Rolston v. Rolston, 2016 ONSC 2937

Court File No.: 13-2417 Date: 2016-05-16 Superior Court of Justice - Ontario

Re: Jane Darlene Rolston (Plaintiff) And: Jeffrey Randal Rolston and Joanne Rolston, Daniel Rolston and Kelly Suzanne Rolston (Defendants)

Before: Justice I. F. Leach

Counsel: Frederick E. Leitch, Q.C., for the plaintiff John Sipos, for the defendants

Heard: July 21, 2015

ENDORSEMENT

[1] Before me is a motion for summary judgment brought by the defendants, who seek formal dismissal of the plaintiff’s claim in whole or in part.

[2] The defendants rely principally on the suggested application of various limitation periods, (albeit with additional reliance on such matters as the equitable doctrines of laches, acquiescence and estoppel), in support of their position that there is no genuine issue requiring a trial in relation to the plaintiff’s claims.

[3] The responding plaintiff says that the defendants’ arguments lack merit, and that a trial is needed to achieve a fair and just adjudication of the issues.

Evidence - Background and chronology

[4] In support of their motion, the defendants filed affidavit evidence sworn by the defendant Jeffrey Randal Rolston, (“Jeffrey”), and a considerable number of documentary exhibits.

[5] The plaintiff, (Jane Darlene Rolston or “Jane”), responded by filing her own relatively brief affidavit, (without exhibits), which supplemented but generally did not contradict the evidence tendered by the defendants.

[6] For their part, the defendants filed no reply evidence contradicting the evidence tendered by the plaintiff.

[7] Both Jeffrey and Jane then were cross-examined on their respective affidavits. I have reviewed the transcripts provided in that regard, and think it fair to say that, while both sides explored the other’s evidence in more detail, and clearly dispute the legal significance to be attributed to certain events, no significant contradictions in the underlying evidence were highlighted.

[8] In the result, it seems to me that the facts and circumstances underlying this litigation generally are not in dispute, and may be summarized in detail as follows:

