Court File and Parties

COURT FILE NO.: CV-1800602724 DATE: 20190513 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Troy Rennie AND: Maureen Rennie and the Estate of Mary Kathleen Rennie

BEFORE: Mr. Justice Chalmers

COUNSEL: S. Tock, for the Applicant G. Cadogan, for the Respondent

HEARD: April 17, 2019

Endorsement

Overview

[1] The Applicant, Troy Rennie (“Troy”), is seeking an order directing the sale of the property known municipally as 1299 Pape Avenue (the “Property”). He is also seeking an order removing Mary Kathleen Rennie (“Mary”) as a registered owner of the Property and rectifying title.

[2] Troy takes the position that he is a registered owner of the Property and therefore has a right to an order of partition and sale. Maureen Rennie (“Maureen”) is opposing the Application brought by Troy on the basis that he is not an owner of the Property. In the alternative, Maureen argues that even if Troy is an owner of the Property, the court should exercise its discretion to deny the sale because of malicious, vexatious or oppressive conducts.

[3] For the reasons that follow, I find that Troy is an owner of the Property, and is entitled to partition and sale of the Property.

Analysis

[4] The Property was purchased by Mary and her husband, Peter Rennie (“Peter”) in 1973. Peter died in 2004. After Peter’s death, Mary’s daughter, Maureen, was added to the title of the Property as a registered owner with Mary, as joint tenants.

[5] On February 21, 2008, Mary executed a Will. On the same date, she also executed a Power of Attorney appointing Maureen as her attorney for property.

[6] On September 2, 2008, Maureen, on her own behalf, and as attorney for Mary completed a transfer of property which transferred ownership in the Property from Mary and Maureen as joint tenants to Mary, Maureen and Troy, as joint tenants. The Transfer document indicates that the transfer was for nominal consideration. The Land Transfer Tax Statement provides that the transfer was a gift.

[7] The Transfer was registered on title; AT1884110. There have been no subsequent registrations.

[8] The registered Transfer indicates that the Transfer was executed by Maureen on behalf of Mary pursuant to the Power of Attorney. The lawyer who acted on the transaction, indicated on the Transfer that he reviewed the Power of Attorney with Maureen. She confirmed that she was the lawful party named on the Power of Attorney, was acting within the scope of authority granted under the Power of Attorney, and that to the best of her knowledge, information and belief, the Power of Attorney was lawfully given and has not been revoked.

[9] Maureen takes the position that although the Transfer purports to transfer an ownership interest in the Property to Troy, Troy is not an owner of the Property. She raises three main arguments:

• The Property was not transferred to Troy on September 2, 2008 because Mary did not know of, or consent to the Transfer;
• The Transfer was subject to an oral trust agreement whereby Troy agreed to hold his interest in the Property in trust for Maureen; and
• The Transfer was for nominal consideration and therefore was a resulting trust which reverted to the estate of Mary upon her death.

[10] In the alternative, Maureen takes the position that even if Troy is an owner of the Property, the court should exercise its discretion to deny the sale because of malicious, vexatious or oppressive conduct.

Mary did not Consent to the Transfer

[11] It is the position of Maureen that Mary did not intend to transfer any ownership interest in the Property to Troy.

[12] It is important to note that Maureen, as a joint tenant, transferred title both with respect to her interest in the Property and on behalf of Mary pursuant to the Power of Attorney. Maureen instructed counsel to proceed with the transaction. She reviewed the Power of Attorney with her lawyer and confirmed that she was acting pursuant to a valid Power of Attorney. In argument, Maureen did not take the position that the Power of Attorney was invalid or that she exceeded the authority granted to her pursuant to the Power of Attorney.

[13] I find that the ownership of the Property was properly transferred to Mary, Maureen and Troy as joint tenants on September 2, 2008. The Transfer was executed by Maureen and there is no suggestion that Maureen did not intend to execute the Transfer on her own behalf. Maureen also executed the Transfer on behalf of Mary, pursuant to the legal authority conferred to her by the Power of Attorney.

