Court of Appeal for Ontario
CITATION: Wilkinson v. Wilkinson, 2012 ONCA 518
DATE: 20120726
DOCKET: C54936
Simmons, Juriansz and Epstein JJ.A.
BETWEEN
Doreen Wilkinson
Applicant
(Respondent in Appeal)
and
Ian Wilkinson
Respondent
(Appellant)
Martha A. Cook, for the appellant
Kenneth J. Peacocke, for the respondent
Heard: July 20, 2012
On appeal from the order of Justice Kelly A. Gorman of the Superior Court of Justice, dated January 10, 2012.
APPEAL BOOK ENDORSEMENT
[1] The appellant appeals from an order granting leave to issue a writ of possession requiring that he vacate a home owned by his mother. In affidavits filed on the application the appellant alleged that he had done extensive work on the home and cared for both his parents in reliance on oral promises that he could eventually purchase the home. In addition, the appellant claimed an interest in the home by way of resulting or constructive trust. In the alternative, he claimed a right of occupation as a tenant.
[2] The application judge declined the appellant's requests to convert the application to an action or to adjourn the application to permit cross-examinations. Applying the test in RJR-MacDonald v. Canada, 1994 117 (SCC), [1994] 1 S.C.R. 311, she found:
There was no serious issue to be tried concerning the appellant's right to possession as the mother is the titled owner of the home.
Because the mother is 88 years old, on a fixed income and carrying the costs of two homes, she would suffer irreparable harm if the application were not granted – whereas the appellant would not suffer irreparable harm if the application were granted.
The balance of convenience favoured the mother as the appellant was paying nothing towards the carrying costs of the home.
[3] In the result, the application judge ordered that a writ of possession should issue.
[4] In our view, the application was properly granted. The only issue before the court was whether the title holder was entitled to possession. Although the appellant introduced evidence relating to a claim for a constructive trust, he had not commenced a counter-application or action. In other words, he had not applied to the court for relief as contemplated by Rule 60.10 (2). In these circumstances, the evidence adduced by the appellant was not relevant to the single issue before the court and there was no reason to convert the application to an action or to grant an adjournment for cross-examinations.
[5] As for the appellant’s alternative claim that he was a tenant, he had applied to the Landlord and Tenant Board for relief, but had asked that his application to the Board be stayed.
[6] In these circumstances, we see no impediment to the granting of a writ of possession. The appeal is therefore dismissed.
[7] The costs of the appeal are to the respondent on a partial indemnity scale fixed in the amount of $9,917.99 inclusive of disbursements and applicable taxes.