ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No: CV-14-501504
Date: 20150611

B E T W E E N:

Spar Roofing & Metal Supplies Limited, Craig Glynn and Wendy Glynn
Plaintiffs/Responding Parties

• and -

Grant Richard Glynn
Defendant/Moving Party

Lorne Silver,
for the Plaintiffs/Responding Parties

Suzana Popovic-Montag & David Freedman,
for the Defendant/Moving Party

Heard: June 3, 2015

WHITAKER J.

1Grant Glynn (“Grant”), Craig Glynn (“Craig”) and Wendy Glynn (“Wendy”) are siblings. Craig and Wendy own and control an Ontario corporation, Spar Roofing and Metal Supplies Limited.

2Craig and Wendy are plaintiffs. Grant is a defendant. Edward and Wanda were the siblings’ parents.

3Before they died, Edward and Wanda gifted a property to Grant. At the time of the gift, the property was jointly owned by them. Grant was put on title.

4The plaintiffs seek to have the gift of an interest in the property void. Craig and Wendy agree that Edward and his wife, Wanda Glynn, jointly owned the property in issue in the litigation and that they added Grant on title to the property as a joint tenant.

5Craig and Wendy say their parents were mentally incompetent when they made the gift to Grant, that Grant unduly influenced his parents, the land should be theirs and that the land given to Grant was orally promised to them by their father.

6The plaintiffs’ claims are brought to set aside the transfer of land. The plaintiffs plead that the property was leased to Spar by Edward in 1994. In the same year, Grant transferred his shares in Spar to Wanda.

7The plaintiffs plead that the property was the subject of oral promises made by Edward to Craig and Wendy, and that the property would be transferred to them as part of his estate plan. This statement of claim does not plead consideration being provided to Edward and/or Wanda, nor terms by which it could be said that title to the property was to be transferred by Spar. The plaintiffs agree that Grant was added to title as a joint tenant by Edward and Wanda on the transfer date.

8A pleading may be struck on the grounds that it discloses no reasonable cause of action or defence. In Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 1990 90 (SCC) the Supreme Court of Canada described the test as follows:

Assuming that the facts as stated in the statement of claim can be proved, it is “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action.

9A gift is not a fulfillment of an obligation. A donor may simply never make the gift if he or she does not wish to do so even if a promise was made. The plaintiffs do not plead any agreement existing between the defendant and them. The plaintiffs cannot sue for a third party and lack standing to set aside the gift to Grant.

10It is undisputed that the joint tenants prior to the transfer were Edward and Wanda. The plaintiffs have no financial interest or legal entitlement in the property.

11The oral promise to gift is not enforceable as a matter of law. The plaintiffs have no standing to bring a claim to divest the defendant of his interests in the property. The plaintiffs’ claims cannot be the basis for the relief which the defendant seeks.

12It is premature for the defendant to rely on the Statute of Frauds for striking out the claim under Rule 21. The defence need not be anticipated by the plaintiff and addressed in the statement of claim (Collins v. Cortez, 2014 ONCA 685 39 CCLI 5th 1 at para. 10).

13With respect to the plaintiffs’ pleading that substantiates a claim for performance, such performance permits against the strict application of the Statute of Frauds. Whether there is sufficient evidence of past conduct to bring the matter within the exception to the Statute of Frauds is an issue to be determined at trial and not at the pleading stage. (Mountain v. TD Canada Trust Company, 2012 ONCA 806 112 O.R. (3d) 721)

14The plaintiffs need not plead that Wanda was assessed by a certified capacity assessor, the manner of proof of her incapacity is a matter of evidence that should not be pleaded. The assertion by the defendant that she is presumed to have capacity is a matter of defence.

15On these facts, it cannot be said that it is plain and obvious that the statement of claim discloses no reasonable cause of action. In the alternative and in the event that the statement of claim may be deficient, the appropriate remedy is the extension of time within which to deliver a reply.

16The motion brought by the defendant moving party, Grant Richard Glynn, is allowed.

17There is no reason in the circumstances to depart from the usual rule that the unsuccessful party bears primary responsibility for costs. The parties addressed this briefly at the end of the hearing in the event of their success and both provided costs outlines. Having regard to the factors which underlie Rule 57 of the Rules of Procedure, I am particularly mindful of the requirement that the outcome should be within the reasonable anticipation of the losing party. The relationship between the process used and the final outcome in the matter should be one of proportionality.

18Costs payable to Grant are fixed at $20,000 inclusive of taxes and disbursements, payable forthwith.