CITATION: Lesenko v. Guerette and MacEachran, 2016 ONSC 6633
COURT FILE NO.: 1739/15 (London)
DATE: 20161027
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Pamela Lesenko
Plaintiff
– and –
Victoria (Vickie) Guerette and Ralph MacEachran
Defendants
Suzy Johal, for the Plaintiff
Kyle A. MacLean, for the Defendants
HEARD: July 29, 2016
RULING ON MOTION
hebner J.:
[1] This motion was brought by the plaintiff, Pamela Lesenko (“Pamela”), for summary judgment. The motion was opposed by the defendants, Victoria Guerette (“Vickie”) and Ralph MacEachran (“Ralph”).
Background facts
[2] Pamela and Vickie are sisters. Ralph is Vickie’s husband and Pamela’s brother-in-law.
[3] In 1998, Pamela’s husband died. Pamela and her husband did not have children. Pamela has not remarried and remains without children of her own. She has, instead, cultivated extremely close relationships with her siblings and nieces and nephews.
[4] Pamela, Vickie and Ralph are all artists. In approximately 2009, Pamela, Vickie and Ralph agreed to sell their existing homes and purchase a residential property together. Pamela’s evidence is that the idea was proposed by Vickie, whereas Vickie and Ralph depose that the idea originated from Pamela. Regardless of who first made the suggestion, the parties moved forward with the plan.
[5] The parties located a suitable property at 7710 Clayton Street in Port Franks, Ontario (approximately 10 minutes from Grand Bend). The evidence of both parties is that the Clayton Street property was in need of some renovations but was large enough to accommodate all three of them with an art studio/shop. The property consisted of a separate bungalow and a two-level apartment that was above a garage and behind the workshop.
[6] Vickie took the lead on handling the purchase. Vickie submitted an offer to purchase to the vendor on July 25, 2009 and eventually, after some negotiation, an agreement of purchase and sale was reached on July 29, 2009 for the price of $189,900. The buyers are identified on the agreement of purchase and sale as Vickie and Ralph. Pamela’s name does not appear on the agreement. The closing date was identified as August 28, 2009.
[7] Pamela sold her existing home located at 8 Nevis Ridge Road, R.R. #2, Hawkestone, Ontario on August 27, 2009. The sale price was $435,000. The solicitor acting on the sale was William Holdsworth of Orillia, Ontario. According to the trust statement, the net proceeds of sale totaling $260,676.66 were paid to Carlo Cimetta. Mr. Cimetta was the solicitor in Sarnia, Ontario acting for Ralph and Vickie on the purchase of the Clayton Street property. There is conflicting evidence as to who provided the instructions to Mr. Holdsworth to transfer the net proceeds of sale to Mr. Cimetta. Pamela’s evidence is that those instructions were provided by Vickie and Ralph. Vickie and Ralph’s evidence is that they did not provide those instructions to Mr. Holdsworth and the instructions were presumably provided by Pamela.
[8] Vickie wrote to Mr. Cimetta sometime after the agreement of purchase and sale was reached in respect of the Clayton Street property and before the closing date. The undated letter reads as follows:
Further to our conversation on the phone I have enclosed the information you require.
A reminder:
My sister Pamela Lesenko is selling her house in Hawkestone, Ontario and it closes on August 27, 2009.
Her lawyer on that end is
William M. Holdsworth
63 Coldwater Road West
P.O. Box 580
Orillia, On L3V 6K5
Phone 705-325-4411
Fax 705-327-3442
The proceeds from that sale are paying for a property we purchased in Port Franks for $189,900 at 7710 Clayton Street N0M 2L0, the purchase agreement is attached. The new property in Port Franks will be registered to Victoria Guerette and Ralph MacEachern. It will not be in Pam Lesenko’s name.
Victoria Guerette DOB May 24, 1955
Ralph MacEachern DOB October 2, 1956
If you have any additional questions please call me anytime at the above numbers.
Thanks for your help
“Vickie Guerette”
[9] Mr. Cimetta closed the purchase of the Clayton Street property on August 28, 2009. The reporting letter of Mr. Cimetta, dated August 28, 2009, is directed to “Mr. Ralph MacEachern and Ms. Victoria Guerette” and indicates that title to the property was taken by Ralph and Vickie as joint tenants. The amount required on closing, after adjustments, was $188,552.72. The trust ledger statement enclosed in Mr. Cimetta’s reporting letter set out the following:
TRUST LEDGER STATEMENT
Received from Pamela Lesenko $260,676.66
Paid to vendor on closing $188,522.72
Paid Ontario land transfer tax $1,515.00
Paid legal fees and disbursements $1,847.05
Paid to Pamela Lesenko $68,761.89
[10] After the purchase, extensive renovations were completed on the property. According to Pamela, between September 2009 and early 2012 she paid a total of $34,240.76 towards the renovations. Vickie and Ralph acknowledge that Pamela paid the total of $30,000, but they claim that $10,000 was meant to be a reimbursement for past loans. According to Vickie and Ralph, the total cost of the renovations was $198,203.25.
