ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS2632-10
DATE: 20130122
BETWEEN:
Julie Colline Groulx
Applicant /Moving Party
– and –
Michel Antoine Taillefer
Respondent /Responding Party
William Sangster, Counsel for the Applicant
Paul Murray, Counsel for the Respondent
HEARD: January 17, 2013
ENDORSEMENT
Ellies, J.
[1] Julie Colline Groulx and Michel Antoine Taillefer began a relationship in 1993 and lived together for a period of time in a home owned by Mr. Taillefer and his father. They began living separate and apart in that home in April of 2008. Ms. Groulx moved out in June of that year[^1]. In May of 2010, Ms. Groulx commenced an application in which she requested, amongst other things:
A declaration that the Applicant has a 50% interest in the property registered solely in the name of the Respondent … on the principles of implied, resulting and constructive trust.
[2] Ms. Groulx later brought a motion seeking leave to amend her claim "to include unjust enrichment". That motion was granted on August 10, 2011. Counsel for Mr. Taillefer advises that the motion did not proceed on consent, but was not opposed.
[3] Although he did not oppose the request previously, Mr. Taillefer now moves for summary judgment under Rule 16 of the Family Law Rules and an order dismissing the claim for unjust enrichment. He argues that the claim is governed by the two year limitation period set out in the Limitations Act, 2002 and that, because Ms. Groulx’s claim was commenced outside of that period, it is statute barred.
[4] Ms. Groulx argues that either the ten-year limitation period under the Real Property Limitations Act applies, or there is no limitation period at all because the claim is one based on equitable principles. Alternatively, she argues that the issue is a genuine one, requiring a trial.
[5] In my view, although the issue is one that could be decided in a summary judgment motion, it cannot be decided in this one. The record is not complete. The unsatisfactory state of the record gives rise to two issues.
[6] The first issue relates to the fact that Ms. Groulx’s claim has not actually been amended. Although it would appear that the claim was amended properly to reflect an unrelated change on one previous occasion, it was never again amended to reflect the order of Nadeau, J. made on August 10. It might be amended simply to include the words “unjust enrichment” in the portion of the claim that I have set out in paragraph 1, above. In that case, it might be appropriate for me to consider the provisions of section 16 of the Limitations Act, 2002, which provides that there is no limitation period in respect of “a proceeding for a declaration if no consequential relief is sought”. On the other hand, the amendment may be more extensive and require me to consider other issues. In any event, it would be dangerous, if not impossible, to grant summary judgment on a claim that has not yet actually been pleaded.
[7] The second issue is also a pleading issue. The response contains no plea of the limitation defence. In order to succeed at trial, a limitation defence must be pleaded (: Strong v. P. (M.M.) (2000), 2000 16831 (ON CA), 50 O.R. (3d) 70 (Ont. C.A.)). In my view, it would be illogical if a respondent could obtain judgment in a summary fashion on a defence that he could not succeed upon after a full trial because of a failure to plead the same.
[8] For these reasons, the motion is dismissed.
[9] I am not inclined to order costs, despite the provisions of Rule 16(10). One of the reasons that the motion was unsuccessful was because the applicant has failed to amend her application, as she is required to do after obtaining leave. In these circumstances, I believe that neither party should be awarded costs. If either party wishes to attempt to persuade me otherwise, written submissions, limited to 5 pages, exclusive of attachments, may be made as follows:
a. The applicant shall have 10 days from the date of the release of these reasons to serve and file her submissions;
b. The respondent shall have 5 days following receipt of the aforementioned submissions within which to do likewise; and
c. The applicant shall have 5 days thereafter in which to file any brief reply that may be necessary.
Written submissions will not be permitted outside of these time limits.
Ellies, J.
Released: 20130122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Julie Colline Groulx
Applicant /Moving Party
** - and - **
Michel Antoine Taillefer
Respondent /Responding Party
ENDORSEMENT
Ellies, J.
Released: 20130122
[^1]: See paragraph 6, page 6 and paragraph 9, page 7of the amended Application, as well as paragraph 10, page 3 and paragraph 11, page 4 of the Response.