Transfer was Subject to an Oral Trust Agreement

[14] Maureen has taken the position that if there was a valid transfer of ownership, the transfer was subject to an oral agreement between Troy and her pursuant to which Troy agreed to hold the Property in trust for her. Maureen, in her affidavit sworn February 19, 2019, states that Troy was added as a joint tenant to save money on the estate taxes and that the property would remain hers until her death.

[15] Troy in his affidavit denies that there was any agreement that he would hold the Property in trust for Maureen.

[16] There is no reference on the Transfer document that Troy was to hold the Property in trust for Maureen. Maureen retained a lawyer to act on the transfer and therefore could have ensured that the Transfer document reflected the oral agreement. Also, a trust agreement could have been prepared. There is no documentary evidence to support Maureen’s position that the Property was to be held by Troy in trust for Maureen. All of the documentary evidence including the Transfer registered on title supports the finding that Troy was an owner of the Property: Karistinos v. Karistinos, 2016 ONSC 3777.

[17] I find that the Transfer of the Property to Troy was not subject to an oral trust agreement. There is insufficient evidence to support the existence of such an agreement. In any event, an agreement granting an interest in land is void unless in writing and signed by the parties: Statute of Frauds, R.S.O. 1990, c.S.19, s.1(1).

The Transfer to Troy was a Resulting Trust

[18] Maureen argues that the transfer of the Property was for nominal consideration and therefore there is a rebuttable presumption of a resulting trust in which case the interest transferred to Troy would revert to Mary’s estate upon her death.

[19] The Land Titles Registration confirms that on September 2, 2008, title of the Property was transferred from Mary and Maureen to Mary, Maureen and Troy as joint tenants. The consideration was $1.00. The Land Transfer Tax Statement indicates that the transfer was a gift. Troy, in his affidavit, deposed that he believed the transfer to him was a gift.

[20] I am satisfied that the essential ingredients of a legally valid gift to Troy have been established. There is evidence of an intention to make the gift on the part of Mary and Maureen, acceptance of the gift by Troy, and transfer of the property to Troy: McNamee v. McNamee, 2011 ONCA 533 para 24.

[21] Section 13 of the Evidence Act provides that a gift cannot be proven based on the evidence of the recipient alone; there must be corroboration. The corroborating evidence can be direct or circumstantial, and it can consist of a single piece of evidence: Burns Estate v. Mellon at para. 29. In the case of a gift of land, the Land Transfer Tax Statement is sufficient evidence to provide corroboration: Bao v. Mok, 2019 ONSC 915 (SCJ) at paras. 78-85.

[22] The Land Transfer Tax Statement confirms that the transfer of the Property to Troy was a gift. I am satisfied the Land Transfer Tax Statement is sufficient evidence to corroborate the fact that the transfer of the Property to Troy was a gift, and therefore the presumption of a resulting trust is rebutted.

Ownership of the Property

[23] I find that the title to the Property was transferred to Troy, Mary and Maureen on September 2, 2008. The Transfer was registered on title; AT1884110. Registration of title in the Land Titles System reflects the actual state of title in the Property: Stanbarr Services Limited v. Metropolis Properties Inc., 2018 ONCA 244, at para. 13.

[24] I therefore conclude that Troy is an owner of the Property.

Partition and Sale

[25] As an owner of the Property, Troy has a prima facie right to partition and sale: Afolabi v. Fala, 2014 ONSC 1713 (SCJ), at para. 27.

[26] A request made by an owner of a property for partition and sale will be denied only in exceptional circumstances. A court has discretion to refuse the partition and sale if there is malicious, vexatious or oppressive conduct on the part of the party requesting the sale. The onus is on the party opposing the partition and sale to establish that there was malicious, vexatious and oppressive conduct: Brienza v. Brienza, 2014 ONSC 6942, at paras. 23-27.

[27] Maureen has not put forward any evidence that Troy is acting with vexatious or malicious intent in requesting the sale. A request for a sale by a joint tenant cannot be, in and of itself, vexatious: Kaphalakos v. Dayal, 2016 ONSC 3559 at para 26.