[11] In September 2009, Pamela moved into the Clayton Street property. After the renovations were completed, Pamela took up residence in the loft apartment.
[12] In July 2010, Vickie and Ralph sold their home and moved into the Clayton Street property. Eventually, in October 2010, after the renovations were completed in the bungalow, Vickie and Ralph took up residence in the bungalow. Vickie and Ralph paid for all of the utilities, municipal taxes and insurance for the Clayton Street property.
[13] In April 2012, Pamela moved out of the Clayton Street property and into the residence of a nephew.
Position of the plaintiff
[14] The plaintiff’s evidence as follows is:
The agreement between she, Vickie and Ralph was that each of them would have a one-third ownership interest in the Clayton Street property.
Vickie and Ralph were having difficulty selling their home so they asked that Pamela pay for the Clayton Street property out of the net proceeds of sale of her home, promising that they would reimburse her two thirds of the purchase price as soon as their home sold.
After the Clayton Street property was purchased, Pamela asked Vickie for copies of the documentation representing the purchase, but was never given copies of the documents.
After Ralph and Vickie’s home sold, Pamela asked for repayment of two thirds of the purchase price of the Clayton Street property. Vickie deflected the request and changed the subject.
Pamela asked Vickie on numerous occasions for utility bills so that she could pay her share, however Vickie refused to provide them.
After Pamela continued to request repayment of two thirds of the purchase price, Vickie and Ralph began to treat her poorly. They restricted her use of the communal art studio/shop, ordered her around and berated her with insults.
The abuse turned physical on one occasion when Ralph ordered Pamela to shovel snow off the deck of the Clayton Street property and shoved her.
On one occasion during the winter of 2010, Vickie and Ralph turned off the heat in Pamela’s apartment and locked her out of the garage where the furnace was located.
On one occasion, Pamela came home to find that the telephone and cable had been cut off in her apartment, much of her artwork and supplies and jewelry had gone missing and the locks had been changed on the art studio/ shop.
Ultimately in April 2012, when the living conditions became unbearable, Pamela was forced out of the Clayton Street property. She moved in with her nephew as she had no money remaining to purchase or rent a place to live.
[15] Pamela seeks the return of monies that she invested into the Clayton Street property.
Position of the defendants
[16] Ralph and Vickie provided the following evidence:
Ralph and Vickie did not have funds available to purchase the Clayton Street property until their home in Sarnia could be sold. Pamela was very much in favour of purchasing the property and offered to pay for the property from the proceeds of the sale of her home in return for her being able to live at the property for the rest of her life.
Ralph and Vickie agreed to Pamela’s suggestion on the understanding that Ralph and Vickie would cover the cost of most of the renovations to the property with Ralph undertaking most of the labour. Pamela’s costs of living, including utilities, taxes and insurance would be tracked and paid for by Vickie and Ralph. If Ralph and Vickie died before Pamela, she could continue to live at the property for as long as she wished. If Pamela moved out of the property in the future and after Ralph and Vickie’s death, she would be entitled to one third of the net proceeds from the sale of the property.
Ralph and Vickie provided Pamela with assistance in cleaning her home and bringing it into a saleable condition.
Pamela never requested a copy of the documents with respect to the purchase of the Clayton Street property.
Vickie and Ralph revised their wills to account for their agreement to provide a lifetime home for Pamela.
Pamela contributed approximately $20,000 towards renovation costs and an additional $10,000 as reimbursement for loans that had been given to her in the past. Pamela also paid for some costs because she was living at the property while renovations were under way and deliveries were being made. Pamela was paid back for most of her out-of-pocket on-site costs in cash.
Ralph and Vickie did not ever try to force Pamela to leave the property. Vickie tried talking to Pamela many times as it was obvious in 2012 that she was unhappy, but the conversations always ended with Pamela screaming at Vickie.
Vickie and Ralph deny each and every allegation of physical and verbal abuse.
Pamela was never locked out of the garage, nor were her heat or utility services ever cut off.
After Pamela had left the property, Vickie and Ralph discovered that she had removed and taken with her all of the appliances installed in the loft along with lighting and plumbing fixtures.
[17] The defendants take the position that at best Pamela is owed 46% of the value of the property as at May 2012. At that time, the appraised value of the property was $252,000. The defendants take the position that this is not a case for summary judgment as the parties need to provide viva voce evidence to determine the terms of the agreement between them.
