Court File and Parties
COURT FILE NO.: CV-18-0590-000 DATE: 2019-12-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Yvan Gauthier, Plaintiff
- and - John Harold White, Defendant
COUNSEL: J. Lester, for the Plaintiff M. Cupello, for the Defendant
HEARD: November 21, 2019 at Thunder Bay, Ontario
BEFORE: Mr. Justice D. C. Shaw
Reasons on Motion
1The defendant, plaintiff by counterclaim, John Harold White, brings a motion for leave to issue a writ of possession under Rule 60.10 regarding the land and premises at 11348 Highway 11, Longlac, Ontario, (“the property”).
2In the alternative, Mr. White seeks an interim order for the preservation and custody of the property pursuant to Rule 45.01.
3Mr. White is the registered owner of title to the property.
4In 2017, Mr. White and the plaintiff, defendant by counterclaim, Yvan Gauthier, entered into an oral agreement that Mr. Gauthier would purchase the property.
5Between October and December, 2017, Mr. Gauthier paid Mr. White $40,000 in four installments.
6Notations on the receipts signed by Mr. White for the four installments indicate that the purchase price was $40,000. Mr. White claims that these notations were not on the receipts when he signed them.
7In order to formalize the sale of the property, Mr. White and Mr. Gauthier entered into a written Agreement of Purchase and Sale on May 4, 2018. The purchase price was stated to be $40,000, with a closing date of May 31, 2018 and a condition that Mr. White would be allowed to store scrap metal on the property until November 1, 2019.
8In anticipation of the closing, Mr. White and Mr. Gauthier agreed that Mr. Gauthier could move onto the property. Mr. Gauthier is in occupation of the property.
9As the matter progressed toward the closing date, a dispute arose as to the purchase price. Mr. Gauthier asserted that the purchase price was $40,000 which he had already paid to Mr. White. Mr. White asserted that the purchase price was $80,000 and that the $40,000 set out in the written Agreement of Purchase and Sale reflected the unpaid portion of the purchase price of $80,000.
10Mr. Gauthier brought an action for specific performance. He also asked for a declaration that title to the property rests with him, and claimed for damages for breach of contract and unjust enrichment.
11Mr. White defended the claim. In addition, he counterclaimed for a declaration that the Agreement of Purchase and Sale provided for a payment of $40,000 in addition to the $40,000 in cash that Mr. Gauthier paid to him. He also counterclaimed for damages for breach of contract and unlawful use and occupation of the property, and for a temporary order for possession, custody and preservation of the property.
Leave to issue a writ of possession
Rule 60.10 provides:
60.10 (1) A writ of possession (Form 60C) may be issued only with leave of the court, obtained on motion without notice or at the time an order entitling a party to possession is made.
(2) The court may grant leave to issue a writ of possession only where it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief.
(3) A writ of possession remains in force for one year from the date of the order authorizing its issue, and may, before its expiry, be renewed by order for a period of one year from each renewal.
12Rule 60 is a rule on the enforcement of orders. Orders are defined in rule 1.03 to include judgments. A writ of possession issued under rule 60.10 is one of the various methods of enforcement of orders.
13Rule 60.03 provides:
60.03 An order for the recovery or delivery of the possession of land may be enforced by a writ of possession (Form 60c) under rule 60.10.
14Form 60C reads as follows:
WRIT OF POSSESSION
To the Sheriff of the (name of county or district)
Under an order of this court made on (date) in favour of (name of party who obtained order),
YOU ARE DIRECTED to enter and take possession of the following land and premises in your county or district: ( Set out a description of the land and premises)
AND YOU ARE DIRECTED to give possession of the above land and premises without delay to ( name of party who obtained order).
Date…………………………………… Issued ………………………………
Local registrar
Address of
Court office ………………………………
15Rule 1.06 provides that the forms provided by the rules shall be used where applicable and with such variation as the circumstances require.
16It appears to me, based on the wording of rules 60.03 and 60.10, and of the prescribed form, Form 60C, that a writ of possession, at least in the circumstances of this case, should not be issued without an underlying order for possession. A writ of possession, itself, does not determine a right of possession. The purpose of the writ is to direct the Sheriff to enforce an order that, separately from the writ, has determined the right of possession.
