Court File and Parties
Court File No.: CV-16-0541-00 Date: 2019-06-19 Ontario Superior Court of Justice
Between: Christiana Tettey-Fio, Plaintiff – and – Pearl Nyamsekpor, Defendant
Before: Stribopoulos J.
Counsel: Ms. Christiana Tettey-Fio, Self-Represented Mr. Tyler Inkster, for the Defendant
Heard: March 26, 27, 28, 29, May 2, 3, 2019
Reasons for Judgment
STRIBOPOULOS J:
Introduction
[1] A dispute between a mother and daughter involving the ownership of two residential properties has entirely fractured their relationship and culminated in this litigation. In this action, the mother, Ms. Tettey-Fio, is the plaintiff. The daughter, Ms. Nyamsekpor, is the defendant.
[2] The parties hold title together to two residential properties. The first, a house at 39 Kalahari Road in the City of Brampton, was purchased in July 2000. The transfer deed did not specify the nature of their co-ownership. As a result, by operation of law, they hold title to that property as tenants in common: Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, s. 13(1). The second, a condominium at 1709 – 61 Markbrook Lane in the City of Toronto, was purchased in June 2005. The pair took title to that property as joint tenants.
[3] In this action, Ms. Tettey-Fio seeks a declaration that she is the sole owner of the Kalahari property. Alternatively, she asks that Ms. Nyamsekpor’s interest in the home be reduced to reflect Ms. Tettey-Fio’s disproportionate contributions towards that property. The plaintiff, who is self-represented, is essentially advancing a claim of unjust enrichment and seeking to subject the defendant’s legal interest in the Kalahari property to a constructive trust.
[4] In contrast, Ms. Nyamsekpor denies that there is anything unconscionable about her holding an equal interest in the Kalahari property. She claims they purchased that property jointly, subject to an agreement to sell it after three years with the proceeds to be shared equally. Ms. Nyamsekpor maintains that it was only in the aftermath of Ms. Tettey-Fio breaching that agreement that the two women purchased the Markbrook condominium. Ms. Nyamsekpor insists this second purchase was the result of an unhappy compromise. According to Ms. Nyamsekpor, she has contributed her fair share towards the Kalahari property, given how the parties agreed to divide expenses between both properties.
[5] There were only two witnesses at trial, the plaintiff and the defendant. They offered sharply differing accounts regarding the circumstances under which they purchased the two properties and how they agreed to deal with them. Whatever the arrangement, it was never written down. Beyond their testimony, each party has attempted to support their respective accounts with various documents that became exhibits at trial. Unfortunately, because the events that were the focus of this trial spanned nineteen years, the documentary evidence is far from comprehensive.
[6] Given the differing accounts offered by the parties, the outcome of this action ultimately turns on a question of credibility. These reasons will, therefore, proceed in two main parts. First, I will briefly summarize the parties’ respective accounts. I will then analyze the evidence to explain which party’s account the court ultimately prefers.
I. The Differing Accounts of the Parties
(a) Ms. Tettey-Fio’s Account
[7] Ms. Tettey-Fio acknowledges that when the Kalahari property was purchased, she intended to take title to it equally with Ms. Nyamsekpor. Despite this, she maintains that the two women never intended to deal with the property as co-owners. Rather, Ms. Tettey-Fio testified that she placed her daughter’s name on the title as a form of estate planning. She explained that she did this as a precaution so that if anything ever happened to her, Ms. Nyamsekpor would deal with the house for the benefit of the rest of the family. This plan, Ms. Tettey-Fio testified, resulted from a lack of legal knowledge and the influence of cultural norms and expectations relating to the role of the eldest child in Ghana, from where she originates.
[8] Concerning the Markbrook condominium, Ms. Tettey-Fio testified that she only reluctantly agreed to go on the title when it was purchased. According to her, she did so at Ms. Nyamsekpor’s insistence so that her daughter could secure financing. Although Ms. Tettey-Fio acknowledges contributing $6,255.80 towards the purchase of the Markbrook condominium, she maintains doing so very reluctantly. She testified that it was only at the signing of the papers to finalize the transaction that she learned she was expected to contribute to the purchase of the condominium. On her account, she only provided these funds to avoid the embarrassment of making a scene at the lawyer’s office.
