Court File and Parties

COURT FILE NO.: CV-18-603749 DATE: 2019-05-16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROBERT EDWARD PIERCE, Plaintiff AND: LESLEY KAREN BELOWS, Defendant

BEFORE: Sossin J.

COUNSEL: John O’Sullivan, Counsel for the Plaintiff Jordan Goldblatt, Counsel for the Defendant

HEARD: March 29, 2019

Reasons for Judgment

Overview & Facts

[1] The defendant, Lesley Belows (“Belows”), brings this motion under Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules of Civil Procedure”) for summary judgment to dismiss the claim by Robert Pierce (“Pierce”).

[2] Pierce brought his claim seeking to be repaid for loans he advanced to Belows. While the debts themselves are documented through promissory notes, Pierce’s claim is based on communications he had with Belows in the summer of 2010, which he argues constituted an equitable mortgage or lien to secure the loans in question.

[3] Belows takes the position that no equitable mortgage or lien existed, and that this claim is statute barred under the Limitations Act, 2002.

[4] The parties met in the early 1990s. Pierce was a financial advisor with a firm and Belows was one of the firm’s clients. They had a personal relationship from this point forward. In Pierce’s affidavit, he states (at para. 2), “It ended a few times over the years, but finally ended in 2014.”

[5] Pierce advanced funds on several occasions to Belows between 2004 and 2007.

[6] The first advance in 2004 for $115,000.00 was documented by a promissory note and secured by a mortgage on Belows’ home in Toronto (the “2004 mortgage”).

[7] Subsequent advances in 2005 of $9,000.00 and in 2007 of $50,000.00 were made and documented in separate, promissory notes. The promissory notes indicated that interest would accrue at 4%, and that these advances were to be added to the 2004 mortgage.

[8] By 2010, the total amount of the advances secured by the mortgage was $174,000.00.

[9] In July of 2010, in order to permit Belows to re-finance the property, and after receiving legal advice, Piece consented to Belows request that he discharge this security. The mortgage was discharged on July 29, 2010.

[10] Shortly thereafter, in January, 2011, Pierce sought to consolidate the advances of 2004, 2005 and 2007 into a new promissory note which would be secured by a new mortgage charge, which was provided to Belows on January 12, 2011. Belows did not sign these documents.

[11] On January 19, 2012, Pierce informed Belows by email that he would pursue legal action to recover the debt if satisfactory terms could not be agreed to by March 1, 2012.

[12] There is no indication Belows agreed to new terms, or any indication that Pierce pursued legal action after the March 1, 2012 deadline passed, until this claim in August, 2018.

[13] On January 24, 2012, a new, second mortgage on Belows’ home was registered by Donald Young, in the amount of $95,000.00.

[14] In January of 2015, Pierce made a further loan to Belows of $12,000.00, with interest at 4%, and for which Belows’ signed a promissory note.

[15] On August 22, 2018, Pierce issued a statement of claim in this action against Belows seeking recovery of the debts and a declaration that Pierce is entitled to an equitable lien over Belows’ home.

[16] Belows’ statement of defence was filed on October 18, 2018.

[17] On March 1, 2019, Pierce served an amended statement of claim, dated February 28, 2019.

Position of the Parties

[18] Belows’ position on this motion is that Pierce waited six years between threatening legal action on the debt in 2012 and bringing his claim in 2018. As a result, Belows argues that this claim exceeds the two-year limitation period under the Limitations Act, 2002.

[19] Belows asserts that there is no issue requiring a trial in this case, as the expiry of the limitation period for this action is apparent on the record.

[20] Belows denies that she and Pierce entered into an agreement in 2010 that included any equitable mortgage or lien, or which could give rise to other equitable relief such as unjust enrichment, a constructive or resulting trust or promissory estoppel.

[21] Belows also takes the position that the loans at issue were actually gifts.

[22] Pierce argues that he is entitled to equitable relief, including an equitable mortgage or lien over Belows’ home based on the communication between the parties and related conduct in 2010.