[28] Maureen takes the position that a sale of the Property would be oppressive because she does not have enough money to live elsewhere. As stated above, the onus is on the party opposing the sale to establish that the sale is oppressive. Maureen has not put forward any evidence as to her level of income or the cost of alternative accommodation. She does not address the fact that she will receive a share of the proceeds from the sale of the Property.

[29] I find that Maureen has failed to satisfy the onus to establish that there has been malicious, vexatious or oppressive conduct to oppose the sale.

Conclusions

[30] I therefore conclude as follows: (1) Title to the property was transferred to Troy, as a joint tenant, on September 2, 2008; (2) There is no admissible evidence that the Transfer was subject to an oral trust agreement; (3) There is corroborating evidence that the Transfer was a gift and therefore the presumption of a resulting trust is rebutted; (4) As an owner of the Property, Troy has a prima facie right to partition and sale; and (5) There is no evidence of exceptional circumstances of malicious, vexatious or oppressive conduct to deny the request for a partition and sale of the Property.

Disposition

[31] I therefore order that the Property be sold in accordance with the provisions of the draft order filed and signed by me.

[32] I order that Mary is removed as registered owner of the Property.

[33] Troy is entitled to costs of this Application. Some of the costs relate to the adjournment of the Application, which was originally scheduled for December 12, 2018. The costs of the adjournment were reserved to me.

[34] Justice Spies in her endorsement dated December 12, 2018 set out the history of the proceeding. Counsel of record for the Respondents, Glanville Cadogan, served a Notice of Appearance on September 7, 2018. The Application was originally returnable on October 2, 2018. On consent, the Application was adjourned to December 12, 2018. Mr. Cadogan agreed to serve the responding materials by October 15, 2018. Mr. Cadogan failed to file any responding materials and did not respond to the e-mails from counsel for the Applicant with respect to the delivery of the responding materials. On December 7, 2018, Mr. Cadogan’s assistant advised counsel for the Applicant that Mr. Cadogan was ill and would not be attending the court on December 12, 2018. On the morning of the Application, Mr. Cadogan did not attend, and instead Maureen attended court on her own behalf to request an adjournment. She advised the court that Mr. Cadogan had failed to communicate with her.

[35] Justice Spies found that Mr. Cadogan had dealt with this matter in an inappropriate manner and as a result the attendance on December 12, 2018 was unnecessary and resulted in additional costs to the Applicant. She noted that even if Mr. Cadogan was too ill to attend court on December 12, 2018, that did not explain why he had failed to file responding material. She was not prepared to make an order of costs against Mr. Cadogan personally because he was not in attendance and could not make representations. She provided notice to Mr. Cadogan, pursuant to R. 57.07(3) of the Rules of Civil Procedure that an order that he pay costs personally may be made and that he is to be prepared to make representations on the issue on the return date of the Application.

[36] On the Application, Mr. Cadogan submitted that he is unable to provide an explanation for his failure to attend court on December 12, 2018, because of solicitor-client privilege. He did not deal with the issue of his illness in December 2018, which allegedly prevented him from attending court. He did not submit a doctor’s note or provide any other evidence as to his medical condition.

[37] It is a very serious matter that Mr. Cadogan, as solicitor of record, did not attend court on December 12, 2018 and as a result his client had to personally request an adjournment. I agree with Justice Spies that Mr. Cadogan’s conduct resulted in an unnecessary attendance and increased costs to the Applicant. If he was too ill to attend court he ought to have produced some evidence with respect to his medical condition. If there were issues with his retainer, he ought to have personally attended court on December 12, 2018 to request an adjournment so the issues with his client could be resolved.

[38] Troy is entitled to his costs of this Application fixed in the amount of $10,000, inclusive of counsel fee, HST and disbursements. I order Mr. Cadogan to personally pay $1,000, and Maureen to pay the balance of $9,000.

Chalmers, J. Date: May 13, 2019