[9] Given this, Ms. Tettey-Fio testified that she never expected to be treated like a co-owner of the Markbrook condominium. Instead, she insists the Markbrook condominium was always meant to be Ms. Nyamsekpor’s alone. According to Ms. Tettey-Fio, this is why she has never contributed towards any of the expenses associated with the Markbrook condominium.
[10] Ms. Tettey-Fio testified that beyond an initial loan of $13,000 to assist with the purchase of the Kalahari property, Ms. Nyamsekpor has never made any financial contributions towards that property. She denies needing her daughter’s help to purchase the house because of her poor credit at the time. Rather, she testified that Ms. Nyamsekpor provided her with a loan, nothing more. Further, Ms. Tettey-Fio claims the loan was repaid in full in 2004 with the first refinancing of the Kalahari property.
[11] Since the purchase of the Kalahari property, Ms. Tettey-Fio testified that she alone has been responsible for making the mortgage payments, paying the property taxes, covering the cost of home maintenance and paying the utility bills. According to Ms. Tettey-Fio, the only exception was a period from 2008 to 2013 when she was living and working in the Northwest Territories. During that period, she described giving Ms. Nyamsekpor permission to live at the Kalahari property provided that she paid the utility bills. Even then, Ms. Tettey-Fio maintains, Ms. Nyamsekpor failed to keep the utility accounts in good standing.
[12] Ms. Tettey-Fio testified that while in the Northwest Territories, she was periodically required to send money to Ms. Nyamsekpor to help pay the utility bills at the Kalahari property. Ms. Tettey-Fio pointed to some specific entries in banking records that she produced to support this claim. She also produced six duplicate copies of cheques from this period, drawn from her bank account, three payable to Enbridge Gas, and three payable to Rogers. These appear to be related to expenses for the Kalahari property.
(b) Ms. Nyamsekpor’s Account
[13] In her testimony, Ms. Nyamsekpor described the circumstances surrounding the purchase of the Kalahari property very differently. On her account, in early 2000, when she was just twenty-three years old, she decided she wanted to move out of the family’s rented home and purchase a residence of her own. Despite her relative youth, Ms. Nyamsekpor had amassed $13,000 in savings in a Registered Retirement Savings Plan. She testified to wanting to take advantage of a program available at that time that allowed her to use her RRSP savings towards the purchase of a home.
[14] Ms. Nyamsekpor testified that she shared her plans with her parents out of respect for them. According to Ms. Nyamsekpor, although Ms. Tettey-Fio was initially pleased by her daughter’s initiative, she soon began cajoling her into purchasing a property together. Ms. Nyamsekpor testified to reluctantly agreeing to her mother’s proposal because it included a promise that they would sell the Kalahari property after three years and then split the proceeds from the sale.
[15] Ms. Nyamsekpor testified that she agreed to Ms. Tettey-Fio’s proposal because her mother convinced her that it would be best for the entire family. It would enable Ms. Tettey-Fio to own a home, where the rest of the family could also live while permitting Ms. Nyamsekpor to accumulate some additional equity towards realizing her ultimate goal of owning a home of her own. In short, her mother made a persuasive case that Ms. Nyamsekpor should defer her own plans in favour of a joint venture that would benefit the entire family.
[16] Ms. Nyamsekpor maintains that her mother would have been unable to purchase the Kalahari property on her own. She testified that Ms. Tettey-Fio had poor credit during this period because she defaulted on a vehicle lease resulting in the repossession of her car. Ms. Nyamsekpor cites her mother’s poor credit as the only reason why a second mortgage, on less than favourable terms, was necessary to finalize the purchase of the Kalahari property. She also cites the added costs associated with her mother’s poor credit as the reason why her mother made a slightly greater contribution towards the purchase of the home at the time of closing.