Analysis
[18] The plaintiff’s motion for summary judgment is brought under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Under rule 20.04(2), I am required to grant summary judgment if I am satisfied that there is no genuine issue requiring a trial. According to rule 20.04(2.1), in determining whether there is a genuine issue requiring a trial I am required to consider the evidence submitted by the parties and I am entitled to weigh the evidence, evaluate the credibility of a deponent and/or draw reasonable inferences from the evidence.
[19] The Supreme Court of Canada has provided considerable direction to a judge hearing a summary judgment motion in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. At paras. 49 and 50 the court said the following:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective.
[20] In the case at hand, the following facts are clear: Pamela paid $191,914.11 for the purchase of the Clayton Street property; Pamela paid at least an additional $30,000 towards the renovations at the Clayton Street property; the Clayton Street property was registered in the names of Vickie and Ralph on Vickie’s instructions to the lawyer handling the purchase; Vickie and Ralph did not contribute anything towards the purchase of the property; Vickie and Ralph did contribute towards the renovations; Vickie and Ralph have paid the ownership costs, being taxes and insurance, and the utilities; and Pamela left the property in April 2012.
[21] Pamela has limited means. Her evidence is that she invested her entire life savings to the purchase and renovation of the property. She currently is in receipt of social assistance and residing with her nephew.
[22] I prefer Pamela’s evidence over the evidence of Vickie and Ralph. I find that Pamela invested all of her money in the Clayton Street property with the expectation of receiving an interest in the property. I do not accept that, particularly in her limited financial circumstances, Pamela would have agreed to the deal suggested by Vickie and Ralph. I find that, based on the entirety of the evidence before me, Vickie and Ralph orchestrated the purchase of the Clayton Street property so as to ensure that only Pamela’s money was used for the purchase and the property was registered in their names. Thereafter, Vickie and Ralph accepted additional monies from Pamela towards the renovations, all the while knowing that Pamela did not have an interest in the property and would likely not see the return of her money. Vickie and Ralph have been enriched to the detriment of Pamela. This is a situation that must be remedied. I find that I am able to reach a fair and just determination on the merits without the necessity of a trial.
[23] In her statement of claim, the plaintiff claims a return of the money she invested in the property by way of unjust enrichment. When a person transfers property to another, or when a person purchases property in the name of another, without consideration, there is a presumption that the recipient holds the property in trust for the transferor. This presumption applies between siblings. The recipient may rebut the presumption with evidence of the transferor’s actual intention at the time of the transfer on a balance of probabilities: see Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795; Fournier v. Harinko Estate, 2016 ONSC 5971. Vickie and Ralph have not rebutted the presumption.
Result
[24] I find that Pamela has an interest in the Clayton Street property equal to her investment in that property. I find that Pamela’s investment in the property totals $221,914.11 (being the initial purchase of $191,914.11 plus $30,000 contributed towards the renovations). It seems to me that the fairest and most expeditious way for Pamela to realize her interest would be to grant her judgment against Vickie and Ralph in that amount.
[25] Vickie and Ralph have suggested that Pamela’s entitlement be reduced by her share of the ownership costs they paid during the period of time that Pamela resided at the property. I am not prepared to follow that suggestion. Vickie and Ralph have enjoyed Pamela’s investment in the property without paying her interest or occupation rent. Any monies that Pamela owes to Vickie and Ralph for utilities and other such expenses would, in my view, be offset by occupation rent that they ought to have paid to Pamela during the same time period. I am prepared to limit Pamela’s entitlement to prejudgment interest to the period commencing May 1, 2012. Her entitlement to prejudgment interest before that date is offset against the utilities and carrying costs that were paid by the defendants on her behalf.
[26] For the foregoing reasons, I order as follows:
The plaintiff’s motion for summary judgment is granted. The defendants shall pay to the plaintiff the total sum of $221,914.11.
The defendants shall pay to the plaintiff prejudgment interest at the Courts of Justice Act, R.S.O. 1990, c. C.43, rate from May 1, 2012 to the date of this judgment and post-judgment interest thereafter to the date of payment.
In the event the parties are unable to agree on costs, they may make written submissions, to include a costs outline and any applicable offers to settle, according to the following timelines:
a) the plaintiff may provide her submissions within 20 days;
b) the defendants may provide their submissions within 10 days thereafter;
c) the plaintiff may provide any reply submissions within 10 days thereafter.
Original signed “Hebner J.”
Pamela L. Hebner
Madam Justice
Released: October 27, 2016
CITATION: Lesenko v. Guerette and MacEachran, 2016 ONSC 6633
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Pamela Lesenko
Plaintiff
– and –
Victoria (Vickie)Guerette and Ralph MacEachran
Defendants
REASONS ON MOTION
Hebner J.
Released: October 27, 2016