• The focus of this litigation is a rural farm property and residence located near the Town of St Marys, in Perth County. More specifically identified as “Part Lot 2, Concession South Boundary as in R308092 North of Elginfield Road, Perth South, County of Perth”, the property, (referred to hereafter as “the homestead”), has been in the Rolston family for a number of generations.
• Jane grew up on the homestead with her parents, (“Mr Rolston Senior” and “Mrs Rolston Senior”), her brothers, (Leonard Rolston or “Leonard”, and David Randal Rolston or “Randal”), and her sister, (Julie Stevens or “Julie”).
• It seems all four of the siblings gradually moved away from the homestead as they got older. For her part, Jane left the property in 1973, when she took up residence in Seaforth.
• Mr Rolston Senior died in 1975. That same year, Jane relocated to Kitchener, Ontario.
• By 1986, Jane was still working as a teacher in Kitchener, and had purchased a house there. She nevertheless visited the homestead on week-ends, providing home maintenance and other assistance to Mrs Rolston Senior, who continued to reside in the homestead farmhouse.
• In or about 1988, Mrs Rolston Senior transferred all title in the homestead by deed to Randal, who would continue to farm the property for the remainder of his life while residing elsewhere. Mrs Rolston Senior continued to reside in the homestead farmhouse.
• In 1995, Mrs Rolston Senior was 79 years old and experiencing significant health problems, (including Alzheimer’s disease and Parkinson’s disease), which rendered her incapable of living safely on her own. She therefore moved out of her residence at the homestead farmhouse, (leaving it vacant), and entered a retirement facility.
• By 1997, the still vacant homestead farmhouse was in need of repair and renovation, Jane had taken an early retirement package leaving her with no reason to stay in Kitchener, and Mrs Rolston Senior was not happy in her retirement facility. In those circumstances, according to Jane, (whose evidence on the following points was not contradicted by any evidence tendered by the defendants):
  • She approached her brother Randal in February of 1997, and proposed an arrangement whereby Jane would pay for renovations to the homestead farmhouse, (funded by the sale of Jane’s house in Kitchener)[^1], so that she and Mrs Rolston Senior could return and live there together.
  • Randal initially declined Jane’s proposal, indicating his intention to rent the homestead farmhouse to tenants. Jane accepted his decision, and indicated her intention to look for property elsewhere in the area of St Marys.
  • However, Randal changed his mind approximately two weeks later, and agreed with Jane’s proposal.
  • Specifically, Jane says that, in a conversation that took place only once[^2], in 1997, she and Randal agreed that Jane would fund and proceed with renovations to the homestead farmhouse, on the understanding that Jane could live in the house and recover maintenance and renovation costs from Randal when she no longer wished to live there.[^3] That understanding and agreement nevertheless were not reduced to writing.[^4] Nor did Jane and Randal discuss or agree on what would happen if Randal died before Jane did.
• Initial renovations to the homestead farmhouse began in April or May of 1997, and were completed by January of 1998. By that time, Jane had moved back to the homestead farmhouse, after selling her house in Kitchener to pay for the renovations.[^5]
• From January of 1998 until Randal’s death on April 28, 2007:
  • Randal continued to farm the homestead, (as one of numerous properties he owned), without sharing any of the corresponding farming profits with Jane, or receiving any request from Jane for such sharing.[^6]
  • Jane continued to live in the homestead farmhouse, without payment of rent, but incurring further effort and expenses in relation to that residence, including maintenance, renovations and improvements[^7], as well as the payment of certain municipal taxes and utilities.
  • Owing to her health, Mrs Rolston Senior never moved back to the homestead, and instead died at her retirement facility.
  • In or around 1999, Randal approached Jane, indicating that he was doing so on behalf of his son Jeffrey and Jeffrey’s wife Joanne Rolston, (“Joanne”), proposing a change in arrangements whereby Jane would exchange residences with Jeffrey and Joanne. In particular, it was suggested that Jane vacate the homestead farmhouse to take up residence in the house occupied by Jeffrey and Joanne in nearby St Marys, and that Jeffrey and Joanne would relocate to the homestead farmhouse, on the understanding that Jane “would have the deed”. However, Jane indicated a preference to remain in the homestead farmhouse “until [she] died or moved to Kingsway”, (the retirement facility to which Mrs Rolston Senior had moved), which ended further discussion about the proposal.
  • With the assistance of his solicitor, Ron White, Randall executed a will on March 24, 2004.
  • In conversation between Randal and Jeffrey that took place in or around April of 2005, (i.e., approximately two years before Randal’s death, although Jeffrey cannot “put an exact date” on the conversation, or recall how the topic came up apart from saying it may have formed part of a discussion concerning possible transfer of the homestead from Randal to Jeffrey), Randal described the arrangement he had with his sister Jane, concerning the homestead, as “a life lease on the house”. Jeffrey says that was the “one and only time” he and his father discussed the homestead farmhouse.
  • Jane acknowledges that, before Randal’s death, she made no monetary demand of him, or claim for repayment, in relation to the expenditures she had incurred in renovating the farmhouse. However, according to her uncontradicted evidence, she “kept saying to Randal”, “from January of 1998 until … the Saturday before he passed away”, that they needed a written agreement.
  • Despite Jane’s numerous requests, there was no agreement in writing between her and Randal, concerning the homestead, prior to Randal’s death.
• Randal died on April 28, 2007. Pursuant to the terms of his aforesaid will:
  • His sisters Jane and Julie were named as executors.
  • Randal confirmed his ownership of a number of properties, including the homestead.
  • The arrangement between Randal and Jane was addressed by provisions which read in their entirety as follows: “My sister, Jane Rolston, resides in a house on Lot 2 in the South Boundary Concession referred to above and she has the right to remain in occupation of that house during her lifetime pursuant to an agreement made between the said Jane Rolston and me. Any bequest of the farm property herein is subject to the rights of occupation of my sister, Jane Rolston.” [Emphasis added.]
  • All of Randal’s farm equipment and property, (including the homestead), was otherwise left to Jeffrey, subject to conditions obliging Jeffrey to make specified payments to Randal’s other two children, Daniel and Kelly Rolston, (“Daniel” and “Kelly”). In particular, Jeffrey was to pay each of his siblings $50,000 in equal $5,000 instalments over the next 10 years, and divide the net proceeds of any inherited real estate sale within the next 10 years equally with his siblings, (subject to deductions for any payments made to them by Jeffrey pursuant to the will, prior to any such sale).
  • Any and all further residue of the estate was to be divided equally between Daniel and Kelly.
• Administration of Randal’s estate proceeded over the course of the next 37 months, (i.e., between April of 2007 and June of 2010), and included the following developments:
  • Both Jane and Julie agreed to act as executors, and retained the services of Randal’s former solicitor, Mr White, to provide them with legal assistance in that regard. However, Jane says that she and Julie then actually “had very little to do”, as Mr White “did most of the work of the executrix”. In particular, Jane says Mr White would call Jane and Julie in periodically to “give a very scant account of what was happening”, and repeatedly tell the sisters to “sign here”, without providing them with a “run down” of what their responsibilities were.
  • A “Certificate of Appointment of Estate Trustee With a Will” was issued to Jane and Julie on August 9, 2007.
  • On September 4, 2007, title in one of Randal’s properties, (a residential property near Sebringville), was formally transferred from the estate to Jeffrey and Joanne. The couple subsequently secured a substantial bank line of credit against that property, and used that line of credit to fund renovations associated with making that property their family residence.
  • On October 31, 2007, Jane and Julie, expressly acting as estate trustees for the “Estate of David Randal Rolston”, executed a formal Letter of Direction to the credit union administering Randal’s RRSP, transferring the remainder of the term to a non-registered index in the names of Jeffrey, Daniel and Kelly, as beneficiaries.
  • On November 19, 2007, Mr White wrote to Jeffrey concerning the estate. Amongst other topics, the letter included reference to Mr White’s use of estate funds to pay all taxes and penalties owed in relation to Randal’s “farm properties”, and arrangements to have Jeffrey start paying taxes on those properties as of November 30, 2007, (prior to any formal transfer of title to the properties from Randal’s estate). In relation to Jeffrey’s inheritance of the remaining farm properties in Randal’s estate, (including the homestead), Mr White included the following comments: “I propose now to prepare necessary conveyances to turn the rest of the properties over to you. I propose to convey the lands from the executors of the estate to the following persons: Jeffrey Randal Rolston, Joanne Rolston, as joint tenants. Under the provisions of the last will and testament of your father the farm assets turned over to you are expressly charged with payment of the specified amounts to your brother and sister. The total amount owing ($100,000) will be secured by registered security (mortgage). When that mortgage is prepared and ready for registration my office will contact you with respect to having the mortgage documents executed prior to registration.” The letter contains no suggestion of Jeffrey (and/or his spouse) having to assume responsibility for any monetary obligations beyond the mortgage in favour of his brother and sister, before receiving title to Randal’s farm properties. Nor does Mr White’s letter refer to the provisions of the will concerning Jane’s entitlement vis-à-vis the homestead.
  • On December 19, 2007, Jeffrey and Joanne attended at Mr White’s office to sign an authorization and direction permitting electronic registration of the aforesaid mortgage, (securing their contemplated payment of $100,000.00 to Daniel and Kelly), to satisfy that condition of title transfer set forth in Randal’s will.
  • However, when Jane and Julie were “called in to sign the papers”, Jane indicated to Mr White that she would “not sign anything” until she had a “written agreement” whereby particulars of the responsibilities and obligations of her, Randall and Jeffrey would be “laid out clearly”. In that regard, she mentioned responsibility for payment of things like the cost of grass-cutting, tree-trimming and lane maintenance, but admits that she did not ask Mr White to create any document that would guarantee repayment of her renovation expenses at some point in time. Jane also acknowledges that she did not instruct Mr White, when he was managing the estate, to advise Jeffrey of the interest that she wanted to protect.[^8]
  • Jane says Mr White responded to her threatened refusal to sign documents, without first having her desired written agreement, by saying: “It doesn’t matter, you have to”. However, it seems Mr White then took at least some steps to address Jane’s interest in the homestead, when preparing documents for execution and use before and during the estate trustees’ formal transfer of title to the property. In Jane’s words: “I think he came through on the transfer … by personal representatives that there was some interest for me in the land”.
  • On December 27, 2007, before receiving deeds for specified farm properties owned by Randal at the time of his death, (including the homestead), Jeffery and Joanne were required to execute a formal “Acknowledgment and Undertaking”, (drafted by Mr White on behalf of the estate trustees, without input from the signatories). The obligations thereby assumed and confirmed by Jeffrey and Joanne in relation to the homestead, (apart from their obligations vis-à-vis Daniel and Kelly), included the following: “The undersigned, in consideration of receiving deeds for the above mentioned properties, hereby acknowledge and undertake as follows: … The lands in P.I.N. 53256-003 being north of the Elginfield Road are subject to a life interest in the house in favour of Jane Darlene Rolston. … We hereby acknowledge that the said provision in the Last Will and Testament of the said David Randal Rolston survives the delivery and registration of deeds for the said properties and does not merge with the said registration.” [Emphasis added.]
  • By way of a formal “Transfer by Personal Representative” dated and registered on December 28, 2007, Jane and Julie, (each acting in her capacity as a personal representative of Randal’s estate), transferred the homestead to Jane, Jeffrey and Joanne; in particular, to Jane in her indicated capacity as recipient of a “Life Estate”, and to Jeffrey and Joanne in their indicated capacity as “Joint Tenants”. (I note that, although the aforesaid “Acknowledgment and Undertaking” made reference to a “life interest in the house”, the formal transfer does not limit the life interest in a similar way, but instead formally transfers, to Jane, a “life estate” in relation to the homestead without qualification or limitation.) The formal “statement” on the document also contained express representations and confirmations that included the following:
    • “the personal representative has the authority to transfer the land under the terms of the will, if any, the Estates Administration Act and the Succession Law Reform Act”;
    • “the debts of the deceased are paid in full”; and
    • “no consents are required for this transfer”. [Emphasis added.]
  • Another formal document, entitled “Land Transfer Tax Statements”, also was prepared and submitted in relation to the aforesaid transfer of the homestead effected on December 28, 2007. It confirmed that that the homestead was transferred from Jane and Julie to Jane, (who received an unqualified “Life Estate” in the property, once again without any indication that Jane’s interest was limited to a life estate “in the house”), and to Jeffrey and Joanne, (who otherwise took the property as “Joint Tenants”). Moreover, the document expressly indicated that Jeffrey, Joanne and Jane each was “a transferee named in the above-described conveyance.” [Emphasis added.] I note that particular description of the three individuals was chosen, rather than a number of possible alternative descriptions expressly set out on the form which were passed over, including: “a person in trust for whom the land conveyed in the above-described conveyance is being conveyed”; and “a trustee named in the above-described conveyance to whom the land is being conveyed”. In other words, when describing the manner in which Jane, Jeffrey and Joanne were receiving their interests in the homestead by virtue of the transfer, an express choice was made to indicate that each of the three individuals was receiving their interest as a “transferee”, rather than as a trust beneficiary or trustee.
  • On the same date, (i.e., December 28, 2007), a $100,000.00 Charge also was registered against the homestead, securing a debt thereby assumed by Jeffrey and Joanne vis-à-vis Daniel and Kelly, in order to satisfy the further conditions of Randal’s will in relation to Jeffrey inheriting Randal’s farm properties, and therefore to acquire title to the homestead. No other charge was registered by the estate trustees against the estate’s assets.
  • Jane acknowledges that, prior to the transfer of title in the homestead to Jeffrey and Joanne, and their assumption of the associated $100,000.00 mortgage, Jane did not advise them that she would be claiming reimbursement of her renovations expenditures when she no longer wished to reside at the homestead. Nor did she advise the couple of any need to budget for payment of an additional sum in that regard, on top of the mortgage they were assuming. That was deliberate, as Jane felt such matters were “to be discussed later”.
  • On April 30, 2010, Kelly executed a “Release to Executor(s)”, waiving all further claims in relation to the estate, in exchange for receiving a $26,475.84 payment representing her share of the estate as a joint beneficiary of the estate residue.
  • On June 2, 2010, Daniel executed a similar “Release to Executor(s)”, in exchange for a payment similar to the one received by Kelly.
  • Administration of the estate was completed on or before June 7, 2010. Amongst the information set forth in the final “Statement of Money Received and Disbursed” and associated cover letter prepared by Mr White, and sent by him to Jane and Julie that day:
    • there are indications that each of the two sisters received $5,125.00 in executor’s compensation;
    • there is mention of a $553.76 disbursement made to Jeffrey in relation to “trucking” services provided to the estate[^9]; and
    • apart from the aforesaid reference to executor’s compensation, there is no mention whatsoever of any claim by Jane against the estate, or of any further obligation owed by the estate to Jane.
• During the course of the estate’s administration, but after the homestead had been formally transferred from Jane and Julie (as estate trustees) to Jane, Jeffrey and Joanne (as transferees) in the manner set out above, and with the above statements and representations, Jeffrey and Joanne began receiving suggestions and/or requests concerning possible further discussion and agreement concerning rights and obligations as between Jane, on the one hand, and Jeffrey and Joanne on the other. That correspondence includes the following:
  • On January 17, 2008, (approximately three weeks after formal transfer of the homestead from the estate trustees to Jane, Jeffrey and Joanne), Mr White wrote to Jeffrey and Joanne. Documents attached to the letter included copies of a Transfer Registration Receipt, (described by Mr White as transferring title in the homestead, and including “a notation acknowledging the life interest of Jane Darlene Rolston in the land”[^10]), and a Charge Registration Receipt, (acknowledging the $100,000.00 owed by Jeffrey and Joanne to Daniel and Kelly). In his cover letter, Mr White confirmed that the transfer of title to the homestead had been completed on December 28, 2007, but went on to suggest the making of further efforts to “straighten out the particulars of the agreement” referred to in Randal’s will, so that Jeffrey and Joanne “as owners”, and Jane “as life tenant”, would “understand [their] respective rights and obligations in respect of the house property as to taxes, repairs, maintenance, insurance costs, etc.” No mention is made, in Mr White’s letter, of any possible obligation of Jeffrey and Joanne to reimburse Jane for the cost of any of her renovation expenditures. Jane says she never received a copy of that letter, and denies having received any similar letter from Mr White.
  • On September 7, 2008, Jane wrote directly to Jeffrey to express concerns about Randal’s estate arrangements and her entitlements vis-à-vis the homestead. In particular, after reference to the exchange of farm property tax documents, Jane’s letter closed with the following comments: “In addition, as mentioned to you in January of this year, I am very unhappy with the vague phraseology regarding ‘a house’ in your Dad’s will. As I would like to get my will/estate documents in order, a clear understanding and a written agreement regarding the house is essential. Therefore, hopefully we can meet at your earliest convenience to draw up an agreement that is just and fair to each other. Perhaps we need to seek legal counsel. I look forward to hearing from you.” Although Jeffrey says in his evidence that this was the first notice Jane had given to him “about the issue of [his] father’s Will and the house on [his] father’s property”, I note that the letter refers to Jane’s unhappiness with the wording of the will being “mentioned” by Jane to Jeffrey in January of 2008, (after formal transfer of the homestead from the estate trustees to Jane, Jeffrey and Joanne), and the suggestion of such a “mention” was not contradicted in Jeffrey’s later correspondence. However, I also note that, even if the occurrence and timing of that suggested “mention” is accepted, and its precise content was expansive enough to convey not only unhappiness but a desire for a written agreement to document the existence of some broader entitlement vis-à-vis the homestead farmhouse, there still is no evidence to indicate or suggest that Jane’s concerns about Randal’s estate arrangements and her entitlements vis-à-vis the homestead farmhouse were ever brought to the attention of Jeffrey and Joanne prior to the aforesaid “Acknowledgment and Undertaking”, land transfer, assumption of mortgage and related representations that occurred on December 27-28, 2007. Moreover, as noted in more detail below, Jane herself confirmed during cross-examination on her affidavit that she never told Jeffrey or Joanne, prior to this litigation, about the details of the understanding she had reached Randal concerning the homestead, including Randal’s agreement that Jane she would be reimbursed for her renovations expenditures.
  • In his responding letter of September 22, 2008, Jeffrey apologized for the delay in answering Jane’s correspondence, and explained that the time he and Joanne had available was limited owing to the arrival of a baby and pressing farm obligations. While indicating that the couple “would be happy to discuss” Jane’s concerns about Randal’s will, Jeffrey also expressed the view that the will itself was a “written agreement”, and questioned why Jane would need anything further in relation to her estate planning. He proposed having further discussion about the matter once he had “put the combine away for the winter”, and hoped that was acceptable to Jane.
  • There is no evidence of any further correspondence being exchanged in relation to such a discussion, prior to administration of Randal’s estate being completed. However, as noted below, much later correspondence sent by Jane, (in May and July of 2011), indicates that she and Jeffrey met to discuss matters in late November of 2009, after Jane had previously indicated to Jeffrey, “on a couple occasions”, her view that preparation of a written agreement was needed. Jeffrey agrees there was such a meeting at the homestead farmhouse, at Jane’s request, in November of 2009. However, he emphasizes that Jane simply advised him she wanted a written agreement regarding the house, for her protection, without indicating what terms, definitions or content she was proposing. For her part, Jane did not suggest otherwise. To the contrary, during cross-examination on her affidavit, she confirmed telling Jeffrey during the meeting that she had a “hard time coming up with issues”, and says that “he didn’t come up with any issues” either before they parted. More generally, Jane confirmed that, throughout all of her requests to Jeffrey and Joanne for a written agreement, (in subsequent correspondence or otherwise), she never conveyed or disclosed her understanding of the agreement she had reached with Randal, nor any of the terms Jane wanted to document in a written agreement, including any term dealing with reimbursement of the renovation expenditures she had incurred. Jane said she was “waiting on the discussion”, in that regard, and questioned why she would disclose such information “before the actual sit down”. Moreover, she emphasized that what she had in mind would not necessarily be the same agreement as the one reached between her and Randal, as “times change” and “Randal [was] gone”.
• As noted above, administration of Randal’s estate was completed on or before June 7, 2010. At no time before then had Jane advanced any formal claim against Randal or his estate. During cross-examination on her affidavit, Jane herself acknowledged: that she understood one of her responsibilities as an estate trustee was to address debts of the estate; that she did not discuss her renovation expenses and expectation of reimbursement with Julie, (her fellow estate trustee); and that she never presented Mr White or Jeffrey with any of the information she had been compiling, and had in her possession, concerning the expenditures she had made towards renovations, in respect of which she expected reimbursement. Moreover, Jeffrey says, (without contradiction from Jane), that Jane never alerted him or the other estate beneficiaries to her potential claim against the estate, and similarly withheld her intention to prosecute a claim after Jeffrey had received his inheritance and the estate had been settled. Jane says that she was “waiting for the agreement”, and “didn’t consider the house as part of the estate that was being settled”. She felt “it was a separate issue”, and that her “predicament” was not “part of the settlement of Randal’s estate”.
• After Randal’s estate had been fully administered, Jeffrey and Joanne continued to receive and respond to suggestions and/or requests from Jane concerning possible further discussion and agreement concerning their respective rights and obligations. Surviving records of correspondence in that regard include the following:
  • On May 23, 2011, Jane sent a further letter to Jeffrey, under the heading “Re: Property Agreement”. It opened by referring to Jane’s recollection of a meeting between her and Jeffrey “in late November 2009 to discuss the house/property dilemma”. It went on to discuss her ongoing unpleasant feelings of discomfort and burden “in not knowing what the future holds for [her] in terms of stability, certainty and security”, which she described as “a situation that has existed since 1998”. She wanted a “formal agreement in place” so that “the ‘vague’ entitlement” in Randal’s will” would be “clearly defined”, as it was her strong belief that she was “entitled to much more than that of a ‘life estate’ remuneration”. In particular, she felt that she was entitled to “ownership of the house and house property if Perth South passes the severance issue”. She asked Jeffrey to advise her in writing of what he might “perceive to be a fair and just settlement in the resolution of this awkward situation”, and indicated that she also required “answers to questions” she had regarding upkeep of the homestead farmhouse, surrounding buildings, and associated yard work. She closed her letter by repeating her desire to have the “situation resolved very soon” by arriving at “a mutually agreeable arrangement that is fair to both parties”.
  • On June 23, 2011, Jeffrey and Joanne sent Jane a responding letter, authored by Jeffrey. It emphasized that the couple was “in no situation to be able to make any decisions at [the] time”, and did not see themselves “being able to commit to any financial decisions”, having regard to their young family, recent health complications, and maintenance of the family farms. More generally, however, Jeffrey indicated the couple’s disagreement with Jane’s requests. In particular, the letter concluded with the following remarks: “Joanne and I don’t agree that we should financially pay for a decision that was made between yourself and my Dad. We are purchasing the property through the estate as left in Dad’s will. If at the time Perth South passes any severance laws, we can talk about it again at that time. As for helping you with any maintenance issues, please call me and I will see what I can do. Again, we have little funds that need to go a long way, so keep that in mind.”
  • On July 27, 2011, Jane responded by sending a further letter to Jeffrey, the substantive portions of which, with their original text, grammar and punctuation, read as follows: “Your response to my letter does not provide any comfort or satisfaction. I asked your father on numerous occasions for him and me to get together to prepare a written agreement. He always said ‘Yes’ but nothing happened. (To re-iterate, your father and I had NO agreement although his will states that we did.) During your father’s estate settlement meetings with Mr. White, I expressed my dissatisfaction and concern with the vagueness of the clause in his will regarding my situation and asked that the lifetime vested interest reference be defined, all of which was basically ignored. Before you and I met in November of 2009, I mentioned to you on a couple of occasions that we need to prepare a written agreement. I have tried since 1998 to get an agreement. I am tired of ‘slave’ status - - continuing to pay out, to maintain the house property, to repair house-related problems, to do all the work as if I own the ‘place’ but cannot call it my own. Little to no upkeep of the other buildings has been done since 1988. Maintaining harmony in the family is important to me but so is my certainty. I am, therefore, intending on retaining legal counsel to consider my situation. Unless I hear from you by August 5, Jeff, I will proceed to consider my options.”
  • Despite the position and threat of legal action expressed in Jane’s letter of July 27, 2011, (if she failed to receive a response from Jeffrey within a week), there is no record or other evidence of further correspondence between her, Jeffrey and Joanne until November 16, 2011. At that time, the couple wrote to Jane indicating that they were preparing their year-end “paperwork”, and therefore were following up on a number of unpaid “invoices”. Specific mention was made of an invoice relating to repairs made to Jane’s lawnmower, and Jane’s payment of the “final 2010 property taxes” said to be owed to Jeffrey and Joanne.
  • That last-mentioned letter from Jeffrey and Joanne, requesting payments from Jane, prompted a lengthy and stern written response from Jane on December 29, 2011. It enclosed payments in relation to 2010 and 2011 taxes on the homestead, but indicated that Jane had “no intention” of paying “the bill for the lawn tractor”, having regard to efforts, (described in detail), which she and others had made to assist with grass-cutting and associated equipment at the homestead before and after 1998, without reimbursement. Jane’s letter then went on to outline numerous other maintenance costs and efforts she had expended in relation to the homestead since 1998; for example, in relation to lawn-cutting, a tree service, repairs to the “north shed”, repairs to the “red shed”, repairs to the garage, landscaping, cleaning of the house and “playhouse” roof areas, and payment since 1998 of all hydro for the property, (including hydro expended in buildings other than the homestead farmhouse). The final paragraphs of the letter included the following comments: “In my letter to you, Jeff, dated July 27, 2011, I indicated to you that your letter of May 23, 2011, did not provide any satisfaction regarding my situation and that I require a written agreement. To re-, re-, re-iterate, (sic), your father and I had no agreement even though his will stated that we did. We have been together to draw up a written agreement. I have been trying since 1998 to get such a document and since 2007 to get one between you and me. I have spoken with five lawyers, and they have all said basically the same thing. They all agree that we need a written agreement. … My belief is that you have no intention of doing anything. I had hoped that we would have settled this amicably and before now. For me, time and patience are running out. I am asking for a written agreement along with a just and fair resolution. As a result, on Tuesday, December 20, I met with my lawyers and gave them permission to proceed with legal action. If you decide, Jeff, that you would like to discuss a resolution and to draw up a written agreement in early January that is fair and just, please advise me. Otherwise, you will be receiving a letter from my lawyers in January 2012. Although I do not wish the decision to be made through the courts, I am prepared to travel the road that will bring the quickest closure to this situation once and for all, at whatever the cost…” (In her responding affidavit, Jane says she “knew with certainty”, in December of 2011, “that Jeffrey and Joanne breached the agreement [her] late brother made with [her]”.)
  • On May 28, 2012, all parties and their respective lawyers attended a meeting to discuss the situation.
  • On June 21, 2012, the defendants’ solicitor wrote to the plaintiff’s lawyers, confirming that the defendants disputed the legal basis of the plaintiff’s claims.[^11] Amongst other indications, the letter made clear the defendants’ position that the life estate granted to the plaintiff was her compensation for any improvements made to the property, and that certain claims made by the plaintiff could only be asserted at the time of surrendering the plaintiff’s interest in the property. Moreover, the defendants indicated that they were only willing to consider sharing in the cost of future “major structural work” in relation to the homestead farmhouse on a “goodwill basis, precluding any quantum meruit claim”, and only after giving written consent “well in advance of any such improvements”.
  • On July 13, 2012, Jane and her lawyers obtained a professional appraisal, (prepared by Murray Bechtel of Lohmer Real Estate & Appraisals Ltd.), estimating that the homestead farmhouse would have a market value of $270,000.00. However, that estimate expressly was based on “extraordinary assumptions & limiting conditions” which included an assumption that only 1 acre and dwelling of the 55 acre was being appraised, (at the request of Jane and her lawyers). Moreover, Mr Bechtel emphasized that although the assumption was made, in preparing his appraisal, it was “hypothetical only as no investigation was performed to understand if the subject could actually be legally severed” from the remainder of the homestead. Furthermore, “no history or investigation of the other 54 acres on the subject was performed”.
  • On October 8, 2012, Jane sent Jeffrey a further and apparently final letter before litigation. The correspondence made reference to numerous meetings over the previous 6-7 months, (including the aforesaid meeting in May of 2012, and subsequent meetings between Jane and her lawyers), and preparation of a draft statement of claim which Jane attached to her letter. The correspondence went on to include comments emphasizing Jane’s belief that she was “entitled to more than ‘just the house’”, and “that Mr White did not handle the estate closure properly and satisfactorily to all parties involved”. The letter ended with paragraphs that included the following remarks: “If you truly and sincerely wish to meet and draw up an agreement, Jeff, to be completed and signed within the very near future, please let me know not later than this Wednesday, October 10, by 9:30pm. Otherwise, I will contact my lawyers and have the ‘Statement of Claim’ served to everyone in the ‘Draft’ copy. Please understand that I am not threatening you in any way. This is for real. I just want to settle - - it has been 14 years – and get on with my life…”
• No further documented agreement was ever reached between Jane, Jeffrey and Joanne in relation to the homestead.
• On March 22, 2013, Jane then commenced this proceeding by way of an initial statement of claim which named only Jeffrey and Joanne as defendants. The body of the pleading indicated Jane’s reliance on expenditures she was said to have made to the homestead from 1997 onwards. The pleading’s prayer for relief included claims for:
  • “a proprietary constructive trust” in the homestead;
  • “an equitable mortgage” against the homestead in the amount of $212,769.35, (said to be the sums “expended to remedy dilapidation of the dwelling house on the subject lands”, particularized later in the pleading); and
  • an alternative claim for “an accounting of farm profits” from the homestead since 2007, as well as “a declaration of entitlement thereto to the present and during the lifetime of the plaintiff”.[^12]
• Notwithstanding the onset of this litigation, Jane has continued to reside in the homestead farmhouse since Randal’s death, without payment of rent. She has not made any contribution to the payment of municipal taxes on the homestead for the years 2012 onward, apparently on the basis that any obligations she may have in that regard should be set off against the sums she feels she is owed by Jeffrey and Joanne. While acknowledging that the “vast majority” of renovation expense in respect of which reimbursement was being claimed was incurred before Randal’s death, Jane says she also has “continued to live in and improve and maintain the farmhouse” since then. In that regard, Jane acknowledges, (and Jeffrey emphasizes), that Jane has neither sought nor obtained consent or permission for any improvements she has made to the homestead since 2007, and its transfer from Randal’s estate.
• For their part, Jeffrey and Joanne continue to own and farm the three farm properties that formed part of Randal’s estate, including the homestead. They nevertheless do not reside on any of those properties. They instead live, with their family, in a residence located on a fourth property inherited from Randal; i.e., one located close to nearby Sebringville, Ontario.
• Jeffrey and Joanne filed a statement of defence and counterclaim on May 10, 2013. Their pleaded defence included reliance on the Limitations Act, 2002 S.O. 2002, and assertions that Jane missed the applicable limitation period for asserting a claim against Randal or his estate. In addition to highlighting the benefits received by Jane through her rent-free occupation of the property, the pleaded defence also included a denial of Jane’s alleged improvements to the homestead, as well as allegations that the farmhouse actually adds nothing to the value of the homestead, which instead depends on the current price per acre of arable and workable land in Perth County. The pleaded counterclaim focused on Jane’s refusal to pay property taxes in relation to the homestead.
• On March 18, 2014, the plaintiff was granted leave to amend her statement of claim, so as to add Daniel and Kelly as defendants to the action, (given their right to share in the net sale proceeds if the homestead is sold within ten years of Randal’s death), and to include a request for partition and sale in relation to the homestead, pursuant to the Partition Act, R.S.O. 1990, c.P.4.
• On July 21, 2014, all four of the defendants filed an amended statement of defence and counterclaim, in which Daniel and Kelly joined with Jeffrey and Joanne in their original pleading. The defendants also supplemented the original defence pleading by relying on the equitable doctrine of laches, and by pointing out that Jane’s claim for partition and sale would violate both the applicable zoning by-law and official plan.
• At the time of her responding affidavit in September of 2014, Jane estimated that the homestead farmhouse would be worth at least $250,000.00, if severed, “with a one acre lot”, from the remainder of the homestead farm property.