[17] According to their agreement, Ms. Nyamsekpor testified that the Kalahari property was to be sold after three years. She claims that when the time came to sell the house, her mother told her she wanted to keep it. Ms. Tettey-Fio had grown to love the house and did not want to part with it. According to Ms. Nyamsekpor, she felt powerless to redress her mother’s refusal to honour their agreement and did nothing to force the sale at that time.
[18] Given her continued interest in purchasing her own home, Ms. Nyamsekpor testified that in 2005, she decided to buy the Markbrook condominium. Unfortunately, given her existing obligation towards the Kalahari mortgage, she was unable to obtain financing on her own. As a result, it became necessary for the two women to also purchase the condominium together. Otherwise, Ms. Nyamsekpor would not have qualified for financing.
[19] Ms. Nyamsekpor insists that she made contributions towards the Kalahari property. In the years before the purchase of the Markbrook condominium, she testified to making regular payments towards the mortgage. During this period, her mother contributed to the mortgage and was also responsible for the property taxes. Other family members living in the home made contributions to various household expenses, including the cost of utilities. Ms. Nyamsekpor furnished some banking records to support her claim that she contributed to the mortgage at the Kalahari property until the purchase of the Markbrook condominium.
[20] According to Ms. Nyamsekpor, after the purchase of the Markbrook condominium, to simplify their finances, the two women agreed on a new arrangement. Ms. Tettey-Fio assumed responsibility for the expenses associated with the Kalahari property, while Ms. Nyamsekpor assumed responsibility for the expenses associated with the Markbrook condominium. The expenses associated with the house exceeded those related to the condominium.
[21] Nevertheless, Ms. Nyamsekpor maintains that this represented an equitable sharing of the expenses associated with the two properties. Although the expenses associated with Kalahari property exceeded those for the Markbrook condominium, during this period, Ms. Tettey-Fio was also receiving contributions from other family members living at the Kalahari property. Given this, Ms. Nyamsekpor testified that this made for a fair division of the expenses.
[22] Ms. Nyamsekpor denies failing to pay the utility bills while living at the Kalahari property during the period when her mother was working in the Northwest Territories. During her testimony, Ms. Nyamsekpor produced some e-mails that she claims her mother sent her during that time frame. These e-mails correspond with the e-transfer of funds that Ms. Tettey-Fio testified related to unpaid utility bills at the Kalahari property but provide a different explanation.
[23] Ms. Tettey-Fio appeared to be asking Ms. Nyamsekpor to use the funds forwarded for purposes entirely unrelated to the Kalahari property. For example, to send money to extended family in Ghana, to pay various expenses for other family members in southern Ontario, and to replenish Ms. Tettey-Fio’s long distance account.
[24] During cross-examination, Ms. Nyamsekpor acknowledged copies of six cheques written by Ms. Tettey-Fio which suggested that Ms. Tettey-Fio had paid at least some of the utility bills at the Kalahari property during the period when she was living in the Northwest Territories. These included three payments to Enbridge Gas and three payments to Rogers.
(c) A Turning Point in the Relationship
[25] The relationship between the parties changed drastically in the aftermath of Christmas Day, 2011. In early 2011, Ms. Tettey-Fio had separated from her husband, Wisdom, Ms. Nyamsekpor’s father. After the separation, Wisdom Nyamsekpor returned to southern Ontario from the Northwest Territories.
[26] That Christmas, Ms. Tettey-Fio travelled from the Northwest Territories without forewarning to the rest of the family. On Christmas Day she arrived unannounced at the Kalahari property. Ms. Tettey-Fio was upset to find her estranged husband at the house. She wanted him to leave while Ms. Nyamsekpor wanted him to stay. The disagreement became heated, and the police attended. To deescalate the situation, the police asked Mr. Nyamsekpor to leave.
[27] Not surprisingly, this ruined Christmas Day. In its aftermath, the relationship between Ms. Tettey-Fio and Ms. Nyamsekpor was also ruined. Since then, the two women have been estranged, with their joint ownership of the two properties being a recurring source of tension between them.
