Court File and Parties

COURT FILE NO.: 3374/17 DATE: 2020-03-02 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MYUNG ZA PARK, Plaintiff AND: LEONARD CARVALHO, ARLETE CARVALHO and HELGE CARVALHO, Defendants JENNIFER CHUN also known as JENNIFER RAHBECK, Third Party

BEFORE: Kurz J.

COUNSEL: Shahen A. Alexanian, for the Plaintiff Stephen R. Jackson, for the Defendants Steven Stauffer, for the Third Party

HEARD: February 18, 2020

Endorsement

[1] The Defendants bring this motion for summary judgment, seeking to dismiss the Plaintiff’s trust claim against them. The Third party supports the motion of the Defendants. For the reasons that follow, I grant summary judgment to the Defendants. I find that the Plaintiff has raised no genuine issue for trial. I find that I can resolve all issues raised in this action in the context of this motion and dismiss this action.

Background

[2] The plaintiff purchased a 46.5-acre parcel of property in Milton, Ontario (“the property”) in or about 1986. About six years later, on May 15, 1992, she transferred title to the property, without consideration, to herself and her minor daughter, Jennifer Chun (“Jennifer”) as joint tenants. Jennifer is the Third Party in this action. The Plaintiff pleads in her statement of claim and swears in her affidavit for this motion that the property was transferred “… with the intention that Jennifer’s interest would be held in trust” for her. She also swears that she did so to avoid her unnamed and unparticularized creditors.

[3] The late John H. Carvalho (“John”) was the father of the three Defendants. He owned a piece of land that was a neighbour of the property. On May 22, 1992 the Plaintiff sold a one third interest in the property to John. She pleads that she transferred that one-third share of the property to John “in consideration for [his] undertaking to pay the taxes and other carrying costs of the said property until its sale.” However the record shows that John actually paid the Plaintiff $150,000 for that one-third interest in the property. There is no evidence or argument that John paid anything but fair market value for the property. There is no independent evidence that he undertook to pay any of the Plaintiff’s share of the expenses of the property.

[4] Counsel for the Plaintiff did not dispute that the transfer was an arms-length one or that it was made for valid consideration. He conceded that John did not hold that 1/3 share of the property in trust for the Plaintiff and Jennifer. Jennifer asserts and the Plaintiff does not deny that she received none of this money and believes that her mother received all of it.

[5] On December 22, 1993, the Plaintiff and Jennifer transferred the remaining two-thirds interest in the property to John for $150,000. The Plaintiff swears says that she and Jennifer did this “… in order to protect the property from my potential creditors”. There is no question that the money was paid by John to the Plaintiff. It was paid by way of both direct payments and the payment of certain of her debts. There is no question that the money was paid.

[6] Nonetheless, the Plaintiff asserts in both her pleadings and affidavit that “[John] Carvalho agreed to hold the property in trust for Jennifer and I.” This bald assertion is the only evidence of the alleged agreement that John would pay $150,000 to the Plaintiff and Jennifer for the remaining two-thirds share of the property but nonetheless hold it in trust for the Plaintiff.

[7] For her part, Jennifer asserts two things about this transaction. First, she received none of the $150,000 purchase price. No party denies this. Second, Jennifer states that her one-third trust interest in the property was created to secure her financial future. She was 19 years old at the time and about to enter university.

[8] The Defendants assert that the December 22, 1993 transfer had two parts. First, John purchased a second one-third share of the property for the $150,000. Second, John and the Plaintiff agreed that he would hold the remaining one-third share in trust for Jennifer. They point to the facts that:

1. The $150,000 purchase price mirrors the price that John paid for the first third of the property. It makes sense that he was purchasing a second third of the property for the same price that he paid for the first third, one year earlier.

2. The trust for Jennifer was created on the date that the transaction closed. On that date, December 22, 1993, John signed a trust agreement with Jennifer (“the trust agreement”). Under the trust agreement, John agreed in writing to hold a one-third share of the property in trust for Jennifer.

3. In 2001, John transferred his full legal title to the property to himself and his three children, the Defendants, as joint tenants. He did so for nominal consideration. This transfer was effected for estate planning purposes.