[23] Pierce submits that the communications of July 2010 constitute an agreement by which (1) Pierce would discharge the 2004 mortgage, (2) Belows would make a substantial lump sum payment to Pierce to reduce her indebtedness to Pierce, and (3) Belows would execute the necessary documents to register a new, second mortgage to Pierce with respect to the remaining amount of her debt, and (4) execute a new promissory note for the consolidated amount.

[24] In the alternative, Pierce argues that he is entitled to an equitable interest in Belows’ home based on unjust enrichment, a constructive trust and/or promissory estoppel.

[25] In light of Pierce’s assertion that these communications gave rise to an equitable mortgage or lien, he submits that, under the Real Property Limitations Act, R.S.O. 1990, c. L.15 (the “Real Property Limitations Act”), the limitation period for an equitable mortgage or lien is 10 years, thus bringing this action within the limitation period which will not expire until 2020.

[26] Pierce also takes the position that a trial is not necessary to grant judgment in this case, and believes that the record justifies judgment to be granted on his claim (even though there is no cross-motion for summary judgment).

Analysis

Amending the Statement of Claim

[27] As a preliminary matter, Pierce has sought leave to amend his pleadings.

[28] Pierce served an amended statement of claim on Belows March 1, 2019, just prior to the examination for discovery and cross-examination of the defendant on March 4, 2019, and the cross-examination of the plaintiff on March 7, 2019.

[29] Belows consented to two of the three amendments to the statement of claim but opposed a third which expressly pleads promissory estoppel.

[30] Rule 26.01 of the Rules of Civil Procedure provides that,

On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. R.R.O. 1990, Reg. 194, r. 26.01.

[31] In this case, Pierce alerted Belows to this amendment prior to the examinations for discovery, and the underlying foundation for the promissory estoppel pleadings already formed part of the statement of claim.

[32] In these circumstances, and in the absence of demonstrated prejudice to Belows, Pierce’s motion to amend the statement of claim in order to include the pleading of promissory estoppel is granted.

Summary Judgment

[33] Rule 20.04(2)(a) governs motions for summary judgment, and provides:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent

3. Drawing any reasonable inference from the evidence

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[34] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, guides the Court on a summary judgment motion. The governing principles were set out by Justice Karatkasanis (at paragraphs 49-50),

[49] 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.

[50] These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. 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. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[35] If I find that there are genuine issues requiring a trial, and the motion record is not sufficient for those issues to be decided, I must consider if I can decide the issues using the enhance tools under the summary judgment rule.

[36] In this case, there are very few facts in dispute. The dispute lies, rather, in the parties’ interpretation of the facts generally, and specifically the interpretation of Pierce’s consent to discharge his charge on Belows’ home in 2010.

[37] If the communications in 2010 established an equitable mortgage or lien, or other equitable interest in Belows’ home such as a constructive trust, then the 10 year limitation period set out in the Real Property Limitations Act applies, as set out in these provisions:

4. No person shall make an entry or 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. R.S.O. 1990, c. L.15, s. 4.

23 (1) No action shall be brought to recover out of any land or rent any sum of money secured by any mortgage or lien, or otherwise charged upon or payable out of the land or rent, or to recover any legacy, whether it is or is not charged upon land, but within ten years next after a present right to receive it accrued to some person capable of giving a discharge for, or release of it, unless in the meantime some part of the principal money or some interest thereon has been paid, or some acknowledgment in writing of the right thereto signed by the person by whom it is payable, or the person’s agent, has been given to the person entitled thereto or that person’s agent, and in such case no action shall be brought but within ten years after the payment or acknowledgment, or the last of the payments or acknowledgments if more than one, was made or given. R.S.O. 1990, c. L.15, s. 23 (1).

43 (1) No action upon a covenant contained in an indenture of mortgage or any other instrument made on or after July 1, 1894 to repay the whole or part of any money secured by a mortgage shall be commenced after the later of,

(a) the expiry of 10 years after the day on which the cause of action arose; and

(b) the expiry of 10 years after the day on which the interest of the person liable on the covenant in the mortgaged lands was conveyed or transferred. 2002, c. 24, Sched. B, s. 26 (1).