[28] The apparent spark for this litigation was Ms. Nyamsekpor’s continued refusal to sign documents to facilitate the refinancing of the Kalahari property. Ms. Nyamsekpor does not want to refinance the Kalahari property; she wants both properties sold so that she can extract her share of the equity from each and finally purchase a property on her own. In contrast, Ms. Tettey-Fio effectively wants their joint ownership of the two properties severed; with her taking exclusive ownership of the Kalahari property, and Ms. Nyamsekpor retaining the Markbrook condominium.
II. Analysis and Findings
[29] This court is very much impressed by both Ms. Tettey-Fio and Ms. Nyamsekpor. It is apparent that they share a great many positive character traits. Each is bright, articulate, and extremely hard-working. If the circumstances were different, they would undoubtedly be very proud of one another. It is most unfortunate to see two people who clearly love each other, and who once enjoyed considerable goodwill towards one another, pushed even further apart by an adversarial process that by its very nature requires this court to choose between them.
[30] Nevertheless, deciding this action requires a careful assessment of the competing accounts of these two impressive women so that the court can decide as between them who is the more credible witness. In the balance of these reasons, I will analyze the conflicting accounts of each party regarding the relevant events to explain the court’s ultimate decision in this action.
(a) Demeanour and its limits
[31] I begin with how each of the parties testified. By that measure, as between Ms. Tettey-Fio and Ms. Nyamsekpor, the latter was unquestionably the better witness.
[32] Ms. Nyamsekpor was both thoughtful and careful in her answers. Her responses to the questions were measured. She appeared to make a genuine effort to honestly answer the questions posed while being careful to acknowledge her inability to remember certain events, even when remembering would have been to her benefit. Ms. Nyamsekpor did not appear to overreach in her responses. Tellingly, she had a great many good things to say about Ms. Tettey-Fio. In short, Ms. Nyamsekpor appeared to be committed to recounting the events honestly without concern for the strategic implications for her case.
[33] That said, there were times during cross-examination when Ms. Nyamsekpor seemed to lose her patience. At these points, her animosity towards Ms. Tettey-Fio became evident. In fairness to Ms. Nyamsekpor, these moments came when the questioning struck her as unduly repetitive, which at some points it was. On the whole, however, Ms. Nyamsekpor made a very favourable impression as a witness.
[34] In contrast, at times, Ms. Tettey-Fio proved to be a combative witness. Her responses were sometimes evasive. It was apparent that many of her answers were the result of a deliberative process, in which she appeared to be contemplating the strategic implications of her responses. Tellingly, she was reluctant to concede any ground that might serve to cast Ms. Nyamsekpor in a positive light. In short, Ms. Tettey-Fio was not a measured and careful witness.
[35] In assessing credibility, a trier of fact is entitled to consider the demeanour of a witness as they testify, provided it is not given undue weight: R. v. Ahmaddy, 2018 ONCA 496, at para. 6; R. v. Santhosh, 2016 ONCA 731, at para. 19. Demeanour is but one relevant consideration in assessing credibility; it should never take precedence over careful consideration of the substance of a witness’s evidence: R. v. S.H.P.-P., 2003 NSCA 53, at paras. 28-30; R. v. T.D.A., 2017 ONCA 910, at para. 20; R. v. Marchesan, 2017 ONCA 355, at para. 17. Even discounting demeanour, when it comes to the substance of the evidence of both Ms. Tettey-Fio and Ms. Nyamsekpor, the court again prefers the testimony of Ms. Nyamsekpor.
[36] The balance of these reasons will explain why the court ultimately accepts Ms. Nyamsekpor’s testimony. In short, Ms. Nyamsekpor’s account provides a far more logical and coherent explanation of the relevant events. It also best accords with the available documentary evidence.
(b) The purchase and financing of the Kalahari Property
[37] Ms. Tettey-Fio claims that Ms. Nyamsekpor’s role in the purchase of the Kalahari property was simply that of a lender. The main difficulty with this characterization of Ms. Nyamsekpor’s role is that it is inconsistent with the weight of the available evidence in this case.
[38] First, Ms. Tettey-Fio acknowledges that the idea of purchasing a property originated with Ms. Nyamsekpor. She also acknowledges that the decision to take title to the Kalahari property in both their names was deliberate. Although she maintains that estate planning was the reason for this, she concedes never telling anyone that this was her intention. Finally, Ms. Tettey-Fio testified that this loan never had any agreed upon terms, neither concerning the interest payable nor its duration.