4. John died on April 6, 2004. Approximately four months later, his son, the Defendant, Leonard Carvalho (“Leonard”), signed a document addressed to both the Plaintiff and Jennifer titled “Acknowledgment of Trust” (“the acknowledgment”). That document confirmed that the Defendants are John’s heirs and that they hold a one-third interest in the property in trust for Jennifer as per the trust agreement.

5. On November 12, 2006, the Defendants purchased one acre of Jennifer’s one-third share of the property for $37,500. All of the parties to this proceeding signed a written agreement for that purchase. The terms of that agreement state:

   I, Leonard Carvalho, Arlete Carvalho and Helga Carvalho agree to purchase one acre of land from Jennifer Chun’s one third interest in the above mentioned property

   And I Jennifer Chun agree to sell to Leonard Carvalho Arlete Carvalho and Helga Carvalho one acre of my one third interest in the above mentioned property.

   This one acre of land is from Jennifer Chun’s one third interest in the above mentioned property, which is held in trust for her by the registered owners of the property, Leonard Carvalho, Arlete Carvalho and Helga Carvalho.

6. As the agreement makes clear, the property was purchased from Jennifer alone. The payment of the purchase price was paid to Jennifer alone. Nothing in that agreement articulates the notion that the Plaintiff had a trust interest in the property. Far from objecting, the Plaintiff signed on to this transaction.

7. On April 28, 2011, the Defendants purchased another one acre parcel of the property from Jennifer’s share. The written agreement, also of that date, had virtually identical wording to that of the November 12, 2006 agreement. It too was signed by all of the parties to this litigation. The only differences between the two purchase agreements are the purchase price, which was $30,000 rather than $37,500 and this paragraph:

   I Jennifer Chun agree that this is the second time that I have sold one acre, and that my one third interest will now become one third interest less 2 acres, in the above mentioned property.

[9] The property (less a small portion that was transferred to the Region of Halton for road construction) was sold to Village Securities Limited, an arms length purchaser, for $8,700,000. The transaction closed on September 1, 2015. On September 13, 2015, the Defendants issued a cheque to Jennifer for $1,825,711. They also provided her with an accounting which set out the manner in which this after-tax figure was determined. Neither Jennifer nor the Plaintiff questions the propriety of the amount paid by the Defendants for Jennifer’s one-third share.

[10] However, after this closing, the Plaintiff sued her daughter, Jennifer (“the Jennifer lawsuit”). The Plaintiff sought a declaration that Jennifer held her trust interest in the property (13.5 acres) in trust for the Plaintiff. She also sought aggravated and punitive damages totalling $600,000.

[11] The Plaintiff pleaded a number of allegations in her statement of claim in the Jennifer lawsuit that she repeated in her statement of claim in this action. She pleaded that:

1. Her transfer of a joint interest in the property to Jennifer was made with the intention that Jennifer’s interest be held in trust for the Plaintiff. In her statement of claim in the Jennifer lawsuit, the Plaintiff also alleged that the transfer was not a gift to Jennifer. She removed that claim in her statement of claim in this action.

2. She transferred the first one-third share in the property to John “…in consideration for [John] undertaking to pay the taxes and other carrying costs for the property until sale.” She made no reference to John’s $150,000 payment for the one-third share of the property.

3. The transfer of the other two-thirds of the property was effected as both a sale and a trust. The Plaintiff pleaded in both actions:

   The Plaintiff states that on or around December 22, 1993, the Plaintiff and Jennifer sold the remaining interest in the said property to [John] for $150,000.00 in order to protect the property from the Plaintiff’s potential creditors. [John] agreed to hold the property in trust for the parties.

4. In or around November 2013 Jennifer acknowledged that she held 13.5 acres of the property in trust for the Plaintiff.

[12] The Jennifer lawsuit settled with the Plaintiff discontinuing the action and signing minutes of settlement. Among the terms of those minutes was the following acknowledgment:

I acknowledge that Jennifer is the sole beneficiary of the trust set out in the claim and I will not make any further claims against the trust set out in the claim.

[13] Nothing in the minutes of settlement of the Jennifer lawsuit called for Jennifer to make any payment to the Plaintiff.

Test Under Rule 20 and Issues for this Motion

Law Regarding Summary Judgment

[14] These motions are brought under r. 20.01 of the Rules of Civil Procedure. The terms of r. 20.04 are mandatory: the court shall grant summary judgment if it is satisfied that there is no genuine issue for trial with respect to a claim or defence (see also Hryniak v. Mauldin, 2014 SCC 7 (“Hryniak”) at para. 68 and Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429 (“Mega International”) at para. 83).

