgment of Justice Casimir N. Herold of the Superior Court of Justice dated June 6, 2003.

E N D O R S E M E N T

[1] Both at trial and in this court the appellant’s main submission was that on Mrs. Harrison’s death her husband was unjustly enriched by operation of his right of survivorship, whereby he succeeded to her half of the farm properties that they held as joint tenants. The appellant argues that as a remedy for the unjust enrichment, the court should impose a constructive trust on Mrs. Harrison’s half of the farm properties in favour of her estate.

[2] In our view, the trial judge did not err in dismissing this argument. Assuming an enrichment of the respondent and, (although this is more dubious), a detriment to Mrs. Harrison’s estate (since arguably her interest in the farm properties never passed to her estate), we agree that the appellant has failed in its obligation to show an absence of juristic reason in the circumstances of this case.

[3] The respondent’s enrichment arises on the death of his wife purely through the operation of law, namely the survivorship right which was an incident of the way in which the properties were held. Nor can it be said that this result, which keeps the farms together, is clearly inconsistent with the legitimate expectations of the parties. A central theme of the 1991 agreement was the hope that the farm properties would remain as a unit in the family rather than be severed and sold. Moreover, Mrs. Harrison took no steps over nearly ten years following the agreement to effect the severance.

[4] In short, the appellant’s main argument must fail.

[5] Secondarily, the appellant argues that a constructive trust should be imposed based on the respondent’s wrongful conduct. Here, the appellant’s primary problem is the finding of fact by the trial judge that there was no evidence of an underlying wrongful conduct by the respondent. This finding was open to the trial judge on the evidence and cannot be interfered with in this court.

[6] Finally, the appellant argues proprietary estoppel. This argument was not raised at trial. Moreover, as the respondent argues, there was no representation by the respondent that he would not rely on his right of survivorship. Indeed, he was unaware that he had such a right when he made the agreement in 1991. Without this, the prerequisite for this argument falls away.

[7] The appeal must therefore be dismissed, but in the circumstances without costs.

“R.R. McMurtry C.J.O.”

“S.T. Goudge J.A.”

“K. Feldman J.A.”