[39] In evaluating Ms. Tettey-Fio’s claim that the funds provided by Ms. Nyamsekpor to purchase the Kalahari property represented a loan, it is important to remember the source of this money. It came from Ms. Nyamsekpor’s RRSP account. As such, she would likely have been earning a return on this investment. One is hard pressed to understand why after originating the idea of buying a house, Ms. Nyamsekpor would then forego doing so, close out her RRSP account, lend those funds to her mother to buy a house without her, all without the benefit of any agreement regarding the terms of this loan.
[40] Second, Ms. Tettey-Fio’s testimony that she placed title to the Kalahari property in both their names only for estate planning purposes also makes little sense. In support of this claim, Ms. Tettey-Fio testified that her thinking resulted from cultural practices in Ghana, as well as a lack of legal knowledge at the time regarding the availability of other estate planning options. It is difficult to reconcile this evidence with Ms. Tettey-Fio’s apparent degree of sophistication and her other actions during this same period.
[41] By the time the Kalahari property was purchased, Ms. Tettey-Fio had been in Canada for twelve years. Since her arrival, and before purchasing the Kalahari property, she had completed two university degrees in social work. In 2000, she was a caseworker with the Peel Children’s Aid Society. Further, before finalizing the purchase of the Kalahari property, Ms. Tettey-Fio, no doubt sensing that there were difficulties in her marriage, had her husband execute a document renouncing any claim to the property. These facts are inconsistent with Ms. Tettey-Fio lacking legal sophistication. Given this, her claim that she did not appreciate that she could implement an estate plan by executing a will is less than credible.
[42] There was a fair amount of testimony at trial regarding the reason why a second mortgage was required to purchase the Kalahari property. Although the parties agreed that they required a second mortgage to purchase the property because they were unable to secure the required financing through a first mortgage alone, they differed sharply on the reason for this.
[43] According to Ms. Tettey-Fio, the second mortgage was necessary given their respective incomes. In short, they did not earn enough to obtain the financing they required through a first mortgage. Ms. Tettey-Fio testified that it was her preference to purchase a more modest home that she could afford. She maintained that it was Ms. Nyamsekpor who insisted on purchasing the Kalahari property, as she wanted a larger house comparable to that owned by her then boyfriend’s parents. This explanation does not accord with common sense. If Ms. Nyamsekpor was truly providing only a loan to help facilitate the purchase, even crediting a parent’s desire to please their child, I find it difficult to accept that this would lead Ms. Tettey-Fio to purchase a home she could not afford.
[44] In contrast, Ms. Nyamsekpor testified that the need for a second mortgage resulted from Ms. Tettey-Fio having poor credit at that time due to her defaulting on a leasing agreement and having her vehicle repossessed. As a result, they did not qualify for a first mortgage large enough to facilitate the home purchase. It was this, Ms. Nyamsekpor testified, that necessitated a second mortgage on less than favourable terms. Ms. Nyamsekpor cited the fees associated with the second mortgage, as well as added costs caused by the lawyer her mother insisted on using to close the deal, as the reason why, as between them, her mother made a slightly larger contribution on the closing of the Kalahari property.
[45] In her testimony, Ms. Tettey-Fio categorically denied having poor credit when they purchased the Kalahari property or that this was the reason why they required a second mortgage to facilitate the purchase. Although Ms. Tettey-Fio acknowledged that in the period preceding the home purchase she stopped making payments on a vehicle she had been leasing, she strongly resisted the suggestion that the vehicle had been “repossessed” as a consequence. Rather, she maintained that in the fourth year of a five-year lease term, she told the leasing company she was no longer happy with the vehicle and wanted to return it. She then made arrangements for the leasing company to take the vehicle back. In her view, this was not a “repossession.” Ms. Tettey-Fio insisted that this did not have any negative impact on her credit rating.