[15] The principles under which the court makes the determination of a genuine issue for trial are set out by the Supreme Court of Canada in paras. 44-45, 49-50 and 66 of Hryniak. The term "no genuine issue for trial" has been variously interpreted to reflect the notion that the responding party cannot possibly succeed, even if granted the right to a full trial. Among the terms that have been used to describe the test are the following:

a. "no chance of success"; or b. "plain and obvious that the action cannot succeed"; or c. "manifestly devoid of merit" (see Bedard v. Huard, [2000] O.J. No. 969 (S.C.J.), at para. 7, citing Iaboni et al v. Fowles-Brown, [2000] O.J. No. 479, (S.C.J.); or d. “the outcome is a foregone conclusion” (Catholic Children’s Aid Society of Toronto v. O. (L.M.), [1996] O.J. No. 3018 (O.C.(G.D.)), at para. 80); or e. No realistic possibility of an outcome other than that sought by the applicant (Children's Aid Society of Toronto v. S.D., [2016] O.J. No. 228 (O.C.J.), at paras. 9-10).

[16] There will be no genuine issue requiring a trial if the summary judgment process allows the court to reach a fair and just determination on the merits on a motion for summary judgment. That will be the case when the process (1) provides the court with the evidence required to fairly and justly adjudicate the dispute by making the necessary findings of fact, (2) allows the judge to apply the law to those facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. (See Hryniak at paras. 49 and 66).

[17] Each party to a motion for summary judgment has an obligation to “… ‘put its best foot forward’ with respect to the existence or non-existence of material facts that have to be tried” (Ramdial v. Davis (Litigation Guardian of), 2015 ONCA 726, [2015] O.J. No. 5630 (O.C.A.) at para. 27, citing Papaschase Indian Band No. 136 v. Canada (A.G.), 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11).

[18] The onus for proving that there is no genuine issue for trial rests with the moving party. However in response to the evidence of the moving party, the responding party may not rest on mere allegations or denials in the party’s pleadings. That party must set out in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. A self-serving affidavit is not sufficient to create a genuine issue for trial in the absence of detailed facts and supporting evidence. (see r. 20.01(2) and Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, at para. 31).

[19] In the oft-repeated maxim of Justice Coulter Osborne, then of the Ontario Court of Appeal, the responding party to a motion for summary judgment must “lead trump or risk losing” (106150 Ontario Ltd. v. Ontario Jockey Club, [1995] O.J. No. 132 (O.C.A.), at para. 35, the principle was re affirmed in Ramdial v. Davis (Litigation Guardian of), supra, at para. 28).

[20] The court is entitled to assume that the record before it is complete, that it contains all of the evidence that a party would present if there were a trial (Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438, at para. 8, citing Dawson v. Rexcraft Storage & Warehouse Inc., 111 O.A.C. 201, at para. 17; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 27, 33-34, aff’d 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97; and Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 392, at para. 54).

[21] Once the moving party discharges the burden of showing that there is no genuine issue for trial, the onus shifts to the responding party. That party must then provide evidence of specific facts showing that there is a genuine issue requiring a trial (Ramdial v. Davis (Litigation Guardian of), at para. 30). An adverse inference may be drawn from a failure to support the allegations or denials in a party’s pleadings (Pearson v. Poulin, 2016 ONSC 3707, at para. 40).

[22] Under r. 20.04(2.1) the court may exercise enhanced powers on the motion unless it is in the interest of justice to do so at trial. Those enhanced powers allow the court to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. As Paciocco J.A. wrote for the Ontario Court of Appeal at para. 83 of Mega International, those powers “... are presumptively available to a summary judgment motion judge to use to fairly and justly adjudicate a claim at a motion for summary judgment” (Hryniak, at para. 45). Using these enhanced powers is not contrary to the interests of justice if they lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. (Hryniak, at para. 66).

[23] The court is not required to resort to those powers to make up for a party’s evidentiary shortcomings (see Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438 at para. 8).

[24] At para. 5 of Hryniak, Karakatsanis J. called for summary judgment rules to be interpreted broadly, “… favouring proportionality and fair access to the affordable, timely and just adjudication of claims.”