[38] If those communications did not establish an equitable mortgage or lien, or other equitable interest in Belows’ home, then the two-year limitation period in section 4 of the Limitations Act, 2002 applies, and this action is statute barred, given the passage of more than two years from the various outstanding promissory notes (with the exception of the loan of 2015).

[39] Therefore, in order to determine which limitation period applies to this action, it is necessary to determine (1) if on the evidence, an equitable mortgage or lien was created in 2010 after the discharge of the 2004 mortgage; and (2) if any other relief is available to Pierce that is not statute barred?

Was An Equitable Mortgage Or Lien Created In 2010?

[40] Based on the evidence in this case, has Pierce established that an equitable mortgage or lien was created in his favour in 2010 once the 2004 mortgage was discharged?

[41] The requirements of an equitable mortgage were set out in Elias Markets Ltd., Re (“Elias”). Writing for the Court, MacFarland J.A. held (at paras. 63-65),

[63] An equitable mortgage is distinct from a legal mortgage. “An equitable mortgage is one that does not transfer the legal estate in the property to the mortgagee, but creates in equity a charge upon the property”: A.H. Oosterhoff & W.B. Rayner, Anger and Honsberger: Law of Real Property, 2d ed. (Aurora, Ont.: Canada Law Book) at 1643.

[64] The concept of an equitable mortgage would seem to find its foundation in the equitable maxim that “equity looks on that as done which ought to be done”. Historically, the courts of equity mitigated the rigour of the common law, tempering its rules to the needs of particular cases on principles of justice and equity. The common law courts were primarily concerned with enforcing the strict legal rights of the parties, whereas equity was a court of conscience; it would step in to prevent an injustice that would otherwise arise from the strict application of the law.

[65] In essence, the concept of an equitable mortgage seeks to enforce a common intention of the mortgagor and mortgagee to secure property for either a past debt or future advances, where that common intention is unenforceable under the strict demands of the common law.

[42] In discussing how an equitable mortgage is created in Elias, MacFarland J.A. adopted the following passage from Fisher and Lightwood’s Law of Mortgage, 7th ed., at p. 16:

Equitable mortgages of the property of legal owners … are created by some instrument or act which is insufficient to confer a legal estate, but which, being founded on valuable consideration, shows the intention of the parties to create a security; or in other words, evidences a contract to do so.

In Falconbridge, Law of Mortgages, 4th ed., at p. 80, the following statement is made about equitable mortgages:

An equitable mortgage therefore is a contract which creates in equity a charge on property but does not pass the legal estate to the mortgagee. Its operation is that of an executory assurance, which, as between the parties, and so far as equitable rights and remedies are concerned, is equivalent to an actual assurance, and is enforceable under the equitable jurisdiction of the court.

5.2 How an Equitable Mortgage is Created

The equitable nature of a mortgage may be due either (1) to the fact that the interest mortgaged is equitable or future, or (2) to the fact that the mortgagor has not executed an instrument sufficient to transfer the legal estate. In the first case the mortgage, be it [ever] so formal, cannot be a legal mortgage; in the second case it is the informality of the mortgage which prevents it from being a legal mortgage. These alternatives will be discussed separately. (3) An equitable mortgage may also be created by deposit of title deeds.

[43] An equitable lien is a related concept, described by Pattillo J. in Trez v. Wynford, 2015 ONSC 2794 at paras. 24-25,

[24] An equitable lien is a form of equitable charge upon property until certain claims are satisfied. It arises by operation of equity from the relationship of the parties, rather than by any act of theirs: Snell’s Equity, 32nd edition, General Editor John McGhee (2010, Thomson Reuters) at Ch. 44-004, p. 1146.

[25] Equitable liens will be available in circumstances that would give rise to a constructive trust (such as breach of fiduciary obligation and breach of confidence) as well as circumstances outside the fiduciary context such as response to improvements made to land under mistake and in the context of indemnity insurance: Maddaugh and McCamus, The Law of Restitution, Looseleaf Edition, at pp. 5-45 and 5-46.