[46] In my view, Ms. Tettey-Fio’s claim that the return of her leased vehicle had no impact on her credit-rating is less than credible. Leases are contracts. Someone who leases a vehicle is contractually obligated to make payments under the terms of the leasing agreement. Although a lessee who is unhappy with a vehicle may have a variety of available options, unilateral withdrawal from the agreement by not making payments is not one of them. In light of this, Ms. Tettey-Fio’s evidence that her credit was not adversely impacted by her defaulting on the leasing agreement defies common sense.
[47] Ultimately, Ms. Nyamsekpor’s evidence regarding the circumstances surrounding the closing on the Kalahari property, including her explanation for the second mortgage and Ms. Tettey-Fio’s slightly larger contribution on closing, is the far more credible account of these events.
(c) The Refinancing of the Kalahari Property in 2004 and 2009
[48] On each refinancing, the proceeds were shared almost equally between Ms. Nyamsekpor and Ms. Tettey-Fio. The near equal division of the proceeds from each refinancing is far more in keeping with the two women behaving as though they were true co-owners of the Kalahari property. This is consistent with Ms. Nyamsekpor’s evidence, and at odds with Ms. Tettey-Fio’s claim that her daughter simply loaned her money to help with the purchase.
[49] That said, I recognize it is possible to reconcile the distribution of the proceeds from the 2004 refinancing with Ms. Tettey-Fio’s evidence. On her telling, this is when she repaid the loan from Ms. Nyamsekpor. However, it is not possible to square the distribution of the proceeds from the second refinancing of the home in 2009 with Ms. Tettey-Fio’s version of events.
[50] If Ms. Nyamsekpor was not a true co-owner, it is difficult to understand why she once again took an almost equal share of the proceeds from the 2009 refinancing. By that point, if Ms. Nyamsekpor had only loaned money towards the original home purchase, as Ms. Tettey-Fio claims, the loan was fully repaid long before the second refinancing. The documentary evidence (the lawyer’s reporting letter and trust statement) from the 2009 refinancing make clear that the lender required both owners, Ms. Tettey-Fio and Ms. Nyamsekpor, to discharge their existing debts as a precondition to refinancing. On Ms. Tettey-Fio’s evidence, this would mean that she paid off substantial debts that Ms. Nyamsekpor owed at the time.
[51] It is difficult to believe that Ms. Tettey-Fio agreed to pay Ms. Nyamsekpor’s debts in 2009 without taking any steps to memorialize this. In that regard, I note that in 2006, when Ms. Tettey-Fio loaned money to Ms. Nyamsekpor’s then partner, she secured a promissory note from him detailing the terms of that loan. Similarly, in late 2008, when she loaned money to her son, Ms. Tettey-Fio also required him to execute an “I owe you” documenting his debt. These two debt instruments were both exhibits at trial. Each of these debts was for a relatively paltry sum when compared to the amount of debt that Ms. Tettey-Fio would have been paying off for Ms. Nyamsekpor on the second refinancing.
[52] It seems rather improbable that Ms. Tettey-Fio would pay off substantial debts for Ms. Nyamsekpor from the proceeds of the 2009 refinancing without also taking steps to document this. In short, this would be entirely inconsistent with her approach towards lending money during this same period.
[53] In summary, the distribution of the proceeds from each of the two refinancings is entirely consistent with Ms. Nyamsekpor’s evidence that the two women intended to deal with that property as co-owners, and directly at odds with Ms. Tettey-Fio’s claim to the contrary.
(d) Circumstances surrounding the purchase of the Markbrook condominium
[54] I also have considerable difficulty with Ms. Tettey-Fio’s account of how it is that she came to be a co-owner of the Markbrook condominium. Recall that Ms. Tettey-Fio testified that she was misled by Ms. Nyamsekpor to believe that she was being summoned to the lawyer’s office before the closing on the condominium merely to sign papers as a guarantor for the mortgage. She denied having any advance knowledge that she would be taking title as a co-owner or that she would be required to contribute towards the purchase.