[9] Finally, in relation to Jane’s formal request for partition and sale of the homestead, I also note the following:

• The homestead is subject to the Comprehensive Zoning By-Law of the Corporation of the Township of Perth South, (By-Law #4, 1999), as well as the County of Perth Official Plan.
• The defendants assert, (and it was not disputed by the plaintiff), that both the By-Law and the Official Plan generally prohibit the severance of the homestead farmhouse from the remainder of the homestead farm lot.
• Jane believes that the local “Land Division Committee” or “Committee of Adjustments” of the Township of Perth South has the ability to approve such a severance, (an ability Jeffrey did not dispute in cross-examination), but also believes that such a severance is “highly unlikely in the absence of a Partition Order from this Court”.
• At no point during her occupation of the homestead farmhouse has Jane sought severance or any minor variance from the local Committee of Adjustment for the Township of Perth South.
• Similarly, at no point during her occupation of the homestead farmhouse has Jane sought an amendment to the Official Plan to allow severance of the farmhouse and the land immediately around it from the remainder of the farm property at the homestead.
• Jeffrey has indicated that he currently is not in a position to support an application for severance, as his children may wish to farm and need a place to live.

[10] With the above facts and circumstances in mind, I now turn to more detailed consideration of the defendants’ motion for summary judgment.

Analysis

[11] I begin with consideration of whether this matter is amenable to adjudication by way of summary judgment, as suggested by the defendants.

SUMMARY JUDGMENT

[12] Pursuant to Rule 20.01(3) of Ontario’s Rules of Civil Procedure, a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in a statement of claim.

[13] Numerous additional “sub-rules” outline the manner in which the court must approach such a motion, and the powers the court has in that regard. They include the following:

• Pursuant to Rule 20.02(2), a plaintiff responding to such a motion may not rest solely on the allegations or denials in his or her pleadings, but “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”. This has been supplemented by repeated judicial admonitions emphasizing, in various ways, that a respondent to a such a motion is not permitted “to sit back and rely on the possibility that more favourable facts may develop at trial”, and is instead required to “lead trump or risk losing” and “put its best foot forward”, as “the court is entitled to assume that the record contains all the evidence the parties would present at trial”. See, for example: Pizza Pizza Ltd v. Gillespie (1990), 1990 CanLII 4023 (ON SC), 75 O.R. (2d) 225 (Gen.Div.); 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547 (C.A.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen.Div.); and Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, [2012] O.J. No. 4309 (C.A.).
• Pursuant to Rule 20.04(2), the court is obliged to grant summary judgment if it satisfied “that there is no genuine issue requiring a trial with respect to a claim”.
• In making that determination, the court is to consider the evidence submitted by the parties, and pursuant to Rule 20.04(2.1), may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, “unless it is in the interest of justice for such powers to be exercise only at trial”. In the exercise of those powers, the court also has the ability, pursuant to Rule 20.04(2.2), to order presentation of oral evidence by one or more of the parties; i.e., to direct a “mini-trial”.
• Where the only genuine issue is the amount of the plaintiff’s entitlement, the court has the ability, pursuant to Rule 20.04(3), to order a trial of that issue, or grant judgment with a reference to determine the amount. Similarly, pursuant to Rule 20.04(4), where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly.[^13]
• Where summary judgment is refused or granted only in part, the court has powers, pursuant to Rules 20.05(1) and (2), to specify what material facts are not in dispute, define the issues to be tried, order that the action proceed to trial expeditiously, and make numerous further orders and directions that may be just in the circumstances.

[14] In Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada encouraged the use of Ontario’s summary judgment rule to resolve cases in an expeditious manner provided that can achieve a fair and just adjudication.

[15] Speaking for the court, the comments of Justice Karakatsanis in that regard included the following, (at paragraphs 1, 2 and 27 of the Hyrniak decision):

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. …

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect the modern reality and recognize that new models of adjudication can be fair and just. …

There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

[16] Consistent with that general approach and philosophy, Justice Karakatsanis indicated, at paragraph 22 of Bruno Appliance and Furniture, Inc. v. Hyrniak, 2014 SCC 7, [2014] 1 S.C.R. 87, (a companion action to Hyrniak v. Mauldin, supra), that summary judgment would be appropriate where a matter “can be resolved in a fair and just manner”, which will be the case when the process:

i. allows the judge to make the necessary findings of fact; ii. allows the judge to apply the law to the facts; and iii. is a proportionate, more expeditious and less expensive means to achieve a just result.

[17] Justice Karakatsanis went on to say, in the same paragraph, that if there appeared to be a genuine issue requiring a trial, based only on the record before a judge hearing a summary judgment motion, that judge must then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. If so, those powers may then be used at the judge’s discretion, “provided that their use is not against the interest of justice”.

[18] In my view, with the exception of Jane’s claims for an accounting of farm profits since 2007, the issues raised and addressed by the parties in this particular context “can be resolved in a fair and just manner”, based on the criteria outlined by the Supreme Court of Canada.

[19] As noted above, the evidence filed on the motion before me did not suggest or indicate any significant dispute as to the facts underlying those other issues, or associated matters of credibility or reliability that required further exploration and resolution. More generally, in my view there are no further necessary findings of fact required to address and resolve most of the issues raised by the defendant’s motion, even without resort to the additional powers outlined in Rules 20.04(2.1) and (2.2).

[20] Moreover, for the reasons that follow, I think the particular circumstances of this case allow me to apply the law to the facts permitting partial summary judgment, in a manner that will achieve a just result of numerous issues between the parties by means that are proportionate, more expeditious and less expensive that committing all parties to the further delay and expense of a trial in relation to most aspects of the plaintiff’s claims.

OVERVIEW OF ANALYSIS AND CONCLUSIONS

[21] Given the number of issues raised by this motion, I think it helpful at the outset to provide an overview of my analysis and conclusions, before embarking on a more expansive and detailed discussion in that regard.

[22] Accordingly, for reasons that will be set forth in more detail below, in my view:

• Apart from possible concerns regarding applicable limitation periods and/or the equitable doctrines of laches, acquiescence and estoppel, (to which I will return), Jane had an enforceable claim vis-à-vis Randal. In particular, as against Randal, Jane was entitled to claim an interest in the homestead commensurate with that which she was promised pursuant to her oral understanding and agreement with Randal, (an entitlement that was to include eventual repayment of her renovation expenditures, which was not encompassed within the registered life estate in the homestead Jane later received from Randal’s estate), notwithstanding the fact that the agreement between the two siblings was never reduced to writing.
• While Randal was alive, Jane’s claim vis-à-vis Randal in relation to the homestead, based on the siblings’ oral agreement, was subject to the 10-year limitation period set forth in section 4 of the Real Property Limitations Act, R.S.O. 1990, c.L.15.
• A good deal of time and attention was devoted to questions of whether that limitation period had run its course in relation to Jane’s possible claim against Randal, and what impact Randal’s death would have had on Jane’s possible claims against Randal’s estate in that regard, (including the more particular question of what limitation period would have applied to such a claim by Jane against Randal’s estate). In my view, Jane’s possible claims against Randal were not barred by any applicable limitation period at the time of Randal’s death. Nor were Jane’s possible claims against Randal’s estate barred by any limitation period by the time the homestead was transferred from the estate to Jane, Jeffrey and Joanne. As for whether Jane’s claims against Randal’s estate would have been barred by the time this litigation was commenced, in my view that is not a question which requires formal determination for the purposes of this motion. The simple reality of the matter is that the motion before me concerns the claims advanced by Jane in this action, and the claims in question have not been advanced by Jane against Randal’s estate. They are instead claims advanced by Jane directly against individuals who currently have interests in a property that formerly belonged to Randal and his estate. The proper focus of this summary judgment motion accordingly should be on whether there are any issues requiring trial in relation to those claims, against these named defendants.
• In my view, the limitation period applicable to Jane’s claims against the defendants in relation to the homestead is the same as that which would have applied to similar claims by Jane against Randal while he was alive, (i.e., the same ten-year limitation period set forth in section 4 of the Real Property Limitations Act, supra), and that limitation period has not expired as far as Jane’s claims against the defendants are concerned. There is no way, given the law and the circumstances of this case, in which that limitation period has run its course against the defendants to this action. It accordingly does not present any obstacle to the advancement of Jane’s claims against the defendants to this action.
• Having said that, while Jane’s ability to advance such claims against the defendants is not barred by the applicable limitation period, in my view a number of those claims fail on their merits, and there is no genuine issue for trial in that regard.
• In particular, while Jane arguably would have succeeded in her claims against Randal and/or his estate for a proprietary constructive trust and/or an equitable mortgage to recognize her claimed entitlements to the homestead, (promised to her by Randal in his oral agreement, and exceeding the entitlements flowing from the registered life interest Jane eventually received), in my view the same is not true in relation to Jane’s similar claims vis-à-vis Jeffrey and Joanne. To the contrary, Jeffrey and Joanne are not bound to recognize and abide by the more extensive entitlements vis-à-vis the homestead that were promised to Jane by Randal in the siblings’ oral agreement. Jeffrey and Joanne assumed no trust or other obligations in that regard, and personally have done nothing giving rise to an action against them for unjust enrichment or corresponding remedies. Jeffrey and Joanne instead took their title to the homestead as bona fide purchasers for value, without notice of Jane’s claim to any beneficial interest in the property exceeding the normal rights flowing from her life estate. Moreover, in my view, any possible equitable claims Jane may have had in that regard vis-à-vis Jeffrey and Joanne, (e.g., for a proprietary constructive trust and/or equitable mortgage), are barred by considerations of laches, acquiescence and estoppel. In my opinion, as there are no genuine issues requiring trial in relation to those particular claims against Jeffrey and Joanne, they are entitled, at the least, to partial summary judgment dismissing Jane’s claims in that regard.[^14]
• Notwithstanding the above, Jane still has entitlements flowing from her registered and unqualified life estate in the homestead, (the existence and extent of which has not been made the subject of any formal challenge), and in my view this is sufficient to sustain at least one of her remaining alternate claims against Jeffrey and Joanne. In particular, a life interest in the homestead inherently and normally would include a right to share in some or all of the net income generated by that property during the course of Jane’s life estate, and no evidence was presented on this motion to suggest why the life tenant should not receive such income in this case. Jane’s claim in that regard vis-à-vis Jeffrey and Joanne, (i.e., for an accounting of farm profits generated by the homestead “since 2007”, which inherently limits the claim for an accounting to the period of Jane’s life interest in the property), accordingly should and will survive the defendants’ motion for summary judgment. In my view, there are genuine issues for trial in that regard; e.g., to quantify net income from the homestead during the course of Jane’s life estate, making due allowances for the effort and expense required to generate such income, in respect of which Jane seems to have made no contributions at least insofar as the farming operations are concerned. No effort was made in the context of this motion to address such issues, as the focus of the motion was on whether Jane had the right to advance such claims at all. As Rule 20.04(5) suggests, a more appropriate means of addressing Jane’s claim for such an accounting might be the granting of a judgment in relation to that claim, with a reference to take the accounts. However, as noted above, Rule 20.04(5) strongly suggests that approach should be regarded as available and appropriate in the summary judgment context only in situations where the plaintiff is the moving party, and the defendant fails to satisfy the court that there is a preliminary issue to be tried. For immediate purposes, I think it sufficient to find that the defendants’ motion for summary judgment dismissing Jane’s claim for an accounting fails, as the defendants have not satisfied me that there are no issues requiring a trial in that regard.
• As for Jane’s request for relief pursuant to the provisions of the Partition Act, supra, I think Jane’s life interest in the homestead formally entitles her to seek such relief by way of application or action, (as she has done in this proceeding), according to the provisions of the legislation. Having said that, in my view her requests for relief in that regard must be denied on their merits. In particular:
  • The court order she seeks directing partition of the homestead, (so as to leave her with exclusive title to the farmhouse and an acre of the land now forming part of the entire 55 acre homestead), should not be granted in the circumstances. Her desired partition outcome is not legally possible, having regard to applicable official plan and by-law provisions. Partial summary judgment dismissing Jane’s claim against all the defendants for her desired partition order therefore also should be granted, albeit without prejudice to Jane’s ability to make a further request for such a court order if and when necessary consent is obtained through the mandated administrative law procedures.
  • An order directing sale of the homestead, and distribution of the resulting net proceeds, similarly should not be granted. The authorities emphasize that a sole tenant for life should not be permitted to obtain a court order directing the sale of land under the Partition Act, supra, without the consent of those holding the remainder interest in the land, and against their reasonable opposition. In this case, Jeffrey and Joanne are not consenting to such an order of sale, and I think their opposition to such a sale is reasonable, having regard to all the circumstances. Partial summary judgment dismissing Jane’s claim against all the defendants for sale of the homestead therefore also should be granted.

[23] In the result, the defendants’ motion for summary judgment will be granted in part, dismissing all of Jane’s claims against the defendants with the exception of her claim for an accounting of farm profits associated with her life interest in the homestead, and without prejudice to her ability to make a further request for an order of partition pursuant to the Partition Act, supra, if and when consent for the desired petition is obtained through the mandated administrative law procedures.

[24] What follows are more expansive reasons explaining, in certain respects, why I have reached the above conclusions.

ENTITLEMENTS VIS-À-VIS RANDAL

[25] In my view, even though Jane’s oral agreement with Randal concerning the homestead was never reduced to writing, her uncontradicted evidence about the existence and nature of that oral agreement, and the undisputed actions she subsequently undertook relying on that oral agreement, (all of which I find to be proven on the balance of probabilities), clearly gave rise to rights and entitlements, enforceable vis-à-vis Randal, exceeding the rights and entitlements now flowing from her registered life interest in the property.

[26] Normally, the holder of life estate in a property is entitled to occupation of the premises and associated income from the property during his or her life tenancy. However, he or she also normally has offsetting obligations. In particular, a “tenant for life” or “life tenant” normally is bound to pay the taxes, interest on any mortgage debt, and any other annual outgoings for the preservation of the property, although expense for certain repairs to preserve the property may have to be borne by both the life tenant and those entitled to the remainder interest in the property. See, for example: Re McDonald (1919), 1919 CanLII 491 (ON CA), 46 O.L.R. 358 (C.A.); and Re Jackson (1977), 1977 CanLII 1115 (ON SC), 17 O.R. (2d) 318 (H.C.J.).

[27] However, a life tenant normally is not entitled to be reimbursed for more substantial capital repairs and improvements he or she voluntarily may have undertaken during the life tenancy, or for other costs associated his or her administration of the property.

[28] That long-standing principle of English law was recognized and accepted by the courts of Ontario as settled law more than 130 years ago, and has been recognized and applied by Ontario courts into more modern times.

[29] For example, in Re J.T. Smith’s Trusts, [1883] O.J. No. 375 (H.C.J.), the court was faced with a claim by a life tenant for reimbursement of expenditures she had made on buildings which required much needed repairs. The life tenant sought to charge the property, and the interest of the remaindermen, in order to obtain such reimbursement. However, the court held that it was “against all the authorities to burden the estate with such charges”. In particular, Chancellor Boyd also said this, at paragraph 9 of the decision:

If even the mansion house gets out of repairs, the tenant for life will not be allowed to renovate it and charge the land, but will be expected to do this in return for the enjoyment of the house; a fortiori no expenditure for repairs to other buildings will be made a charge upon the real estate: Hibbert v. Cooke, 1 Sim. & Stu. 552; Gilliland v. Crawford, In R. 4 Eq. pp. 39-41; Floyer v. Bankes, L.R. 8 Eq. 115 (a very strong case). The law is thus summarized in Lewin on Trusts, (7^th ed. p.503): “The repairs by a tenant for life, however substantial and lasting, are his own voluntary act, and do not arise from any obligation, and he cannot claim any charge for them upon the inheritance.”

[30] The same principles were expressed and affirmed in Wilson v. Graham, [1887] O.J. No. 269 (C.A.), at paragraph 8:

The law, I apprehend, is quite clear that repairs and improvements, however substantial and lasting made upon the land by the tenant for life are his own voluntary act and do not arise from any obligation, and he cannot claim any charge for them upon the inheritance. The cases on this are numerous and many of them well known. A considerable number of these were referred to by Mr. Fitzgerald and these I have examined. The law is summarized as said by the Chancellor in the case of Smith’s Trusts, 4 O.R. at 522, and in Lewin on Trusts, 7^th ed. p.508. See also the 8^th ed. p.574.

[31] That approach to life tenant improvements was still regarded as settled law more than 90 years later, in Re Jackson (1977), 1977 CanLII 1115 (ON SC), 17 O.R (2d) 318 (H.C.J.), where the court said this at p. 321:

The second question was whether the applicant [life tenant widow] has a charge against the estate for capital improvements made by her and for her administration of the estate property. The applicant has not detailed the capital improvements made by her. In Re J.T. Smith’s Trusts (1884), 4 O.R. 518 at p.522, Boyd, C., said: “The law is thus summarized in Lewin on Trusts, (7^th ed. p.503), ‘The repairs by a tenant for life, however substantial and lasting, are his own voluntary act, and do not arise from any obligation, and he cannot claim any charge for them upon the inheritance.” Where the applicant has, at her request, assumed the management of the property and has made the improvements or expenditures without prior consultation with the remaindermen or the executors, she is not entitled to repayment.

[32] The interest now being claimed by Jane in the homestead, insofar as it is said to include an entitlement to reimbursement for the substantial renovations and improvements she has made to the property, (and a proprietary constructive trust and/or equitable charge to secure and ensure that reimbursement), accordingly exceeds the interest which she normally could assert and enforce through a life estate in the homestead.

[33] However, in my view, leaving aside concerns about the possible application of a limitation period and/or the equitable doctrines of laches, acquiescence and estoppel, Jane clearly could have claimed and enforced such an interest in the homestead vis-à-vis Randal.

[34] For example, even though the oral agreement between Randal and Jane concerning the homestead was never reduced to writing, I think equity could and would have held Randal to his promises in that regard through “the doctrine of part performance”. That equitable doctrine was developed to avoid the unjust consequences which otherwise might flow from rigid application of legislation such as the Statute of Frauds, R.S.O. 1990, c.S.19, which imposed written requirements on the creation of interests and rights relating to land. In that regard:

• The genesis and nature of the doctrine of part performance were explained by the House of Lords in the following terms, in Steadman v. Steadman, [1976] A.C. 536 (H.L.), at p.558, quoted with approval by the Supreme Court of Canada in Hill v. Nova Scotia (Attorney General), 1997 CanLII 401 (SCC), [1997] 1 S.C.R. 69, at paragraph 10:

  [The doctrine] was evoked when, almost from the moment of passing of the Statute of Frauds, it was appreciated that it was being used for a variant of unconscionable dealing, which the statute itself was designed to remedy. A party to an oral contract for the disposition of an interest in land could, despite performance of the reciprocal terms by the other party, by virtue of the statute disclaim liability for his own performance on the ground that the contract had not been in writing. Common Law was helpless. But Equity, with its purpose of vindicating good faith, and with its remedies of injunction and specific performance, could deal with the situation. The Statute of Frauds did not make such contracts void but merely unenforceable; and if the statute was to be relied upon as a defence, it had to be specifically pleaded. Where, therefore, a party to a contract unenforceable under the Statute of Frauds stood by while the other party acted to his detriment in performance of his own contractual obligations, the first party would be precluded by the Court of Chancery from claiming exoneration, on the ground that the contract was unenforceable, from performance of his reciprocal obligations; and the court would, if required, decree specific performance of the contract. Equity would not, as it was put, allow the Statute of Frauds “to be used as an engine of fraud”. This became known as the doctrine of part performance – the “part” performance being that of the party who had, to the knowledge of the other party, acted to his detriment in carrying out irremediably his own obligations (or some significant part of them) under the otherwise unenforceable contract.

• In Canada, the view which has won the repeated support of the Supreme Court of Canada is that such unwritten agreements relating to land will be enforced if a claimant can demonstrate acts of part performance “unequivocally, and in their own nature, referable to some such agreement as that alleged”. See, for example: McNeil v. Corbett (1907), 1907 CanLII 45 (SCC), 39 S.C.R. 608; Deglman v. Guaranty Trust Co., 1954 CanLII 2 (SCC), [1954] S.C.R. 725; Brownscombe v. Public Trustee (Administrator of Vercamert Estate), 1969 CanLII 86 (SCC), [1969] S.C.R. 658; and Thompson v. Guaranty Trust Co., 1973 CanLII 161 (SCC), [1974] S.C.R. 1023.
• In my opinion, as between Jane and Randal, the circumstances are similar to those in Thompson v. Guaranty Trust Co., supra, which involved an oral contract whereby the deceased promised to give the claimant an estate if the claimant would remain on the property and work with the deceased until his death. The farmhouse on the property was described as “a wreck”. Relying on the parties’ oral contract, the claimant renovated the residence, rebuilding and making it more comfortable. However, the deceased then failed to convey the promised estate to the claimant. The Supreme Court of Canada found that the claimant’s efforts, in carrying out the renovations and improving the value of the property, were acts of part performance satisfying the requirements of the doctrine of part performance, and granted the claimant equitable relief.
• In this case, Randal made an oral contract with Jane whereby, if she moved to the property and carried out substantial renovations to the farmhouse, (thereby inherently increasing its attractiveness and value), she would receive an interest in the homestead that would include a right to reimbursement for her renovation expenditures if and when she left the property. To Randal’s knowledge, Jane then proceeded to perform her obligations under the agreement, expending significant sums on renovating and improving the very property that was the subject of the agreement. In my view, those constituted acts of part performance on Jane’s part, unequivocally and by their own nature referable to the oral agreement between the siblings. That in turn made the oral agreement enforceable by Jane vis-à-vis Randal, if and as necessary, even though it was never reduced to writing.

[35] Similarly, as between Jane and Randal, it seems to me that the circumstances would have given Jane enforceable rights against her brother through the concept or doctrine of “proprietary estoppel”, so as to prevent and redress any unconscionable conduct on the part of Randal. In that regard:

• While proprietary estoppel is a form of promissory estoppel, and it commonly is supposed that estoppel cannot give rise to a cause of action, proprietary estoppel is an exception to that rule.
• The exception was articulated by Lord Denning in Crabb v. Arun District Council (1975), 1 Ch. 179 (Eng.C.A.), and accepted by our Court of Appeal in authorities such as Eberts v. Carleton Condominium No. 396, 2000 CanLII 16889 (ON CA), [2000] O.J. No. 3773 (C.A.), and Schwark v. Cutting, 2010 ONCA 61.
• Pursuant to the doctrine of proprietary estoppel, an equity arises in circumstances where three essential elements are established:
  • an owner of land induces, encourages or allows a claimant to believe that he or she has or will enjoy some right or benefit over the owner’s property;
  • relying upon that belief, the claimant acts to his or her detriment, to the knowledge of the owner; and
  • the owner then seeks to take unconscionable advantage of the claimant by denying him or her the right or benefit which he or she expected to receive.
• In the circumstances of this case, Randal encouraged Jane, by his oral promise, to believe that she would enjoy rights in relation to the homestead that included a right to be reimbursed for her renovations expenditures. Relying on that belief, Jane acted to her detriment, to Randal’s knowledge; e.g., by selling her Kitchener home and devoting its net sale proceeds and more to renovation of the homestead farmhouse owned by Randal. Randal effectively then took unconscionable advantage of Jane by failing to grant her, during his life or through his estate arrangements, a legal interest in the homestead that included such a right to reimbursement.