[44] In this case, Pierce argues that the equitable mortgage or lien arises from the fact that he and Belows agreed to the new mortgage following the discharge of the 2004 mortgage, but Belows did not execute the mortgage instrument.

[45] Pierce relies upon email communication between him and Belows in July, 2010, in advance of his discharging the 2004 mortgage, to support his claim of an equitable mortgage or lien in this case.

[46] Belows wrote an email to Piece on July 21, 2010 asking him to discharge the 2004 mortgage, and she stated, “You can register another mortgage if you desire.” She also indicated there was urgency to her request.

[47] Pierce wrote an email to Belows on July 27, 2010, stating “… I am discharging the 2nd mortgage. You are repaying a portion and I’m putting a new mortgage in place… Let’s make sure everything is clear here.” She replied, “I clearly understand you and our agreement.”

[48] While Belows indicated several times in this exchange that she understood Pierce sought to put a new mortgage in place, the specific terms of the new mortgage were not finalized. Pierce wrote, “You understand that I will replace the existing mortgage with another, right? My mort is about $200,000. including accrued interest. You want to repay $75,000. That leaves $125,000. Does that make sense to you?”

[49] Belows does not specifically address these terms, nor does Pierce raise any other details of the new mortgage (its term, interest rate, or other provisions). The context may suggest the new mortgage would be on similar terms as the prior mortgage, but key elements remained to be negotiated and finalized.

[50] The record also makes clear that Pierce’s lawyer advised him of the risks of discharging the 2004 mortgage. Pierce retained Anita Houshidari (“Houshidari”), who warned him of the risks associated with this action, in an email dated July 23, 2010,

We can certainly discharge your current mortgage and register a new mortgage once the bank’s has been registered. I should tell you, though, and I’m sure you are aware, that after we discharge your mortgage, there will be a risk to you in that you will not have legal title to any of the outstanding amounts owed to you and will be taking your friend’s word that they will be willing to re-register your mortgage. (Emphasis added.)

[51] In a follow-up email dated July 28, 2010, Houshidari stated once again that it was advisable not to “discharge a mortgage until payment has been received as without the mortgage on title you be left unsecured.”

[52] Notwithstanding this advice, Pierce instructed Houshidari to discharge the 2004 mortgage, and indicated that the new mortgage would have “similar terms” to the prior one, but with a maturity date of July 31, 2012.

[53] In his affidavit, Pierce describes the transaction in the following terms (at para. 15),

Despite these two separate warnings from my lawyers, I decided to take the risk because of the friendship between me and Lesley, and because I trusted her.

[54] On August 3, 2010, after the discharge, Belows wrote to Pierce and stated with respect to the transaction,

[I]t was submitted to the bank on Thurs at 6pm before a long weekend. Now only Tues afternoon. Have heard nothing. As soon as I do, I will arrange to get the biggest possible cheque to you, then you can do whatever it is that you feel you need to do. I am sorry that this has dragged out for so long. Hopefully it will all be over and done with soon, and it can al be put behind as a lesson learned.

[55] On September 16, 2010, Belows sent Pierce a cheque for $25,000.00 to reduce the amount of her debt to him. While Pierce alleges that this was a payment related to the mortgage, and therefore engages s. 23(1) of the Real Property Limitations Act, at the time of this payment, there was no mortgage, only unsecured debt.

[56] In early January, 2011, Pierce’s counsel sent Belows the documentation to register a mortgage on similar terms to the 2004 mortgage, with a principal amount of $186,968.00. Belows did not sign these documents.

[57] I find that at the time he discharged the 2004 mortgage, Pierce was aware of the risk inherent in this action. He decided to take this risk because of his relationship with Belows. While Pierce may have believed Belows would take the necessary steps to allow a new mortgage to be registered after the refinancing of her house, and while Belows may have intentionally led him to believe this, these circumstances do not constitute an enforceable, equitable mortgage or lien.