[55] Ms. Tettey-Fio testified that while at the lawyer’s office, to sign the documents, the fact that she would be going on title was sprung on her, and she was required to make an on the spot contribution of $6,255.80 towards the purchase. She testified to doing so reluctantly after Ms. Nyamsekpor pleaded with her to provide the money and promised to pay it back. There are several reasons why I have difficulty accepting Ms. Tettey-Fio’s evidence regarding these events.
[56] First, there are Ms. Tettey-Fio’s finances during this period. Her state of liquidity the year before, at the time of the first refinancing of the Kalahari property, and a few years later, at the time of the second refinancing, suggests that she is someone who routinely carries a fair amount of credit-card debt. In light of that, I find it rather difficult to accept that she would have $6,255.80 sitting at the ready in her bank account without any prior preparation or planning.
[57] Second, based on her conduct during this trial, I also find it very difficult to believe that Ms. Tettey-Fio would be pressured into spending $6,255.80 to avoid the embarrassment of making a scene at a lawyer’s office. Throughout the trial, Ms. Tettey-Fio demonstrated that she is not a reticent person. The idea that anyone could cajole her into doing something that she did not want to do is hard to imagine.
[58] Third, on the closing of the condominium, Ms. Nyamsekpor and Ms. Tettey-Fio were represented by experienced counsel from a well-established law firm. This is not the sort of environment in which one would expect someone like Ms. Tettey-Fio to be pressured into making a large, and last-minute, financial contribution towards the purchase of a condominium.
[59] Finally, if Ms. Tettey-Fio contributed to the purchase of the condominium in the circumstances she described, this would mean that she was loaning Ms. Nyamsekpor a significant amount of money. Given Ms. Tettey-Fio’s demonstrated pattern of documenting the loans she makes, even to family members, the absence of anything memorializing this arrangement also seems telling.
[60] For all of these reasons, I do not find Ms. Tettey-Fio’s account regarding the circumstances under which she came to be a co-owner of the Markbrook condominium to be credible.
[61] In contrast, Ms. Nyamsekpor’s description of how she and Ms. Tettey-Fio came to be co-owners of the condominium impresses me as the far more logical and credible account.
(e) Specific Inconsistencies in Ms. Tettey-Fio’s Evidence
[62] Beyond the rather significant internal inconsistencies in Ms. Tettey-Fio’s account of the relevant events detailed above, her evidence also suffers from two discrete external inconsistencies that do not reflect positively on her credibility as a witness in this case.
[63] First, Ms. Tettey-Fio denied that in the lead up to the purchase of the Kalahari property she would have required Ms. Nyamsekpor’s assistance to purchase a property but for the fact that Ms. Nyamsekpor insisted that she buy a home that she could not afford on her own. Recall that she denied having poor credit. Further, when asked during cross-examination how much she was earning on an annual basis before the purchase of the Kalahari property, Ms. Tettey-Fio testified to making approximately $97,000 per year.
[64] However, in the original mortgage application completed to obtain financing for the Kalahari property, Ms. Tettey-Fio appears to have reported her annual income as being $66,000. When confronted with this apparent inconsistency, instead of admitting her error, Ms. Tettey-Fio maintained that she was earning more than was reflected in the application. In the end, Ms. Tettey-Fio struggled to provide a plausible explanation for why she would have underreported her income when applying for a mortgage.
[65] Second, Ms. Tettey-Fio testified that while she was living in the Northwest Territories, Ms. Nyamsekpor was living at the Kalahari residence. According to Ms. Tettey-Fio, although she continued paying the mortgage for the property during this period, it was agreed that Ms. Nyamsekpor would pay for the utilities. Even then, she testified to routinely being required to pay the utility bills because Ms. Nyamsekpor could not afford to do so.
[66] In support of this claim, Ms. Tettey-Fio testified regarding four specific entries contained in banking records that she produced from March, April and June 2011. These entries reflect e-transfers from Ms. Tettey-Fio to Ms. Nyamsekpor, including on March 17, 2011, for $250, on April 21, 2011, for $500, on April 28, 2011 for $800, and on June 16, 2011, for $1,000. This documentary evidence appeared to support Ms. Tettey-Fio’s claim that despite their agreement at the time, Ms. Nyamsekpor was not paying the utility bills while she was living at the Kalahari property.