[36] However, in my view, the doctrines of part performance and proprietary estoppel are but two manifestations of the court’s wider equitable jurisdiction, (repeatedly confirmed and refined by the Supreme Court of Canada), to grant relief pursuant to the modern principle of “unjust enrichment”; i.e., in circumstances where a claimant is able to prove enrichment of another party, and a corresponding deprivation of the claimant, with no juristic reason for the enrichment. In such circumstances, a successful claimant may be entitled to a monetary remedy or a proprietary remedy, including imposition of a constructive trust. See, for example: Pettkus v. Becker, [1980] 2 S.C.R. 269; Sorochan v. Sorochan, 1986 CanLII 23 (SCC), [1986] 2 S.C.R. 38; Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574; Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980; and Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269.

[37] Although this jurisprudence emphasizes that courts seeking to remedy such unjust enrichment should first consider whether a monetary award is sufficient, it also makes clear that the remedy of a proprietary constructive trust may be necessary and appropriate in certain circumstances. For example, in Kerr v. Baranow, supra, at paragraph 50, Justice Cromwell said this:

The Court has recognized that, in some cases, when a monetary award is inappropriate or insufficient, a proprietary remedy may be required. Pettkus is responsible for an important remedial feature of the Canadian law of unjust enrichment: the development of the remedial constructive trust. Imposed without reference to intention to create a trust, the constructive trust is a broad and flexible equitable tool used to determine beneficial entitlement to property. … Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour. … The equitable principle on which the remedy of constructive trusts rests is broad and general; its purpose is to prevent unjust enrichment in whatever circumstances it occurs. [Emphasis added.]

[38] In my view, the more general principle of unjust enrichment also would be engaged in the circumstances as they existed between Jane and Randal, insofar as:

• the homestead property owned by Randal was renovated and improved, which inherently increased its attractiveness and value, and thereby resulted in an enrichment enjoyed by Randal;
• Jane sustained a corresponding deprivation, insofar as she funded the renovations without Randal making adequate arrangements to ensure that Jane was or would be provided, (through his estate arrangements), with agreed compensatory rights, including a right to reimbursement for those expenses[^15]; and
• in my opinion, there is no juristic reason for the enrichment.

[39] Moreover, in my view the circumstances demonstrate an obvious and significant link between Jane’s contributions and the property that she seeks to have impressed with a constructive trust. Her efforts and expense clearly were directed to the homestead farmhouse, which was the subject of the siblings’ oral agreement. It was a property that had special meaning to her, which she was fashioning, in a very personal way, into her intended final residence. While a monetary remedy arguably may have provided a sufficient remedy, (insofar as the underlying oral agreement itself contemplated monetary “reimbursement”), imposition of a proprietary constructive trust to secure Jane’s rights was also a definite possibility.

[40] In any event, the fundamental point is that, for the reasons I have described, Jane had enforceable rights in equity vis-à-vis Randal, in relation to the homestead, notwithstanding that the relevant agreement with her brother was never reduced to writing.

[41] Before moving on, I note that the claims Jane was capable of enforcing vis-à-vis Randal inherently were personal in nature, insofar as they were based in equity. In particular, as noted in Oosterhoff & Gillese, in Text, Commentary and Cases on Trusts (4^th ed.), at p.5:

It should be noted that there is an important distinction between legal and equitable procedures. In the common law courts the judgment obtained by the plaintiff gives him or her the right to do certain things. The judgment declares those rights. But a decree in equity imposes obligations on the defendant. Equity does not declare rights. It acts in personam. That is, it demands that a person refrain from exercising certain rights for reasons personal to himself or herself which makes it inequitable to enforce those rights.

[42] For the reasons noted below, such distinctions may have importance when it comes to the application of limitation periods, and the extent to which such equitable claims in relation to certain property may be enforced vis-à-vis parties other than the person whose inequitable conduct gave rise to the equitable claims.

LIMITATION PERIOD CONCERNS

[43] In time, there was uncertainty about the limitation period that would apply, in Ontario, to actions for unjust enrichment seeking a remedial constructive trust and alternative monetary relief in relation to land.

[44] One possibility was application of section 4 of the Real Property Limitations Act, supra, which reads as follows:

No person shall make an entry in distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

[45] Another possibility was application of the provisions of the Limitations Act, supra, which includes provisions in sections 4 and 5, (which I will not replicate here), generally implementing a basic two year limitation period subject to discoverability, (a concept which in turn is addressed by deeming provisions and presumptions).

[46] In McConnell v. Huxtable (2014), 2014 ONCA 86, 118 O.R. (3d) 561 (C.A.), our Court of Appeal was called upon to decide which, if either, of those two competing limitation periods applied in Ontario to claims for unjust enrichment and an associated remedy of constructive trust, or alternative remedies, in relation to land. Following a detailed analysis, (which I will not attempt to summarize here), our Court of Appeal held that such claims were governed by the ten year limitation period set forth in section 4 of the Real Property Limitations Act, supra.

[47] In my view, that limitation period accordingly would have applied, without doubt, to any claim brought by Jane against Randal for unjust enrichment and associated relief, in relation to the homestead, while both siblings were still alive.[^16]

[48] During argument of the motion before me, considerable time and attention were devoted to the questions of whether that limitation period had run its course in relation to Jane’s possible claim against Randal, and what impact Randal’s death had on Jane’s possible claim against Randal’s estate, (including the more particular question of whether a different limitation period would have applied to such a claim by Jane against Randal’s estate).

[49] Defence counsel suggested that the limitation period applicable to Jane’s possible claims against Randal began to run many years before Randal’s death. In that regard, emphasis was placed on such matters as Jane’s obvious knowledge of her agreement and understanding with Randal concerning the homestead, the timing of her renovation expenditures, her steadfast belief from the outset that fairness required the promise of eventual reimbursement of renovation expenses to be honoured, her persistent belief that a written agreement was advisable, and her ongoing but unsuccessful efforts to have her agreement with Randal reduced to writing.

[50] In my view, however, none of these considerations, separately or collectively, sufficed to activate the limitation period applicable to Jane’s possible claim or claims against Randal before he died. In particular:

• It must be remembered that Jane’s claims are based on an oral agreement with Randal that she would fund and proceed with renovations to the homestead farmhouse on the understanding that she then could live in the house and recover maintenance and renovation costs from Randal when she no longer wished to live there.
• The wrongful, unconscionable or inequitable conduct of Randal that might give rise to a claim by Jane was not a failure to document that agreement in writing. For the reasons outlined above, the agreement between the siblings would have been enforceable regardless of whether or not it was ever reduced to writing.
• Rather, the wrongful, conscionable or inequitable conduct of Randal that might have justified a claim against him by Jane would have been Randal’s failure to abide by the agreement, honour the promises made to his sister, and ensure that his obligations pursuant to the oral agreement were fulfilled or would be fulfilled through his estate arrangements. Such failures would have given Jane grounds for a legitimate complaint, warranting equitable intervention by the court to address a situation of unjust enrichment; e.g., through application of the doctrine of part performance, the doctrine of proprietary estoppel, and/or the court’s more general jurisdiction to address unjust enrichment.
• However, I do not think any such situation of unjust enrichment, or associated cause for complaint and/or cause of action, became manifest or discoverable prior to Randal’s death.
• Up until the time of Randal’s death in 2007, the simple reality is that there had been no breach of Randal’s oral agreement and understanding with Jane. She had incurred renovation expenditures, but she also was being permitted to live in the homestead farmhouse, and the agreed time for reimbursement of her renovation expenditures simply had not yet arrived. In other words, up until the time of Randal’s death, the oral agreement between the siblings effectively was being honoured.
• Moreover, there is no evidence before me to suggest that Randal ever indicated to Jane, directly or indirectly, before his death, any intention on his part not to be bound by the oral agreement and understanding with his sister.[^17] As emphasized by authorities such as Ali v. O-Two Medical Technologies Inc., 2013 ONCA 733, [2013] O.J. No. 5547 (C.A.), at paragraph 24, once a counterparty shows his or her intention not to be bound by an agreement, the innocent party then has a choice. In particular, the innocent party may accept the anticipated breach and elect to sue immediately, (in which case the innocent party must “clearly and unequivocally” accept the repudiation and terminate the contract), or the innocent party may choose to treat the contract as subsisting, continue to press for performance, and bring his or her action only when the promised performance fails to materialize. However, there is nothing in the evidence before me to indicate that Randal ever indicated such an intention to Jane, that Jane was capable of discovering such an intention prior to Randal’s death, or that Jane was ever presented before Randal’s death with the choice arising from application of the “anticipatory breach” principle. Furthermore, even if Randal had indicated an intention to breach the agreement before his death, or such an intention on his part had been discoverable by Jane before Randal’s death, there is no evidence whatsoever to suggest that Jane “clearly and unequivocally” accepted the repudiation and terminated the contract. To the contrary, the evidence shows that Jane felt (and still feels) that her agreement with Randal remained binding and had to be honoured before and after his death, and that she has continued to reside in the farmhouse and make further improvements to it based on that belief.
• In my view, the situation changed somewhat after Randal’s death, at least in terms of whether Jane knew or ought to have known of Randal’s effective intention to breach his agreement. In particular, as Randal’s esate trustee, Jane certainly was made aware of Randal’s estate arrangements, including his failure to address or ensure the promised eventual reimbursement of Jane’s renovation expenditures.
• However, I see nothing in the circumstances to suggest that the limitation period applicable to Jane’s possible equitable claims against Randal, in relation to the homestead, had even commenced, let alone run its course, before Randal’s death. Without limiting the generality of that conclusion, it seems to me that, before Randal’s death, there was simply no discoverable need or basis for Jane to invoke equity’s assistance to address any circumstances of unjust enrichment, (including its manifestation by circumstances triggering application of the equitable doctrines of part performance and/or proprietary estoppel), by way of a claim for proprietary constructive trust or alternative remedies.

[51] Counsel for the defendants argued that, after Randal’s death, Jane’s possible claims relating to the oral agreement became subject to the limitation period set forth in subsections 38(2) and 38(3) of the Trustee Act, R.S.O. 1990, c.T.23, the operation of which generally was preserved by s.19(1) of the Limitations Act, 2002, supra, and the specific reference to s.38(3) of the Trustee Act, supra, in the in the Schedule attached to the Limitations Act, 2002, supra.

[52] With their legislated headings, subsections 38(2) and 38(3) of the Trustee Act read in their entirety as follows:

Actions against executors and administrators for torts

[38.] (2) Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.

Limitation of actions

(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.

[53] As noted by the Supreme Court of Canada in Public Trustee v. Guaranty Trust, 1980 CanLII 52 (SCC), [1980] 2 S.C.R. 931, at p.949, these provisions were enacted “in order to avoid the harshness of the common law rule enshrined in the maxim actio personalis moritur cum persona (a personal action dies with the person)”.

[54] In particular, as explained at more length by our Court of Appeal in Waschowski v. Hopkinson Estate (2000), 2000 CanLII 5646 (ON CA), 47 O.R. (3d) 370 (C.A.), at paragraphs 8-9 and 16, the provisions were passed to balance competing underlying policy considerations; i.e., the need to alleviate the “draconian legal impact of the common law” whereby death terminated any possible redress for the tortious conduct of a deceased person, and recognition that there is “a benefit to disposing of estate matters with finality”. In the result, the “legislative compromise in s.38 of the Trustee Act was to open a two-year window, making access to a remedy available for a limited time without creating indefinite fiscal vulnerability for an estate”. The Court of Appeal held that limited window of time was not capable of extension through the doctrine of discoverability.

[55] In the motion before me, counsel for the defendants argued that the Jane’s claims against the defendants were barred by the limitation period in s.38(3) of the Trustee Act, supra, insofar as they inherently are “in personam” or “personal” claims, and the action herein was commenced long after the second anniversary of Randal’s death, (i.e., long after April 28, 2009).

[56] In my view, however, such arguments do not advance the position of the defendants in the particular circumstances of this case.

[57] In that regard, I accept that unjust enrichment claims may be characterized as in personam or “personal” claims, for the reasons I have outlined above.

[58] I also accept that section 38 of the Trustee Act was intended to apply not only to tort actions, but to other “personal” actions as well. See, for example: Smallman v. Moore, 1948 CanLII 4 (SCC), [1948] S.C.R. 295; and English Estate v. Tregal Holdings Ltd., [2004] O.J. No. 2853 (S.C.J.).

[59] However, I also note:

• that continued application of section 38 of the Trustee Act is now entirely dependent on provisions of Limitations Act, 2002, supra;[^18]
• that the same legislation confirms that it does not apply to “claims pursued in … proceedings to which the Real Property Limitations Act applies”; and
• that, as outlined above, our Court of Appeal now has held, in McConnell v. Huxtable, supra, that claims for unjust enrichment and associated remedies of constructive trust or alternate relief generally are governed by section 4 of the Real Property Limitations Act, supra.

[60] Whether or not our Court of Appeal intended its ruling in McConnell v. Huxtable to apply in the context of claims against an estate or estate trustee for unjust enrichment, constructive trust and alternative remedies is an interesting question, particularly when such an outcome might significantly prolong the “fiscal vulnerability of an estate” which the shorter two year limitation period in s.38(3) of the Trustee Act was designed to limit.

[61] In my view, however, it is unnecessary for me to address and decide such issues, as section 38 of the Trustee Act has no application to the action before me in any event.

[62] In particular, as noted above, the simple reality of the matter is that the action before me, which is the subject of the defendants’ motion, has not been advanced as a claim by Jane against Randal’s estate or estate trustees. To use the words of s.38(2), this action is not an action against the executor or administrator of a deceased person who committed or is by law liable for a wrong.[^19]

[63] It is instead an entirely inter vivos action, wherein Jane is advancing land-related claims for unjust enrichment, a proprietary constructive trust and alternative remedies directly against living defendants who currently have interests in land that formerly belonged to Randal and his estate trustees.

[64] In the circumstances before me, I see no reason why the limitation period applicable to those claims, against those defendants, should not be that set forth in section 4 of the Real Property Limitations Act, supra, for the reasons articulated by the Court of Appeal in McConnell v. Huxtable, supra.