[25] That being said, the words of Nordheimer J.A., writing for the Ontario Court of Appeal in Mason v. Perras Mongenais, 2018 ONCA 978, [2018] OJ No 6381 are apposite in setting out the limits of the summary judgment procedure:

44 With respect, the culture shift referenced in Hryniak is not as dramatic or as radical as the motion judge would have it. The shift recommended by Hryniak was away from the very restrictive use of summary judgment, that had developed, to a more expansive application of the summary judgment procedure. However, nothing in Hryniak detracts from the overriding principle that summary judgment is only appropriate where it leads to "a fair process and just adjudication": Hryniak at para. 33. Certainly there is nothing in Hryniak that suggests that trials are now to be viewed as the resolution option of last resort. Put simply, summary judgment remains the exception, not the rule.

[26] As C.U.C. MacLeod J. recently pointed out in Skafco Ltd (cob Robbie's Italian Restaurant) v. Abdalla, 2020 ONSC 136, the Mason v Perras Mongenais decision was made in the context of a motion for partial summary judgment, a process that has been significantly restricted by the Ontario Court of Appeal. Nonetheless, “… it sounds a note of caution and argues against the idea that summary judgment is the default mode of adjudication.” (at para. 28)

Issues:

[27] This motion raises the following issues:

1. Is a summary judgment motion the appropriate process to determine the issues raised in this case?
2. If so, should the court conduct a mini trial?
3. If the court is able to determine the Plaintiff’s claim by summary judgment, should this action be dismissed?

Analysis

Issue No. 1: Is a summary judgment motion the appropriate process to determine the issues raised in this case?

[28] The first stage of the summary judgment analysis requires the court to look to process: will the summary judgment process provide a proportionate process that allows that court to do justice to the parties? This process involves a comparison between the processes involved at trial and a motion. As the Supreme Court of Canada stated in Hryniak:

[57] This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)

[29] In other words, the question that I must ask myself is whether the summary judgment process is sufficient to allow a just determination of the issues on the merits or whether the fuller trial process is necessary. A key consideration in answering that question is whether there would be evidence available at trial that would not be otherwise available in this motion. Counsel for the Defendants and Jennifer state that there is no such evidence. Counsel for the plaintiff disagrees.

[30] In saying that I require a trial to get the fuller evidentiary picture necessary to decide this case, counsel for the Plaintiff points only to the need for the court to hear the viva voce or live oral evidence of the Plaintiff from the witness box. Counsel for the Plaintiff asserts that her oral evidence is necessary to determine the credibility of her claim. The Plaintiff goes even further, arguing that I should conduct a mini-trial which includes the Plaintiff’s oral evidence as part of this motion, under r. 20.04(2.2). I will deal with that issue below.

[31] As set out above, under r. 2.04(2.1), a judge hearing a summary judgment motion may presumptively utilize the court’s enhanced powers to determine whether there is a genuine issue for trial. A court is only prohibited from doing so when the interests of justice mandate that these powers be exercised only at trial.

[32] In exercising its enhanced powers, a court is entitled to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence (r. 20.04(2.1)). In doing so, it may order that any part of the evidence in the motion be presented orally (r. 20.04(2.2)). That is the “mini-trial”.

[33] Here, in requesting that I carry out a mini-trial, the Plaintiff concedes that it would be in the interests of justice that I exercise my enhanced powers at this motion. Even without that concession, I would make that finding.

[34] I start with the understanding that the record before me is complete. That is, I have before me all of the evidence that would be available at trial, particularly any documentary evidence. Thus, I assume that each party has put their “best foot forward” in this motion.

[35] Here, the only theoretically relevant evidence that would be available at a trial or even a mini-trial that would not be available in this motion is the viva voce evidence of the parties. John’s viva voce evidence is not available because he died some sixteen years ago. The third party to that transaction, Jennifer, has filed an affidavit. None of the parties are saying that her viva voce evidence is necessary to determine this motion.

[36] The last sentence of the Plaintiff’s sole affidavit in this motion asserts that “[t]he Defendants, in particular Leonard Carvalho should be subject to cross-examination. In fact, Leonard was cross-examined by counsel for the Plaintiff in preparation for this motion. Yet, the argument of the Plaintiff’s counsel in this motion made no reference to the transcript of that cross-examination. He said nothing about Leonard’s answers to his questions in regard to either the merits of this motion or his argument in favour of a trial/mini-trial. In fact, in arguing for a trial or even a mini-trial, he said nothing about my need to hear the oral evidence of Leonard.

