Webster v. Burrough, 2016 ONSC 1603
CITATION: Webster v. Burrough, 2016 ONSC 1603
COURT FILE NO.: CV-16-6362
DATE: 2016/03/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
EDNA WEBSTER
Andrew D. Lawson, for the Applicant
Applicant
- and -
DONALD A. BURROUGH
No one appearing.
Respondent
HEARD: March 4, 2016
REASONS FOR DECISION
ellies j.
[1] The applicant requests an order for sole possession of property known municipally as 141 Lisgar Street, Sturgeon Falls, as well as an order vesting the property in her name only by removing the name of the respondent from title, pursuant to s.100 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. In the alternative, she seeks an order for partition and sale under ss. 2 and 3 of the Partition Act, R.S.O. 1990, c. P. 4.
[2] The applicant was unable to serve the application on the respondent. This is not surprising, given that the respondent stole the applicant’s car and left the jurisdiction shortly after he was charged with assaulting the applicant with a weapon on September 19, 2014. The respondent’s whereabouts since that date have been unknown to the applicant and, apparently, to the police. A Canada-wide warrant has been issued for his arrest.
[3] On February 5, 2016 I granted an order dispensing with service of the application upon the respondent and permitting the applicant to list the subject property for sale. At the time, I ordered that one-half of the proceeds of the sale of the property be paid into court pending the court’s further order. I adjourned the balance of the application to March 4 to permit counsel to provide me with authority for the vesting order requested by his client. When the matter resumed, I granted the orders sought and indicated that these reasons would follow.
[4] The facts supporting the application can be briefly stated. The applicant was disabled as a result of a serious motor vehicle accident in September, 2006. In December, 2007 she purchased a home located on Jocko Point Road, in North Bay. The parties met in October, 2008. In September, 2009 the respondent moved into the applicant’s home as part of an agreement to assist the applicant to maintain the home in exchange for the use of a room.
[5] In the summer of 2013, in order to move closer to the West Nipissing General Hospital, the applicant decided to sell her home on Jocko Point Road and to purchase the property on Lisgar Street. The purchase price of the property was $170,000. The applicant contributed just under $125,000 towards that purchase price from the proceeds of the sale of her home on Jocko Point Road. The respondent contributed nothing. On August 30, 2013, however, title to the property was put into the names of both the applicant and the respondent. The applicant deposes that the respondent was placed on title in order to secure a mortgage for the balance of the purchase price, in the approximate amount of $50,000.
[6] The applicant also deposes that at the time the Lisgar Street property was purchased, the parties had agreed that they would each share the time, effort and money required to maintain the property. However, prior to fleeing the jurisdiction, the respondent had contributed only $1,247.60 to the mortgage principal and $100 to the maintenance of the property. Of course, he has contributed nothing since September, 2014. The applicant has borne all of the expenses associated with the property.
[7] I am satisfied that the orders sought in this case should be made to remedy the unjust enrichment of the respondent.
[8] A finding of unjust enrichment will result where the applicant establishes three things, namely: (a) an enrichment of or benefit to the respondent; (b) a corresponding deprivation to the applicant; and (c) the absence of any juristic reason for the enrichment: Pettkus, at p. 784. The applicant has satisfied all three of these requirements. The respondent contributed nothing to the purchase price of the Lisgar Street property and has made only a small contribution to it since then. The applicant has borne all of the expenses associated with the property since the respondent left, including the mortgage, and continues to do so. There is no evidence that the respondent will ever return. Half of every contribution the applicant makes to the equity in the home inures to the benefit of the respondent and results in a corresponding deprivation to the applicant. There is no juristic reason why the respondent should be enriched in this way.
[9] Where real property is involved, constructive trusts are often employed by the court in order to remedy the unjust enrichment of one party at the expense of another. In Kerr v. Baranow, 2011 SCC 10, [2011] SCC 10, [2011] 1 S.C.R. 269, Cromwell J. wrote on behalf of the Supreme Court of Canada, at para. 50:
Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour (Pettkus, at pp. 852-53; Sorochan, at p. 50).
[10] In the circumstances of this case, I believe a constructive trust should be impressed upon the property for its full value. However, this remedy as between the parties should not affect in any way the validity or enforceability of the mortgage registered against the property, nor should it preclude the applicant from challenging the validity or enforceability of that mortgage, should there be some basis upon which to do so.
[11] For these reasons, an order shall issue:
(1) declaring that the applicant, Edna Webster, is the sole beneficial owner of the property municipally known as 141 Lisgar Street, Sturgeon Falls, ON, P2B 3H5 and legally described as LT 5 BLK 6 PL 35 Springer; West Nipissing; District of Nipissing and directing that the name of the respondent, Donald A. Burrough, be removed from title to the said property;
(2) that the aforementioned declaration shall not affect the validity or enforceability of the charge registered against the said property as registration number BS117867 granted to CIBC Morgages Inc., nor shall it preclude the applicant from challenging the validity or enforceability of the said charge;
(3) that the applicant, Edna Webster, shall have sole possession of the said property; and
(4) vacating that part of the court’s order of February 5, 2016 requiring that one-half of the proceeds of sale of the aforementioned property be paid into court.
[12] As I expressed during the hearing of the argument, it is my view that there should be no order as to costs in this matter given that the applicant was able to purchase the Lisgar Street property by placing the respondent on title and the fact that she has not had to face any opposition from the respondent to this application.
[13] In preparing these reasons, I noted that the application was not served on the mortgagee. While I do not believe that should affect the order in any way, I do believe that a copy of the order and these reasons should be served by the applicant on the mortgagee, and I also so order. The formal order shall therefore contain the following additional clauses:
(5) that there shall be no order as to costs; and
(6) that a copy of this order and the court’s reasons dated March 8, 2016 shall be served by the applicant on the mortgagee, CIBC Mortgages Inc., via ordinary mail.
[14] It goes without saying that the order may be taken out without approval as to form and content.
Ellies J.
Released: March 8, 2016
CITATION: Webster v. Burrough, 2016 ONSC 1603
COURT FILE NO.: CV-16-6362
DATE: 2016/03/08
ONTARIO
SUPERIOR COURT OF JUSTICE
EDNA WEBSTER
Applicant
– and –
DONALD A. BURROUGH
Respondent
REASONS FOR DECISION
Ellies J.
Released: March 8, 2016