[65] However, I also think it self-evident that the relevant ten year limitation period cannot possibly have run against the defendants to this action. In particular:

• In my view there is nothing whatsoever in the evidence before me to suggest that Jane had any possible cause of action or complaint against any of the defendants until they received their interests in the homestead after Randal’s death in 2007.
• Certainly, before Randal’s death in 2007, the defendants had no relevant involvement in the events giving rise to Jane’s claims for unjust enrichment[^20], no authority over Randal or his actions, no authority or ability to deal with the homestead in any way, and no interest in the homestead.
• If the ten year limitation period applicable to Jane’s claims had not started to run in relation to Randal by the time of his death, (for the reasons outlined above), I fail to see any basis on which it would have started to run in relation to the defendants to this action.
• Moreover, even if the relevant limitation period began to run against any or all of those defendants upon Randal’s death, or when the defendants formally acquired their respective interests in the homestead, Jane started her action against the defendants to this action well within ten years of either point in time. Jane’s claims against the defendants to this action accordingly cannot possibly be barred by the applicable limitation period.[^21]

MERITS OF CONSTRUCTIVE TRUST AND ALTERNATIVE REMEDY CLAIMS

[66] While Jane’s ability to advance such claims against the defendants may not be barred by the applicable limitation period, that does not end the summary judgment inquiry as to whether those claims raise genuine issues requiring a trial.

[67] In my view, based on the evidence before me, a number of the claims advanced by Jane against the defendants to this action fail on their merits, and present no genuine issues for trial.

[68] In that regard, I begin by noting my inability to discern any inequitable or unconscionable conduct on the part of Jeffrey or Joanne personally, vis-à-vis Jane, that independently would give rise to claims against either of them; i.e., claims not dependent on suggestions that Jeffrey and/or Joanne somehow are bound by the equities that may have been created as between Jane and Randal, by reason of Randal’s inequitable or unconscionable conduct.

[69] For example, there is no evidence whatsoever of either Jeffrey or Joanne making any promises whatsoever to Jane that she would be reimbursed for her renovation expenditures, whether incurred before or after Randal’s death.

[70] Similarly, there is no evidence whatsoever of either Jeffrey or Joanne encouraging Jane to make such expenditures, knowing that she was expecting any corresponding reimbursement. To the contrary, the evidence indicates that Jane took no steps whatsoever to inform Jeffrey and Joanne of the promises made to her in that regard by Randal, or Jane’s expectations in that regard, before the advancement of this action. Moreover, Jeffrey was emphasizing to Jane that she should seek his express consent before embarking on any further renovations in respect of which he and Joanne might be asked to make a financial contribution.

[71] Nor do I think there is any evidence to support suggestions that this a case where the property transferred to Jeffrey and Joanne was impressed with any form of express trust or resulting trust, by virtue of the parties’ intentions or circumstances. To the contrary, and as noted above, the contemporaneous documentation, prepared in relation to the transfer of title from Randal’s estate to Jane, Jeffrey and Joanne expressly indicated and confirmed that all of Randal’s debts had been satisfied in full, that the title being transferred to Jeffrey and Joanne was subject only a life estate in favour of Jane, and that Jane, Jeffrey and Joanne all were receiving their transferred interests in the homestead as transferees rather than as trustees or beneficiaries.

[72] Repeated emphasis is made in Jane’s correspondence, evidence and submissions to the fact that Jeffrey and Joanne repeatedly refused to negotiate a written agreement in relation to the homestead. More generally, Jane now relies on the refusal of Jeffrey and Joanne to acknowledge that they are bound by Randal’s oral promises to Jane, and the couple’s ongoing failure to confirm any intention to honour Randal’s promises.

[73] However, in my view, mere refusal to negotiate and agree to suggested obligations, (which Jane declined to particularize), and mere denial of an alleged obligation, do not suffice to create an obligation where it does not otherwise exist.

[74] More generally, I think Jane is unable to identify any meaningful or relevant personal conduct or misconduct by Jeffrey and/or Joanne that would suffice to justify the imposition of liability for unjust enrichment, and a proprietary constructive trust or alternative remedies. Jane’s claim is not “personal” against Jeffrey or Joanne, in that sense.

[75] Rather, in my view, Jane essentially is suggesting that Jeffrey and Joanne should be liable to such a claim, and the imposition of such remedies, because the equities created as between her and Randal in relation to the homestead, owing to his personal conduct or misconduct, (in failing to put arrangements in place to ensure the promised reimbursement of Jane’s renovation expenditures), also should bind those who subsequently have acquired interests in the property.

[76] In other words, Jane argues that her in personam rights vis-à-vis Randal give rise to certain rights of an in rem nature capable of being asserted against others; i.e., that her equitable rights vis-à-vis Randal, in relation to the homestead, should notionally travel along with title to that property.

[77] Such claims are possible in law, but not without inherent limits and restrictions.

[78] For example, the origin of such rights, and their qualification, is outlined by Oosterhoff & Gillese, supra, at pp.5-6:

The common law recognized ownership of property, that is, legal ownership. Situations arose, however, in which a person held the legal title to property - - a title recognized by law – but which the title holder had agreed to hold for the benefit of some other person - - an obligation not recognized by the law. Chancery could compel the title holder to exercise his or her legal rights for the benefit of the other person in accordance with the dictates of conscience. More important, in due course, the Chancellor not only would compel the legal owner to act in accordance with the dictates of conscience, but would also come to recognize and enforce those rights against purchasers who took with notice of the equitable interest and against gratuitous purchasers. [Emphasis added.]

[79] To the extent Jane acquired rights to an enforceable equitable interest in the property vis-à-vis Randal and/or his estate, for the reasons outlined above, she accordingly acquired rights that were not strictly in personam, but which also carried a degree of equitable ownership in the homestead enforceable in relation to certain other individuals who might subsequently acquire an interest in the property.

[80] However, as noted in the above passage, Jane’s rights of equitable ownership in the homestead, in the event of a transfer of the property from Randal or his estate to a third party, were not unlimited. In that regard, the various possibilities are set forth by Oosterhoff & Gillese, supra, at pp.741-743, which read in part as follows:

TRANSFER TO A THIRD PARTY

(i) Generally

If a trustee transfers trust property to a third party in breach of trust, the trustee will be personally liable to the trust… As far as the transferee is concerned, there are three possibilities: (1) the transferee is not liable to the trust if he or she is a bona fide purchaser of the legal estate for value without notice; (2) the transferee is liable to the trust as a constructive trustee if he or she takes with notice or fraudulently, whether or not value is given, and the trust can trace the property; or (3) the transferee is liable to the trust, although not as a constructive trustee, if he or she is an innocent volunteer and the trust can trace the property, subject to certain limitations that will be explored later. …

(ii) The Bona Fide Purchaser for Value

The legal interest of a bona fide purchaser for value without notice automatically takes priority over the equitable interest of the beneficiary. The only question that may arise is whether the purchaser truly took without notice. … If the third party, being a bona fide purchaser, transfers the property to a volunteer, or to one who knew of the breach of trust, the beneficiaries cannot reach the property, because of the intermediate transfer to the bona fide purchaser. …

(iii) The Transferee with Notice

There is a substantial number of cases in which the transferee was either a volunteer with notice, or paid full consideration but took with notice of the trust. …

(iv) The Innocent Volunteer

When a trustee transfers property to a volunteer who takes without notice of the trust, the volunteer is personally liable in equity to restore the value of the property and he or she is also subject to the proprietary tracing action. However, the volunteer does not hold the property as a constructive trustee.

[Foot notes omitted. Original italics, but emphasis in bold print added.]

[81] In my view, Jeffrey and Joanne acquired their respective interests in the property as bona fide purchasers for value, without notice of Jane’s assertion of equitable interests in the homestead exceeding her registered life interest.

[82] In that regard, I think it clear that Jeffrey and Joanne did not receive their respective interests in the homestead as gratuitous transferees or “volunteers”. To the contrary, they jointly assumed a debt of $100,000.00 and payment obligations, in order to satisfy the conditions and demands of the estate, as transferor. In my view, the fact that the estate required the benefit of that debt and payment acquisition obligation to be directed to other particular estate beneficiaries Randal wished to benefit, (Daniel and Kelly), is of no legal significance. The reality is that the estate extracted real consideration from Jeffrey and Joanne as a condition of the estate’s transfer of title, and the couple effectively purchased their title in the homestead for “value” that was neither nominal nor meaningless.

[83] Moreover, there is no evidence whatsoever to suggest that Jeffrey and Joanne ever received, prior to their acquisition of title to the homestead, notice of Randal’s oral promise or Jane’s corresponding expectation that Jane would be reimbursed for her renovation expenditures. To the contrary:

• Jeffrey says that, during Randal’s life, his father only made passing reference to a “life lease”.
• Randal’s will refers only to “rights of occupation”.
• The transfer documents prepared by the solicitor representing the estate trustees, (including Jane), refer only to a life interest in the homestead.[^22]
• A “life lease”, “life tenancy” or “life interest” normally does not carry a right to reimbursement for improvements to property, for the reasons outlined above.
• Jane herself acknowledged during cross-examination that she did not disclose or raise the existence of any such claim or right with the estate solicitor Mr White, (enabling him and/or directing him to raise the matter with Jeffrey and/or Joanne), or with Jeffrey and/or Joanne directly, prior to the transfer of the homestead from Randal’s estate to Jeffrey and Joanne. Furthermore, Jane candidly says that non-disclosure was no accident. She simply believed, at the time, that such matters were “to be discussed later”.
• Jeffrey and Joanne accordingly acquired their title to the homestead without notice of the undisclosed equitable claims and interests now being formally asserted by Jane.

[84] In the result, Jeffrey and Joanne believed that, in exchange for their satisfying the conditions demanded by Randal’s estate, and assuming an obligation to pay $100,000.00, they were acquiring property that included the remainder interest in the homestead, free of any obligations in relation to that property apart from those flowing from Jane’s life interest. Only after the transfer transaction had been completed, and Jeffrey and Joanne had assumed their acquisition obligation, were they advised, for the first time, of Jane’s claim that their interests in the homestead also were subject to a further and previously undisclosed obligation; an obligation which Jane not only currently values at more than $212,000.00, but an obligation which is said to be growing in extent as Jane continues to spend money on the homestead farmhouse.

[85] From Jeffrey and Joanne’s perspective, that situation raises obvious inequities; inequities which the court has to balance in some manner against the inequities which flow, from Jane’s perspective, from her detrimental reliance on oral promises made by Randal which were not addressed by Randal during his life or by his estate arrangements.

[86] In my view, the law requires those competing equities to be addressed and resolved in favour of the bona fide purchasers for value without notice.

[87] In particular, as between the innocent holder of a beneficial interest in a property created by equity vis-à-vis that property’s former owner, (whom equity may have regarded as a trustee), and the innocent holder of title acquired from that owner/trustee (or his or her estate) for value and without notice of the equitable claim, the resulting unfortunate loss falls on the holder of the undisclosed beneficial interest.

[88] Moreover, in the circumstances of this particular case, that conclusion is reinforced by considerations of laches, acquiescence and estoppel.

[89] In that regard, I note that section 2 of the Real Property Limitations Act, supra, reads as follows:

Nothing in this Act interferes with any rule of equity in refusing relief on the ground of acquiescence, or otherwise, to any person whose right to bring an action is not barred by virtue of this Act. [Emphasis added.]

[90] I also am mindful of the following comments from M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, wherein Justice LaForest, speaking for a majority of the Supreme Court of Canada, provided useful guidance concerning the nature and application of equitable concepts such as laches, acquiescence and estoppel, and their connection with each other:

There are two distinct branches to the laches doctrine, and either will suffice as a defence to a claim in equity. What is immediately obvious from all the authorities is that mere delay is insufficient to trigger laches under either of its two branches. Rather, the doctrine considers whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine. …

Acquiescence is a fluid term, susceptible to various meanings depending on the context in which it is used. [Authorities] identify three different senses, the first being a synonym for estoppel, wherein the plaintiff stands by and watches the deprivation of her rights and yet does nothing. This has been referred to as the primary meaning of acquiescence. Its secondary sense is as an element of laches - - after the deprivation of her rights and in the full knowledge of their existence, the plaintiff delays. This leads to an inference that her rights have been waived. … The final usage is a confusing one, as it is sometimes associated with the second branch of the laches rule in the context of an alteration of the defendant’s position in reliance on the plaintiff’s inaction.

[Emphasis added.]

[91] More specific focus on the equitable concept of estoppel can be found in authorities such as Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co. Ltd., 1970 CanLII 3 (SCC), [1970] S.C.R. 932, wherein “the essential factors giving rise to an estoppel” were described at p.939 as follows:

(1) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made.

(2) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made.

(3) Detriment to such person as a consequence of the act or omission.

[92] In my view, having regard to the particular circumstances of this case, the equitable concepts of acquiescence and estoppel apply to Jane’s assertion of claims against Jeffrey and Joanne for a proprietary constructive trust and alternative relief.

[93] In that regard, I have in mind considerations that include the following:

• Jane was keenly aware of Randal’s oral promises to her and the fact that they were undocumented, which was causing her obvious concern about whether those promises eventually would be recognized and honoured. There is no evidence that anyone but she and Randal knew the details of the oral promises that had been made, (including the promise of reimbursement for Jane’s renovation expenditures), or that Jane thought anyone else knew the details of the arrangement and understanding she had with her brother.
• Jane may have had no basis for complaint for breach or anticipated breach of Randal’s oral promises before his death. However, once she learned of Randal’s estate arrangements, (which self-evidently must have been brought to her attention, as one of his appointed executors who then voluntarily assumed that role), Jane herself was concerned that the provisions in the will might not be adequate to protect the entitlements Randal said Jane would receive.
• Throughout the entire estate administration, up to and including formal transfer of the title to the homestead away from the estate, (a transfer in which she participated as one of Randal’s estate trustees), Jane nevertheless failed to speak up and disclose the nature of her anticipated claims and entitlements in relation to promised reimbursement for renovation expenditures. She acknowledges that she had compiled full details of her anticipated claims in that regard, but also that she deliberately chose not to convey that information to the estate lawyer, her fellow estate trustee, the estate beneficiaries, or to Jeffrey and Joanne, based on her view that such things were “to be discussed later”.
• Jane not only failed to raise and disclose her anticipated claim for renovation expenditure reimbursement, (based on the equities that had arisen between her and Randal in relation to the homestead), but through her conduct, and documentation approved in her role as Randal’s estate trustee, implicitly and explicitly represented to her fellow estate trustee, the estate solicitor, the estate beneficiaries, (including Jeffrey), and transferees of title to the homestead, (including Jeffrey and Joanne), that she had no claims against Randal or his estate apart from an entitlement to executor’s compensation. In particular:
  • Jane implicitly made that representation by voluntarily taking on the role of Randal’s estate trustee, thereby suggesting that she personally had no conflicting interest.
  • Jane explicitly made such representations by approving, in her role as estate trustee, documentation which summarized Randal’s debts and obligations but failed to mention the additional entitlements and claims Jane personally had against Randal, as well as land transfer documentation indicating that all of Randal’s obligations had been satisfied.
• Jane’s deliberate non-disclosure and representations in that regard continued up to and including the point where Randal’s estate parted with title to the homestead, in circumstances where the formal transfer gave Jane a life interest that did not include, and therefore did not protect, any entitlement she otherwise may have had to reimbursement for her renovation expenditures. As estate trustee, Jane had a “front row seat” to all of these developments, and the ability to speak up, while she effectively was being deprived of her right to such reimbursement. Yet she said and did nothing, at the time, to stop that from happening.
• Relying on Jane’s explicit and implicit representations, Jeffrey and Joanne then decided to assume their $100,000.00 debt and payment obligations as a condition of taking only a remainder interest in the homestead, (to follow after Jane’s life interest in the property), completely unaware of any suggestion that they also thereby were assuming a further obligation to reimburse Jane for her renovation expenditures, (currently valued by Jane at more than $212,000.00, but which continue to mount).