[67] During cross-examination, however, Ms. Tettey-Fio was confronted with three e-mails sent by her to Ms. Nyamsekpor that corresponded with three of these e-transfers. In each e-mail, Ms. Tettey-Fio tells Ms. Nyamsekpor about the e-transfer and gives her specific directions on how to use these funds. With each, Ms. Tettey-Fio asks Ms. Nyamsekpor to carry out various financial errands on her behalf. Contrary to her direct testimony regarding the purpose of these e-transfers, none of these e-mails include instructions to Ms. Nyamsekpor to use the funds to pay utility bills at the Kalahari property.
[68] Although when confronted with the first two e-mails, from March 17, 2011, and April 21, 2011, Ms. Tettey-Fio acknowledged sending them and also agreed that they made no reference to the funds being sent to cover the cost of utilities, when the third e-mail, from April 28, 2011, was shown to her, Ms. Tettey-Fio denied knowing anything about it. She then quickly retreated from her earlier testimony and questioned the authenticity of all of the e-mails.
[69] To be sure, I accept that while she was in the Northwest Territories, Ms. Tettey-Fio did sometimes contribute towards paying the utility bills at the Kalahari property. Six copies of duplicate cheques drawn from Ms. Tettey-Fio’s bank account introduced as exhibits at trial strongly support this claim.
[70] Nevertheless, Ms. Tettey-Fio’s inability to acknowledge that she mischaracterized certain e-transfers sent to Ms. Nyamsekpor as being unrelated to paying utility bills, and her complete about-face regarding the authenticity of the e-mails that revealed her error, do not reflect positively on her credibility as a witness more generally.
(f) Conclusions Regarding Credibility
[71] For all of these reasons, as between the starkly conflicting accounts of each party, I prefer the evidence of Ms. Nyamsekpor. Based on the entirety of the evidence, Ms. Nyamsekpor impressed me as the more credible witness. Importantly, her account of the relevant events held together as a matter of logic and common sense.
[72] Concerning the key issues in this action, including the intention of the parties when the properties were purchased, the reason why they took the title in both their names and the arrangements between them regarding how expenses for the properties were shared, I believe Ms. Nyamsekpor.
Conclusion
[73] For all of these reasons, the plaintiff has failed to discharge her burden in this action. The Court ultimately prefers the defendant’s account of the relevant events. On the defendant’s evidence, none of the three essential preconditions for finding an unjust enrichment have been established: see Moore v. Sweet, 2018 SCC 52, at para. 37.
[74] In short, the plaintiff has failed to satisfy the court that that defendant has been enriched at her expense. Rather, the evidence at trial satisfies me that the division of expenses between the parties for the two properties was fair and equitable. With the passage of time, both properties have appreciated substantially in value. Each of the parties has benefitted equally from that increase.
[75] Finally, even assuming some slight disparity as between how much each has contributed towards the two properties over the years, there are two further obstacles to the plaintiff’s success. First, there is no reliable record from which the court can make a finding as to who has made a larger contribution and by how much, as compared to the increase in the value of both properties that has been enjoyed equally by both parties. Second, the division of expenses, even assuming some disparity as between the amounts contributed by each party, was the direct result of an agreement between the parties. Hence, even if a difference in the parties’ respective contributions could be reliably established, there is a clear juristic reason for it; the agreement between them regarding how the expenses for both properties were to be divided.
[76] Accordingly, for all of these reasons this action is dismissed.
[77] In the circumstances, had the defendant brought a counterclaim for the sale of the two properties under the Partition Act, R.S.O. 1990, c. P.4, s. 3(1), the court would have been inclined to grant such relief and to order an equal division of the equity in the two properties as between the parties. However, the defendant has not brought a counterclaim. Of course, there is nothing precluding either party from bringing an application to seek such relief in future.
[78] If costs are in issue, the plaintiff should serve and file written costs submissions, no longer than three pages in length, not inclusive of a Bill of Costs, by no later than July 19, 2019. The defendant may file any responding submissions, also not to exceed three pages in length, by no later than August 2, 2019. Reply submissions are not to be filed unless requested by the court.