[58] In short, at most, Pierce and Belows agreed to agree to a new mortgage after the discharge of the 2004 mortgage. I find that the communications in advance of the discharge of the 2004 mortgage lacked the necessary detail, clarity and certainty to constitute an equitable mortgage or lien.

[59] This case may be distinguished from cases in which equitable mortgages and liens were found to exist, where agreements were concluded and their shared intention to enter into specific mortgage terms clear, though irregularities or defects prevented them from giving rise to the transfer of legal rights (see, for example, Goldhar Estate v. Mann, 2016 ONSC 6872).

[60] This conclusion is further supported by the legal advice Pierce received on the eve of the discharge of the 2004 mortgage. Pierce was advised that he could take steps at that point to have Belows confirm in writing an undertaking to enter into a new mortgage, or otherwise finalize the details of the new mortgage in advance of the discharge, but it appears in light of their relationship and his desire to help Belows, he was prepared to assume the risk of Belows’ debt to him being unsecured.

[61] As a result, I find that the evidence in this case does not support the existence of an equitable mortgage or lien in favour of Pierce.

Did The Conduct Of The Parties Give Rise To Unjust Enrichment, A Constructive Trust Or Promissory Estoppel?

[62] Beyond the claim to an equitable mortgage or lien, Pierce asserts that the communications between the parties and their conduct in relation to the discharge of the 2004 mortgage give rise to other equitable remedies based on the doctrines of unjust enrichment, a constructive trust or promissory estoppel.

[63] With respect to unjust enrichment, Pierce claims that the loans he provided to Belows allowed her to maintain ownership of her home, which has increased significantly in value since the loans were made.

[64] The Supreme Court in Moore v. Sweet, 2018 SCC 52, at paras. 35-39 affirmed the three-part elements of this equitable doctrine: first, Pierce must show that Belows was enriched; second, Pierce must show a corresponding deprivation; and third, Pierce must establish the absence of a juristic reason.

[65] Assuming it could be said that Pierce’s loans to Belows provided a tangible benefit to Belows at the expense of Pierce, has Pierce established the absence of a juristic reason?

[66] Writing for the Majority in Moore v. Sweet, Côté J. described this element of unjust enrichment as follows (at paras. 54-55),

[54] Having established an enrichment and a corresponding deprivation, Michelle must still show that there is no justification in law or equity for the fact that Risa was enriched at her expense in order to succeed in her claim. As observed by Cromwell J. in Kerr (at para. 40):

The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason. To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case . . . . [Emphasis added.]

[55] This understanding of juristic reason is crucial for the purposes of the present appeal. The third element of the cause of action in unjust enrichment is essentially concerned with the justification for the defendant’s retention of the benefit conferred on him or her at the plaintiff’s expense — or, to put it differently, with whether there is a juristic reason for the transaction that resulted in both the defendant’s enrichment and the plaintiff’s corresponding deprivation. If there is, then the defendant will be justified in keeping or retaining the benefit received at the plaintiff’s expense, and the plaintiff’s claim will fail accordingly. At its core, the doctrine of unjust enrichment is fundamentally concerned with reversing transfers of benefits that occur without any legal or equitable basis. As McLachlin J. stated in Peter (at p. 990), “It is at this stage that the court must consider whether the enrichment and detriment, morally neutral in themselves, are ‘unjust’.”

[67] The liabilities between the parties in this case flow from promissory notes which also constitute clear contracts. Pierce’s decision not to assert his legal rights in relation to these promissory notes in 2012, or thereafter until 2018, cannot be said to give rise to a claim for unjust enrichment.

[68] Therefore, I find that Pierce has not established the absence of a juristic reason for Belows’ benefit and his deprivation.

[69] Pierce’s claim of a resulting or constructive trust flow directly from his claim for unjust enrichment. Pierce pleads the following in his amended statement of claim (at para. 21.1),

The loans described herein have unjustly enriched and deprived the plaintiff, without juristic reason. The loans also permitted the defendant to maintain ownership of 14 Bracondale Hill which has increased significantly in value since the loans were made. The plaintiff is entitled to an appropriate remedy in equity, including an equitable mortgage or lien over 14 Bracondale Hill, and a constructive trust over the property to the extent of the value of the loans described herein plus interest accrued thereon.