[94] In my view, such circumstances fall squarely within the equitable concept of acquiescence, as described by the Supreme Court of Canada in M.(K.) v. M.(H.) supra. In particular:

• Jane stood by and watched the deprivation of her rights, (through the granting of a life estate inadequate to ensure her desired reimbursement), and yet did nothing.
• After the deprivation of her rights and in the full knowledge of their existence, Jane then delayed by failing to inform Jeffrey and Joanne, for many years, about her alleged entitlement to reimbursement for her renovation expenditures.
• Jeffrey and Joanne have altered their position relying on Jane’s inaction.

[95] The circumstances similarly give rise to estoppel, as described by the Supreme Court of Canada in Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co. Ltd., supra. In particular:

• Jane was responsible for representations, and conduct amounting to representations, which she knew or ought to have known would induce a course of conduct on the part of those to whom she was making her representations. In particular, she participated in representations to the estate beneficiaries, and those receiving title to the homestead, that Randal had incurred no other obligations apart from those which had been expressly identified and satisfied.
• Jeffrey and Joanne acted on those representations by assuming debt and payment obligations, and title to a remainder interest in the homestead.
• Allowing Jane to pursue her claim for reimbursement of renovation expenditures now would result in detriment to Jeffrey and Joanne by belatedly forcing them to take on a completely unexpected additional financial burden already exceeding $212,000.00, as well as the cost of ongoing renovation expenditures Jane continues to incur.

[96] To paraphrase the wording of section 2 of the Real Property Limitations Act, supra, there accordingly are additional rules of equity which justify refusing relief to Jane “on the ground of acquiescence, or otherwise”.

[97] For all of the reasons set out above, even if Jane’s claims against Jeffrey and Joanne for a proprietary constructive trust and alternative remedies are not barred by the applicable limitation period, in my view the evidence before me makes it clear that her claims in that regard fail on their merits.

[98] In my opinion, there are no genuine issues requiring trial in relation to those particular claims against Jeffrey and Joanne, and those defendants are entitled to partial summary judgment dismissing Jane’s claims in that regard.[^23]

CLAIM FOR ACCOUNTING OF FARM PROFITS

[99] As noted above, the formal claims advanced by Jane against Jeffrey and Joanne also include a claim for “an accounting of farm profits” from the homestead since 2007, as well as “a declaration of entitlement thereto to the present and during the lifetime of the plaintiff”.

[100] In my view, dismissal of Jane’s claims against Jeffrey and Joanne, grounded in various aspects of unjust enrichment, do not undermine her claim for such an accounting and declaration.

[101] To the contrary, Jane’s entitlements in that regard seem obvious and undeniable, based on the evidence before me.

[102] In particular, regardless of her failure to enforce any equitable claims exceeding those normally associated with a life estate, (such as a right to reimbursement for renovation and improvement expenditures), she unquestionably retains a registered life estate in the homestead, (the granting and existence of which has not be questioned or the subject of any formal challenge)[^24], and a life estate normally carries with it the right to rents and profits generated by the property for the duration of that estate. For example, see Anger & Honsberger, Law of Real Property (3d ed.), at paragraph 6:30.10:

It is an inherent right of a life tenant to receive the rents and profits of the land during the life estate. If there is a direct conveyance or devise of land to a person for a life estate so as to give that person the legal estate, it follows that there is entitlement to actual possession and management.

[103] I see nothing in the evidence before me to negate such an entitlement.

[104] In that regard, it is true that a right to farm profits seems to have formed no part of Jane’s express oral agreement with Randal, that Jane sought no share of the farm profits before Randal’s death, and that the suggestion of any business partnership between Randal and Jane would contradict the estate documentation prepared by Mr White, who was formally representing Jane as one of the estate trustees when that documentation was prepared. However, Jane’s entitlement to profits from the homestead since 2007, (the express limitation on her claims in that regard), does not depend for its existence on her interactions with Randal before his death. It flows instead from the unchallenged and unqualified registered life estate formally conveyed to Jane when Randal’s estate was administered.

[105] Similarly, much emphasis was placed on Jane’s acknowledged failure to make any contributions of time, labour, services or finances to the homestead’s cash crop operations since 2007. In my view, such considerations may have relevance to accurate quantification of the “profits” generated by the homestead farming operations; i.e., the net income remaining after taking into account appropriate reimbursement for labour and expenditures required to generate any such income. However, they do not negate Jane’s right to advance her claim for the requested accounting.

[106] Jane’s claim vis-à-vis Jeffrey and Joanne for an accounting of farm profits generated by the homestead “since 2007” accordingly should and will survive the defendants’ motion for summary judgment. In my view, there are genuine issues for trial in that regard.[^25]

CLAIM FOR PARTITION AND SALE

[107] That leaves, for consideration, Jane’s request for relief pursuant to the provisions of the Partition Act, supra.

[108] Given my above rulings, Jane has no equitable claims enforceable against Jeffrey and Joanne giving rise to a proprietary constructive trust or other interest in the homestead, beyond her registered life estate. The claims which I have dismissed by way of partial summary judgment accordingly can form no basis of Jane’s claim for partition and sale of the property, (e.g., in terms of the existence or quantification of an entitlement).

[109] However, Jane still has a registered life estate in the homestead, and in my view, that interest alone is sufficient to bring her formal claim for partition and sale within the provisions of the Partition Act, supra. In particular:

• Subsection 3(1) of the Partition Act, supra, says that “Any person interested in land in Ontario … may bring an action … for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested”.
• Section 1 of the legislation makes it clear that, as used in the Partition Act, supra, the term “land” includes “lands…and all estate and interests therein”.
• Section 2 of the legislation makes it clear that “All … parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only”.
• Subsection 5 of the legislation makes specific reference to the possibility of sales of land which include life estates, and the ordering of a sum being paid from the purchase money to a person entitled to an estate for life.

[110] Jane accordingly has the legislated right to seek partition and sale in relation to her registered life estate, (but not the more extensive interest asserted in her claims for equitable relief).

[111] As confirmed by authorities such as Garfella Apartments Inc. v. Chouduri (2010), 2010 ONSC 3413, 102 O.R. (3d) 624 (Div.Ct.), general principles applicable to such requests under the Partition Act include the following:

• Co-owners are subject to having their property partitioned or sold at the behest of another person with an interest in the land.
• The presumption is in favour of partition, rather than sale. However, a sale will be ordered if the court considers it to be “more advantageous to the parties”. A sale also has been found to be appropriate when the land is not suitable for partition.
• The court retains a discretion to refuse any relief; i.e., granting neither partition nor sale. However, the onus is on the responding party to demonstrate circumstances warranting the refusal of such relief.

[112] In my view, Jane’s request for partition of the homestead should be denied.

[113] In that regard, the evidence before me indicates that Jane desires a partition order involving severance and vesting that would leave her with exclusive title to the farmhouse, as well as an acre of the land which now forms part of the much larger 55 acre homestead. (Whether or not Jane also contemplates relinquishing her current life interest in the remaining acreage of the homestead is not entirely clear from the evidence, but seems implicit in Jane’s proposed partition outcome.)

[114] Such a partition, severance and vesting would permit Jane to realize her desire of remaining in the homestead farmhouse, while effectively securing her entitlement to the full benefit of her renovation expenditures. In particular, Jane then would be permitted to sell or bequeath the farmhouse and the land immediately around it in whatever manner she chooses.

[115] However, the evidence and authority tendered by the defendants indicates that Jane’s desired partition is prohibited by law, insofar as it would run counter to very definite policies and restrictions set forth in the official plan and comprehensive zoning by-law currently applicable to the homestead.

[116] In that regard, among the policies and goals set forth in the Official Plan for the County of Perth (“the Official Plan”) are the following:

• the desire for a common and consistent approach to planning throughout the rural parts of Perth County;
• protection and preservation of the prime agricultural lands in Perth County for the production of food, fibre and fuel;
• providing agriculture with an area free from conflicting and/or incompatible land use activities, particularly non-farm related development;
• preventing the break-up of farms into smaller holdings for non-farm use;
• promoting the “farm unit”, (defined as including the land base and principal farm residence, apart from other structures required for the farm operation), as the principal type of development permitted in land designated as agricultural; and
• discouraging splitting up of original farm units into smaller farm parcels, and the loss of productive farmland.[^26]

[117] Among the measures adopted by the Official Plan to promote and implement these various policies and goals is the following express prohibition, in Article 5.6.3:

Consents for the severance of lots for residential use on lands within the “Agricultural” designation shall be prohibited. This includes the creation of all new non-farm related residential lots, and the severance of existing farm dwellings (principal dwelling, supplementary dwellings, mobile homes, garden suites), and surplus farm dwellings.

[Emphasis added.]

[118] Expressing its desire “to implement the Official Plan for the County of Perth”, the Council of the Corporation of the Township of Perth South also has enacted “By-law No. 4-1999”. That by-law has provisions that include the following:

• a prohibition on reduction in area of lots “by the conveyance, mortgage or other alienation of a part thereof”, if it results in non-conformity with the requirements of the by-law, in terms of lot area “or the applicable site requirements”;
• in the event of such a reduction, a prohibition on the use “by any person” of any such lot “and any building or structure situated thereon” unless and until there has been compliance with the by-law;
• a prohibition on any change in purpose for which any lot or structure thereon is used, or severance of any area from an existing lot, “if the effect of such action is to cause the building, structure or lot, whether original, adjoining, remaining, or new, to be in contravention” of the by-law; and
• in relation to agricultural land, a prohibition on any person using any land or any building or structure thereon for any purpose other than those which are specified, with permitted buildings and structures including dwellings only if they are a “single-detached dwelling associated with an agricultural use” (emphasis added), or a “supplementary farm dwelling unit”, which in turn is permitted “only where the farm contains a principal farm dwelling and only for farm families, farm labour, or farm retirees”, and only after the land owner has first “signed an agreement with the municipality covering such matters as the occupancy and duration of the unit”.[^27]

[119] The partition outcome desired by Jane therefore also would contravene the by-law by impermissibly reducing the size of the lot of agricultural land on which the farmhouse then would be located, while simultaneously leaving it with a structure or dwelling with a changed purpose no longer associated with an agricultural use.

[120] In short, partition of the homestead in the manner suggested is prohibited by law and therefore simply not available.[^28]

[121] Partial summary judgment dismissing Jane’s claim against all the defendants for her desired partition of the homestead therefore also should be granted, albeit without prejudice to Jane’s ability to make a further request for such a court order if and when necessary consent by municipal authorities to the proposed partition is obtained through the mandated administrative law procedures.[^29]

[122] That still leaves, for consideration, Jane’s alternative formal request for a sale of the homestead; a sale which presumably would be followed or accompanied by an appropriate distribution of the net sale proceeds, including a payment to Jane in respect of her life interest pursuant to s.5(3) of the Partition Act, supra.

[123] In that regard, it seems to me that Jane’s request for such a sale of the homestead and division of the sale proceeds was premised, in large measure, on her belief that her entitlements would include a right to reimbursement for her renovation expenditures, and not simply a sum representing the capitalized amount of a life interest not including such an entitlement to reimbursement.

[124] Whether or not Jane would wish to proceed with such a sale of the homestead, thereby bringing an end to her occupation of the farmhouse, and effectively ending her ability to enjoy the benefit of her renovations directly or indirectly, seems questionable.

[125] However, the authorities indicate that a forced sale of the homestead should not be ordered in any event, in circumstances such as those before me.

[126] In that regard, even when provincial legislation allows for a partition and sale of a life interest, courts rarely order it. To the contrary, courts repeatedly have indicated that a sole tenant for life should not be permitted to obtain a court directing the sale of land without the consent of those holding the remainder interest in the land, and against their reasonable opposition. See, for example: Fisken v. Ife (1897), 28 O.R. 595 (Div.Ct.); Morris v. Howe (1983), 1982 CanLII 1811 (ON SC), 38 O.R. (2d) 480 (H.C.J.); and Melynychuk v. Bassingthwaighte, [1990] A.J. No. 852 (Q.B.).

[127] In this case, Jeffrey and Joanne are not consenting to such an order of sale, and I think their opposition to such a sale is reasonable, having regard to all the circumstances. There is no evidence before me to indicate that Jane has been hindered from making use of her life estate, and Jeffrey and Joanne have indicated an understandable desire to preserve the homestead farm property intact, so that it will be available as a residence and farming opportunity for their children if they too wish to take up the tradition of farming that now has extended over the course of many generations.

[128] Like Justice Dupont in Morris v. Howe, supra, if I am wrong that the law of Ontario does not permit a court to order sale of lands at the request of a life tenant, in the face of reasonable opposition by those holding the remainder interest, I would exercise my discretion against the request in any event, having regard to the circumstances.

[129] Partial summary judgment dismissing Jane’s claim against all the defendants for sale of the homestead therefore also should be granted.

CONCLUSION

[130] In the result, having regard to the considerations set forth in Hyrniak v. Mauldin, supra, for the reasons outlined above I find that:

• There is no genuine issue requiring a trial in relation to the plaintiff’s claim for “a proprietary constructive trust” in relation to the homestead, and the defendants are entitled to summary judgment in part, dismissing that claim.
• There similarly is no genuine issue requiring a trial in relation to the plaintiff’s claim for “an equitable mortgage” against the homestead; for example, to secure reimbursement for the sums the plaintiff says she has “expended to remedy dilapidation of the dwelling house” on the homestead. The defendants are entitled to summary judgment in part, dismissing that claim as well.
• The plaintiff is entitled to maintain her claim for “an accounting of farm profits” from the homestead since 2007”, as well as “a declaration of entitlement thereto to the present and during the lifetime of the plaintiff”, based on her registered life interest in the homestead. Insofar as the defendants’ motion for summary judgment relates to that particular claim, the motion is dismissed.
• The defendants nevertheless also are entitled to summary judgment in part, dismissing the plaintiff’s claim for partition and sale of the homestead, albeit without prejudice to Jane’s ability to make a further request for such a partition order if and when necessary consent to such a partition is obtained through the mandated administrative law procedures.

