Court File and Parties
COURT FILE NO.: CV-15-0331-00 DATE: 2017 Apr 25
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT ALTMAN and ARLENE ALTMAN Plaintiffs (Responding Party) – and – ESTATE OF JANICE ELEANOR NICHOLSON, RAINER GEWALT, Estate Trustee for the Estate of Janice Eleanor Nicholson and ANGELIKA GEWALT, Estate Trustee for the Estate of Janice Eleanor Nicholson Defendants (Moving Party)
Counsel: Joseph Gyverson, for the Plaintiffs (Responding Party) Scott McMahon, for the Defendants (Moving Party)
HEARD at Belleville: April 10, 2017
TRANMER, j.
MOTION DECISION
[1] The Defendants move under Rule 21 and alternatively, Rule 20.
[2] For the purposes of my decision, I need only consider the Rule 21 submissions made by the parties in writing and orally. It is unnecessary to go on and consider the motion under Rule 20.
[3] No evidence was considered. I did not grant leave for evidence to be filed. Indeed, I was not asked to for the purposes of Rule 21. Affidavit evidence was filed on the Rule 20 aspect of the motion.
[4] The Defendants seek an Order that the Statement of Claim does not disclose a cause of action that would support the relief sought as set out in paragraph 1(b) and 1(c) of the Statement of Claim. They submit that, as such, the motion meets the requirements of Rule 21.01(1)(a).
[5] The Defendants submit that the Statement of Claim precludes a claim for an ownership of the subject cottage land or a vesting of all right, title and interest in the subject cottage land.
[6] They submit that the requirements of a gift as set out in McNamee are not met (para. 24), in the Statement of Claim, in particular, an intention to make a gift on the part of the deceased. Paragraph 22 pleads she did not intend to convey due to capital gains tax liability.
[7] The Defendants submit that the Statement of Claim does not plead trust, proprietary estoppel, unjust enrichment or detrimental reliance. The Plaintiffs agree that there are no such pleadings specifically made. The Plaintiffs have not moved to amend the Statement of Claim although this motion was served in November 2016.
[8] The Defendants submit that the test in Elbaum v. York Condominium Corp. No. 67, 2014 ONSC 1182, para. 14, is met. The Defendants submit that it is plain, obvious and beyond doubt that the Plaintiffs’ claims cannot succeed as pleaded.
[9] The Defendants also cite law that real property cannot be the subject of a donatio mortis causa, and that the Statement of Claim acknowledges that delivery of the gift of the subject land was not complete. (Dyck v. Cardon, 1984 CarswellAlta 284 (Alta. C.A.), para. 11-13). Delivery of keys does not complete a gift.
[10] I agree with the Defendants that the Statement of Claim does not plead trust, proprietary estoppel, unjust enrichment or detrimental reliance. Indeed, paragraph 28 sets out a sparse pleading of some work done to the property over the years without any quantification and much use of the cottage by the Plaintiffs. The Plaintiffs agree there are no such specific allegations set out in the Statement of Claim.
[11] The Plaintiffs rely on Section 10 of the Statute of Frauds.
[12] The Plaintiffs submit that the court can construe the pleadings to invoke the doctrines of proprietary estoppel, donatio mortis causa and constructive trust.
[13] With respect to proprietary estoppel, the Plaintiffs cite Schwark v. Cutting, 2010 ONCA 61 at para. 34. I find that the Statement of Claim does not allege detrimental reliance or unconscionability. The allegations fall short of the facts in Love v. Schumacher, 2014 ONSC 4080 and in particular, as seen at paras. 15, 17 and 24.
[14] With respect to donatio mortis causa, the Statement of Claim pleads that the deceased decided she couldn’t or wouldn’t convey due to a capital gains tax liability. (para. 22)
[15] There is no allegation that the deceased held the subject property in trust for the Plaintiffs. In fact, the deceased decided what she wanted to do with it – not convey and not bequest it to the Plaintiffs.
[16] It is plain, obvious and beyond doubt that the claim set out in the Statement of Claim cannot succeed.
[17] The relief sought by the Defendants on this Rule 21 motion as I set out in paragraph 4 hereof is granted.
[18] If the parties cannot agree on costs, the Defendants may deliver and file written submissions within 7 days, limited to a maximum of 3 pages and the Plaintiffs may respond in 5 days thereafter.