17In Kinross Management Corporation v. Balfour (1981), 33 O.R. (2d) (H.C.). Krever, J. held that leave to issue a writ of possession should be refused when judgment for possession had not been obtained against a mortgagor, or against all of them, if more than one. In Community Trust Co. v. Pollock (1982), 36 C.P.C. 227 (Ont. H.C.), judgment against a non-title spouse in possession of a mortgaged home was required before a writ of possession could be issued, by reason of the rights conferred by s. 43 of the Family Law Reform Act.
18Mr. White submits that because he is the registered owner of title to the property, he is entitled to possession of the property, pending the outcome of the litigation, without the necessity of an order for possession.
19I do not agree with Mr. White’s submission.
20Mr. Gauthier came into possession of the property on the basis that both he and Mr. White anticipated that the sale of the property would close.
21If Mr. Gauthier’s position in the litigation proves to be correct, he has paid the purchase price in full and, in equity, he would be the beneficial owner. A distinction can be drawn between legal title to the property and the beneficial ownership of it, in cases where ownership is divided. A person may have title, but no right to possession. See Anger & Honsberger, Law of Real Property, loose leaf, Third Edition, (Toronto: Thomson Reuters), at 1-30.
22The respective right of each party to possession is an essential subject of this litigation. On the affidavit evidence before me, it cannot be concluded, without deciding the contested issue of whether the purchase price has been paid, which party will be entitled to possession at the end of the litigation.
23Therefore, with respect to the request for a writ of possession, I conclude that an order for possession is necessary before leave can be granted for a writ of possession. There is no order for possession. I also conclude, on the evidence before me, that Mr. White has not established that an interlocutory order for possession should be granted.
24There is evidence that Mr. Gauthier has incurred expenses of time and labour in the amount of approximately $60,000 in repairing and maintaining the home on the property. There is evidence that the home is Mr. Gauthier’s primary residence, although he may reside elsewhere temporarily from time to time.
25What Mr. White seeks is in the nature of an interlocutory injunction.
26Applying the test in RJR-MacDonald v. Canada, [1994] 1 S.C.R. 311:
There is a serious issue to be tried concerning whether Mr. Gauthier or Mr. White is entitled to possession.
Mr. Gauthier has incurred significant expense in repairing and maintaining the property. The property is his residence. He has paid $40,000 which, on the face of the receipt signed by Mr. White, was the purchase price. In my view, Mr. Gauthier would suffer irreparable harm if he was forced to vacate the property only to have it determined at trial that he was entitled to possession.
The balance of convenience favours Mr. Gauthier. Mr. White agreed that Mr. Gauthier could go into possession in contemplation of closing. After Mr. Gauthier went into possession, the home has been his residence for the past 1 ½ years.
Order for Preservation
27Rule 45.01(1) provides:
The court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party.
28In my view, Mr. White has not established that an order under rule 45.01 should be granted. The purpose of such an order is to ensure that property, real or personal, that is the subject matter of the dispute or relevant to an issue in the proceeding will be preserved and available for the trial. There is nothing in the evidence to suggest that the land and premises that Mr. White seeks to enter and take custody of might disappear, be damaged or be sold or otherwise be unavailable when the litigation is tried. Rather, Mr. White is seeking an order under rule 45.01 for reasons that have little or nothing to do with preservation of the premises. He seeks an order under rule 45.01(1) so that he can obtain possession of the premises for his own use.
29Mr. White submits that he should be put into possession pending trial because he has no other place to live as a result of issues that have arisen between him, as a tenant, and Mr. Gauthier, as a landlord, both in connection with a rental home and in connection with a dispute as to whether Mr. White or Mr. Gauthier is entitled to a trailer in which Mr. White was residing.
30Mr. White submits that Mr. Gauthier can reside elsewhere if he (Mr. White) obtains temporary possession of the land and premises in issue.
31Although Mr. White may well benefit by living in the premises pending trial, and Mr. Gauthier may have alternative accommodation available, it would be an error to use rule 45.01(1) for that purpose under the guise of a preservation order. Mr. White does not seek possession of the property under rule 45.01(1) in order to preserve the property.
Conclusion
32For the reasons given, Mr. White’s motion is dismissed.
Costs
33If the parties are unable to agree on costs, Mr. Gauthier shall make written submissions not exceeding three pages, exclusive of his Bill of Costs, within 20 days. Mr. White shall make written submissions, not exceeding three pages, exclusive of any Bill of Costs he may wish to submit for comparison purposes, within 10 days of receiving Mr. Gauthier’s submissions.
34If Mr. White submissions are not received within 20 days, the issue of costs shall be deemed to be settled.
“original signed by” The Honourable Justice D. C. Shaw
Released: December 17, 2019