Costs

[131] Because my decision was reserved, the parties were unable to make any submissions regarding costs. If the parties are unable to reach an agreement on costs, (which in my view certainly would be preferable, given the time and expense these relatives already have devoted to this dispute):

a. the defendants may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs, settlement offers, authorities or other necessary attachments), within two weeks of the release of this decision; b. the plaintiff then may serve and file responding written cost submissions, also not to exceed five pages in length, (not including any necessary attachments similar to those described in the previous sub-paragraph), within two weeks of service of the defendants’ written cost submissions; and c. the defendants then may serve and file, within one week of receiving any responding cost submissions from the plaintiff, reply cost submissions not exceeding two pages in length.

If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs awarded in relation to the motion.

Justice I F. Leach

Date: May 16, 2016

[^1]: Jane says that she received approximately $139,000.00 in net sale proceeds from the sale of her Kitchener home. [^2]: During cross-examination on her affidavit, Jane confirmed that conversation between her and Randal about the nature of their understanding took place only once, although she thereafter “kept hounding him” about the need for a written agreement. [^3]: Jane says there was no express “cap” or limit on the cost of renovations that she would be entitled to recover, pursuant to the agreement. She concedes that Randal would have expressed concerns had they become exorbitant, (such as renovation expenditures of $1 million). However, she essentially says that was not a practical concern, given her limited resources and more modest goal of creating “just … a nice country home”. [^4]: In later correspondence sent by Jane to Jeffrey, (e.g., on July 27, 2011, and on December 29, 2011), the literal wording used by Jane emphasized that she “had NO agreement” with her brother Randal, despite what Randal may have said in his will, (discussed in more detail below). In my view, however, the correspondence in its entirety makes it quite clear that Jane was referring to the lack of a written agreement. [^5]: During cross-examination on his affidavit, Jeffrey acknowledged knowing that Jane had carried out those renovations to the homestead farmhouse. He personally worked on some of those renovations in exchange for pay, was therefore generally aware of what Jane was doing in that regard, and did not object to what was happening. However, Jane herself says Jeffrey’s involvement in the renovations took place before November of 1997, and as emphasized by Jeffrey, he was just 18 at the time. He accordingly did not ask his father for “any particulars or anything” about the renovations; for example, as to whether they were being done in accordance with any understanding between Jane and Randal. [^6]: The evidence filed by the defendants, (not contradicted by any evidence tendered by the plaintiff), confirms that the plaintiff made no contribution of time, labour, services or finance to the homestead cash crop operation from 1997 onwards. Moreover, the terminal tax return prepared and filed after Randal’s death in 2007, by his estate trustees, (including Jane), confirmed that, in relation to his farming business, Randal had no partners, owed no salary, wages or benefits to anyone, and was not responsible for expenses to anyone. During cross-examination on her affidavit, Jane herself confirmed that she did not farm the land at any point before Randal’s death in 2007, did not share any of the farm profits, and was not Randal’s business partner. [^7]: During cross-examination on her affidavit, Jane indicated that, through labour, services and materials, she had expended a total of $184,081.68 on renovations to the farmhouse before Randal’s death. She says she knew before Randal’s death that she had incurred that expense. However, she did not advise Randal of that before he died, and he expressed no independent interest in the nature or progress of the renovations. Jane confirmed that Jeffrey similarly was not presented, before Randal’s death, with any details concerning her renovation expenditures. [^8]: Jane says that her statements to Mr White about her intended refusal to sign documents, before she had a satisfactory written agreement relating to the homestead, had been “ongoing from day one” of the proceedings to settle Randal’s estate. However, nothing in Jane’s evidence indicates or suggests that any such statements ever were made by her to Mr White in the presence of Jeffrey or Joanne, or that Jane made any similar statements to the couple before the estate trustees proceeded with formal transfer of the homestead from the estate to Jeffery and Joanne. Moreover, Jeffrey indicated during his cross-examination that he had no memory of any such statements by Jane. [^9]: In the letter sent by Mr White to Jeffrey on November 19, 2007, described above, Mr White refers to payment being made by the estate to Jeffrey in respect of his “trucking corn” for the estate. [^10]: I note that, in his letter, Mr White refers to Jane’s interest in the homestead in a manner that is not entirely consistent. For example, in a manner similar to the indications set forth in the aforesaid “Transfer By Personal Representative”, and in the aforesaid “Land Transfer Tax Statements”, Mr White refers initially to Jane having a life interest “in the land”, (emphasis added), without qualification or limitation. At that point, he does not refer to Jane receiving a life interest only “in the house”. However, later in the letter he suggests discussions with Jane “as life tenant” to clarify rights and obligations “in respect of the house property”. [Emphasis added.] [^11]: The letter from the defendants’ solicitor (Mr Waghorn) to the plaintiff’s lawyers bears a date of April 27, 2012, but this is clearly incorrect. The content of the letter refers to a meeting with all parties that took place on May 28, 2012, and the attached fax transmission receipt indicates the letter in fact was sent on June 21, 2012. [^12]: In her responding affidavit, Jane says she did not previously request a share of the farm profits because she “believed the agreement with [her] late brother would be honoured by Jeffrey and Joanne”. [^13]: I note that, in specified circumstances, where a plaintiff formally has claimed an accounting, (as the plaintiff has done in this case in relation to “farm profits” from the homestead), the court is given authority pursuant to Rule 20.04(5), to grant judgment on the claim with a reference to take the accounts. However, the margin heading indicates that authority was intended to be exercised where the “only claim is for an accounting”, (emphasis added), and the text of the sub-rule expressly states that the authority applies only “where the plaintiff is the moving party”, (emphasis added). In my view, that particular sub-rule accordingly is inapplicable to the circumstances before me. [^14]: I note that, in her amended statement of claim, Jane advanced no claim for a proprietary constructive trust and/or equitable mortgage against Daniel and Kelly. The only claim Jane has advanced against those two defendants is Jane’s alternative claim for partition and sale of the homestead, which Jane has asserted vis-à-vis all four defendants. [^15]: In that regard, I am mindful of the reality that Jane received rights of “rent free” occupation, secured by the life estate received from Randal’s estate. However, the underlying reality is that, through reliance on Randal’s oral promise, Jane’s financial situation has been fundamentally transformed. Previously, she was living “rent-free” and paying expenses in a house she owned entirely; i.e., a property in which she had a significant and realizable financial interest capable of being liquidated and taken with her upon any inter-vivos relocation, or being bequeathed to others upon her death. In contrast, she now is living “rent-free” in a house in respect of which she has been paying expenses, but also has no financial interest capable of being liquidated and taken with her if she departs before death, or any financial interest therein which she can be bequeathed to others when she dies. She sustained a deprivation, corresponding to Randal’s enrichment. [^16]: Such an inter vivos claim for unjust enrichment, (together with an associated remedy of constructive claim, and a claim for alternative monetary relief), formed the underlying context for the Court of Appeal’s decision in McConnell v. Huxtable, supra. [^17]: The will executed by Randal in March of 2004 may have outlined contemplated estate arrangements insufficient to ensure that Jane would receive the promised reimbursement for her renovation and maintenance expenditures, when she no longer wished to live in the homestead farmhouse. However, there is no evidence to suggest that Jane knew anything whatsoever about the will or its contents before Randal’s death. To the contrary, the evidence before me indicates that it was only after Randal’s death that Jane began expressing unhappiness and concern about the provisions of Randal’s will, and her perception that those provisions were insufficient to address what she was supposed to receive in accordance with the siblings’ oral agreement. Given her ongoing efforts throughout the years to have Randal reduce the agreement to writing, I think Jane almost certainly would have voiced additional concerns about the adequacy of Randal’s will with him before he died, had she known of its contents. [^18]: See s.19(1) of the Limitations Act, 2002, and the Schedule to which it refers. [^19]: For similar reasons, although counsel for the defendants also relied upon ss.44, 45(2) and 47 of the Estates Act, R.S.O. 1990, c.E.21, and section 13 of the Evidence Act, R.S.O. 1990, c.E.23, I think they too have no application to the circumstances of the case before me. The cited provisions of the Estates Act, supra, deal with assertion of a claim “against the estate of a deceased person”, and this proceeding does not advance such a claim. As for section 13 of the Evidence Act, supra, it reads as follows: “In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.” [Emphasis added.] In my view, Jane is not claiming against Jeffrey and Joanne in their capacity as Randal’s “heirs” or “next of kin”, but as transferees who effectively acquired title to the homestead from Randal’s estate in exchange for valuable consideration, (as addressed in more detail below). That reality is underscored by the fact Jane is claiming against Jeffrey and Joanne, although it seems to me that there clearly is no basis for characterizing the latter as one of Randal’s “heirs” or “next of kin”. If my views in that regard are mistaken, it seems to me that Randal’s will provided some “corroboration” of his oral agreement with Jane. Furthermore, it seems to me that the doctrines of part performance, proprietary estoppel and unjust enrichment would apply, in a similar manner to that described above, to prevent strict application of section 13 of the Evidence Act, supra. [^20]: I certainly do not see Jeffrey’s limited role in helping with the initial renovations, as a teenager, for remuneration, and with little or no contemporaneous knowledge of the arrangements made between his father and aunt in that regard, as anything that would warrant a claim for unjust enrichment against Jeffrey. [^21]: In saying that, I am mindful of the distinct possibility that the situation might very well have been different had Jane chosen to assert more limited claims, in isolation, against these defendants. For example, Jane might have chosen to forego her claim for a proprietary constructive trust and various specified remedies in the alternative, and instead limited her claim to one for a monetary amount representing the profits generated by farming of the homestead during the course of her life estate, to be quantified by an accounting. Had such a claim been advanced in isolation, that might very well have taken the matter outside the ambit of section 4 of the Real Property Limitations Act, supra. In particular, such a monetary claim, advanced in isolation, and not seeking recovery of the land, (as defined by the Court of Appeal in McConnell v. Huxtable, supra), might have brought the matter within the provisions of the Limitations Act, 2002, supra, and its basic two year limitation period extendable by discoverability, which in turn may have prevented Jane from claiming such profits back to 2007. But Jane did not advance such a claim in isolation. She advanced it as an alternative to her claim for a proprietary trust, and our Court of Appeal made it clear in McConnell v. Huxtable, supra, at paragraph 40, that such alternative claims also “shelter” under section 4 of the Real Property Limitations Act, supra. I think that is true even if the court subsequently finds, (as I do in this case for reasons outlined below), that the specified alternative remedy requested by the plaintiff has a basis warranting such relief that actually does not depend on a finding of unjust enrichment, (which might have given rise to the remedy of a proprietary constructive trust). A claimant cannot be expected to know, in advance, how the court will deal with his or her claim for a constructive trust. [^22]: As noted above, the “Acknowledgment and Undertaking” made reference to a “life interest in the house”. However, the documents formally effecting and documenting the transfer indicate that an unqualified “life interest” in the homestead, (i.e., the entire property described in the transfer), was what actually conveyed to Jane and registered on title. [^23]: Again, as noted above, Jane advanced no claim for a proprietary constructive trust and/or equitable mortgage against Daniel and Kelly. The only claim Jane has advanced against those two defendants is Jane’s alternative claim for partition and sale of the homestead, which Jane has asserted vis-à-vis all four defendants. [^24]: Again, even though the “Acknowledgment and Undertaking” signed by Jeffrey and Joanne before the formal transfer made reference only to a “life interest in the house”, (emphasis added), what actually was conveyed to Jane, in the subsequent formal transfer, was an unqualified “life estate” in the entire described property, without anything in the formal transfer to indicate that the life estate was qualified or limited to the homestead farmhouse. The counterclaim by Jeffrey and Joanne does not mention or include any formal request for rectification or similar relief, in relation to the formal transfer that actually occurred, which might limit or restrict the registered life estate formally conveyed to Jane to rights and entitlements in relation to the farmhouse alone, (as opposed to the homestead in its entirety). In the circumstances, the rights between the parties must be decided, in my view, based on Jane’s unchallenged, unqualified and registered life estate in the entire homestead. [^25]: As noted above, while a more appropriate means of addressing Jane’s claims for an accounting might be the granting of judgment in relation to that claim, with a reference to take the accounts, Rule 24.05 strongly suggests that approach only should be adopted in the summary judgment context only in situations where the plaintiff is the moving party, and the defendant fails to satisfy the court that there is a preliminary issue to be tried. In any event, as the motion before me focused only on the question of Jane’s entitlement to advance her claim for an accounting, I think it appropriate for present purposes to simply dismiss the defendants’ request for summary judgment in that regard. [^26]: See, inter alia, the following provisions of the Official Plan for the County of Perth, consolidated as of April 2015: sections 3; 5.2; 5.5.1; 5.5.2; 5.5.10(a); 5.5.15; 5.5.16; 5.6.1(a); 5.6.2.1; and 5.6.3. [^27]: See, inter alia, the following provisions of The Comprehensive Zoning By-law of the Corporation of the Township of Perth South, By-law No. 4-1999: preamble; s.1.3.3; s.1.3.5; and 6.2(a)(ii) and (iii). [^28]: See, for example, Garfella Apartments Inc. v. Chouduri, supra, at paragraphs 20 and 23; and Cosentino v. Cosentino, [2015] O.J. No. 2776 (S.C.J.), at paragraph 9. [^29]: While such a consent seems extremely unlikely, given the legislated policies, goals and prohibitions to which I have referred, I do not think Jane should be foreclosed by considerations of res judicata from renewing her request for partition of the homestead if and when such a consent is obtained. Although it was suggested by Jane and her counsel that I make the requested partition order, in an effort to facilitate the granting of such consent, I am not inclined to do so. Pursuant to s.50(20) of the Planning Act, R.S.O. 1990, c.P.13, no order made under the Partition Act allowing otherwise impermissible subdivision of property has “any effect in law” unless consent has been obtained from the appropriate municipal authority. In my view, the deliberate making of an order known to have no effect in law should be avoided, if only to prevent unnecessary confusion and complications.