[70] Therefore, having found no unjust enrichment, I also find the remedy of a constructive trust is not available on the evidence in this case.

[71] In light of the amended statement of claim, it is also necessary to address Pierce’s claim of promissory estoppel. In his factum, Pierce elaborates on this claim as follows (at para. 10-11),

10. By her words and conduct Ms Belows made a promise and gave an assurance that Mr. Pierce could register a mortgage over Brancondale after the institutional re-financing, on for [sic] the principal amount owing after her payment, on the terms of the 2004 Mortgage. This promise and assurance was intended to affect her legal relationship with Mr. Pierce, and to be acted upon. In reliance on that promise and assurance Mr. Pierce changed his position by discharging the 2004 Mortgage. The principles of promissory estoppel prevent Ms Belows from now refusing to permit registration of Mr. Pierce’s mortgage.

11. By her words and conduct after Mr. Pierce discharged his mortgage in the course of negotiations that followed, Ms Belows made representations that has the effect of leading Mr. Pierce to believe that she acknowledged and did not dispute and would pay her debt to him. The principles of promissory estoppel prevent Ms Belows from relying on a limitation period defence to this action.

[72] While there is a basis in the record to conclude that Belows indicated she agreed to permit a future charge to secure Pierce’s loans after he discharged the 2004 mortgage, I have found that these email exchanges in July of 2010 did not constitute an oral agreement on the terms and conditions of a new mortgage.

[73] Based on those email exchanges, I find that it remained open to Belows and Pierce to further negotiate the principal, term and other conditions of a new mortgage. Indeed, in an email to his counsel, Houshidari, on September 23, 2010, he indicated the new mortgage principal as $186,968.00 as this reflected the payment of $25,000.00 which Belows had provided, and unpaid interest accruing on the previous debt.

[74] The terms of the new mortgage were only provided by Pierce to Belows in January, 2011.

[75] In the absence of an agreement on a new mortgage, it remained open for Belows to decline to execute the mortgage documents, as she did after receiving them in 2011, just as it also remained open to Pierce to take legal action to compel payment on the outstanding, unsecured promissory notes, as he threatened to do in 2012.

[76] By agreeing to the discharge of the 2004 mortgage without an agreement to the terms of a new mortgage, and by declining to pursue legal remedies on the promissory notes until 2018, Pierce now lacks a basis in equity on which to enforce recovery.

[77] As I have found no equitable obligations which have been breached, I do not need to canvass the application of the doctrine of laches in this context.

The 2015 Loan

[78] There is one further debt to address.

[79] In the midst of the apparent dispute about the 2010 arrangements, Pierce made a further, unsecured loan to Belows in January 2015 for $12,000.00 at 4% interest. This loan also remains outstanding.

[80] Pierce made his demand under this promissory note in June, 2017, and thus this claim falls within the two-year limitation period and is not statute-barred.

[81] In her factum, Ms. Belows does not contest an obligation to repay this debt.

Conclusion

[82] For the reasons set out above, Pierce is not entitled to an equitable mortgage or lien with respect to Belows’ home, and is not entitled to the other grounds of recovery in unjust enrichment, a constructive or resulting trust, or promissory estoppel.

[83] Consequently, the ten-year limitation period set out in the Real Property Limitations Act does not apply in this case.

[84] Pierce is left with a claim over the outstanding promissory notes, but these are clearly statute barred under the Limitations Act, 2002, apart from the 2015 loan of $12,000.00.

[85] Therefore, I grant Belows’ motion for summary judgment and dismiss Pierce’s claim as statute-barred, apart from the claim for the 2015 loan of $12,000.00.

Costs

[86] I encourage the parties to agree on the issue of costs. If they cannot, Belows may submit written submissions with a costs outline totaling no more than four pages by June 6, 2019. Pierce may submit the same by June 20, 2019. Below’s reply, if any, is to be submitted by June 27, 2019.

Sossin J. Released: May 16, 2019