[37] Thus, I am left with a simple argument that the court should not decide the merits of this case without hearing the live oral evidence of the Plaintiff. I note that the Defendants did not chose to cross-examine the Plaintiff, arguing that that the paucity of her independent evidence made cross-examination unnecessary. They deny that I need to see the Plaintiff cross-examined.

[38] Most cases have some credibility issue. So the fact that a party’s defence to a summary judgment motion is that there is a credibility issue is not sufficient to avoid a trial. Not every factual or credibility conflict requires a full-blown trial. That point, established in Hryniak, is not undermined by the notion set out by Nordheimer J.A. in Mason v. Perras Mongenais, regarding the fact that a trial is not a last resort.

[39] A party defending a summary judgment motion with the claim that only a trial can resolve any credibility issues must show where the credibility issues lie and how, in the context of the larger factual and legal issues, they can be better determined at trial than in a motion. They must do so in a manner that averts to the issues of proportionality, expeditiousness and expense.

[40] Here I have not been provided with any compelling argument that points to the court’s need to see the Plaintiff testify. I have not been informed of any advantage that would make a trial a better venue for determining the issues at trial. The Defendants and third party argue that the Plaintiff has failed to prove anything in her affidavit material in this motion. They argue that she has only made bald, unsubstantiated claims, some of which she withdrew in her litigation with Jennifer. Others are in conflict with the documentary record.

[41] In the absence of any argument that points to the advantage of oral evidence to do justice between the parties, I can only conclude that it is appropriate to use my enhanced powers to determine this action and that a trial would not be in the interests of justice.

Issue No. 2: Should the court conduct a mini trial?

[42] While I have found that the use of my enhanced powers to determine this motion would be in the interests of justice, I still must determine whether I should use those powers in order to hold a mini trial to hear, at the least, the oral evidence of the Plaintiff. In making that determination, following Hryniak, I still must consider whether a mini-trial would be a proportionate process, balancing the advantages of that process, if any, against the cost in time and money.

[43] Here, other than making the broad claim that a mini trial utilizing the Plaintiff’s oral evidence would assist me, I see no reason to order a mini trial. To order a mini trial, there must be something but a bald claim that a credibility issue can be better determined through viva voce as opposed to reliance on the affidavits, documents and any cross-examination. Here I see nothing but that claim.

Issue No. 3: Should this action be dismissed?

[44] In considering all of the evidence that has been produced in this motion, and accepting that all relevant evidence is before me, I find that there is no genuine issue for trial and that this action should be dismissed. I say this for the following reasons, which I now summarize and then explain in greater detail below:

1. The Plaintiff fails to offer any detailed facts and supporting evidence in support of her claims.
2. The documentary evidence produced by the Defendants belies the Plaintiff’s claims.
3. Jennifer’s evidence contradicts that of her mother and supports that of the Defendants.
4. The Plaintiff’s own evidence is inconsistent and contradictory.
5. The only credible narrative is that of the Defendants and Jennifer.

Lack of Detailed Facts and Supporting Evidence

[45] As set out above, a self-serving affidavit is not sufficient to create a genuine issue for trial in the absence of detailed facts and supporting evidence. Here, the Plaintiff offers no detailed alleged facts or supporting evidence.

[46] One thing that is particularly noticeable about the Plaintiff’s affidavit in this motion is her failure to attach a single document in support of her allegations. There is, for example, neither a trust agreement naming the Plaintiff as beneficiary nor a written acknowledgment of such a trust.

[47] The only evidence that the Plaintiff offers is a series of bald, vague and unsupported statements in her affidavit in this motion, as follows:

1. The Plaintiff swore that she transferred the property from her sole title to herself and Jennifer as joint tenants “… with the intention that Jennifer’s interest would be held in trust for me.” Yet she offers no independent evidence in support of that claim. In fact, as set out below, Jennifer’s evidence belies that claim.
2. The Plaintiff swore that her transfer of the first one-third share of the property to John was “…in consideration for [John] undertaking to pay the taxes and other carrying costs for the said property until its sale.” Again, there is no proof of this claim. As set out below, the unquestioned documentation for this transaction contradicts this allegation.
3. The Plaintiff swore that she sold the remaining two-thirds interest in the property to John for $150,000 “in order to protect the property from creditors”. She offers no particulars of that allegation. In particular, she fails to explain or detail why she felt that it was necessary to take this step to protect the property from creditors or how the transfer to a non-arms-length party for no consideration would protect the property.
4. The Plaintiff goes on to swear that despite paying her $150,000, John agreed to hold the property in trust for her. She fails to explain or detail why John would pay that much money to her only to effectively do a favour for her. She points to nothing in their relationship or past dealings that would induce him to do so. She can point to no evidence of a trust agreement or anything said or done between herself and John that confirms the trust. As set out below, the only independent evidence belies her trust claim.
5. Further she fails to explain what she did with the $150,000 if that was not the consideration for the transfer. Further, as she alleges that John was merely holding the two-third share in trust for her, was she required to return that money to him? If so when? Under what terms? The Plaintiff’s lawyer attempted to offer an answer to those questions during the course of his argument. But he could point to no evidence that would allow him to do so.
6. The Plaintiff refers to the written acknowledgement of trust in favour of Jennifer, signed in by the Defendants on August 5, 2004, after John died. She swears that “[t]here was no reference to the additional 15.5 acres that [John] had received in trust for me.” That acknowledgment of trust was addressed to both Jennifer and the Plaintiff. She does not deny having received the acknowledgment. Yet she does not say why she did not take any steps in 2004, in the face of this failure to acknowledge her alleged trust interest in the property.
7. The Plaintiff swore that “[i]n or about November 2013, Jennifer acknowledged, in writing, that she held 13.5 acres of the said property in trust for me.” She made an identical claim in her statement of claim in the Jennifer lawsuit. Yet she failed to produce that alleged written acknowledgment. Of course, as set out above, that allegation, which she made in the Jennifer lawsuit, is belied by her written acknowledgment contained in her minutes of settlement with Jennifer.

The only documentary evidence produced in this motion belies the Plaintiff’s claims

[48] Unlike the Plaintiff, the Defendants and Jennifer are able to produce ample independent documentation to support their narrative. In particular:

1. The Defendants produced copies of the Transfers by which the one third and two third shares of the property were transferred from the Plaintiff and Jennifer to John. They have also produced the trust ledgers of John’s real estate lawyer. Those documents confirm the payment of $150,000 for each transaction, a contention that the Plaintiff’s lawyer did not deny in the course of argument of this motion.
2. Jennifer has produced the land transfer tax affidavit signed by the Plaintiff on May 13, 1992, when she transferred her interest in the property to herself and Jennifer jointly. The affidavit describes the consideration for the transaction as “natural love and affection”. Neither the Transfer nor the land transfer tax affidavit makes any reference to Jennifer holding her interest in the property in trust for her mother. Rather, they support the legal presumption that the transfer between a parent and a child is a gift (see Pecore v. Pecore, 2007 SCC 17, 2007 S.C.J. No. 17 at paras. 27-28, 94).
3. The land transfer tax affidavit for the sale of the first one-third share of the property to John, signed by John, sets out the consideration as $150,000. The Plaintiff, as a party to that transaction, would undoubtedly have received a copy of this affidavit. She does not deny that receipt. None of the closing documents refer to Jennifer holding any share of the property in trust for her mother.
4. The Transfer and land transfer tax affidavit for the transfer of the last two-thirds of the property to John are very similar to their counterparts for the earlier sale of a one-third interest. They also describe the consideration for the transaction as $150,000. They make no reference to Jennifer holding any interest in trust for her mother. Admittedly, the documents make no reference to John holding a one-third interest in the property in trust for Jennifer either. But as stated above, that arrangement is set out in writing in the trust agreement.
5. The Defendants have produced a written trust agreement between John and Jennifer, dated December 1993. The trust agreement confirmed that John held a one-third interest in the property in trust for Jennifer. The agreement acknowledges that the Plaintiff and Jennifer transferred their two-thirds share of the property to John. It also states that John cannot “… mortgage, transfer or otherwise deal with the property…” without Jennifer’s consent. It says nothing of the Plaintiff’s consent. This document offers strong independent confirmation of the narrative of the Defendants and Jennifer. The Plaintiff has never stated that she is unaware of this agreement or that it had not been contemporaneously produced to her.
6. The Defendants have produced a written acknowledgment of the trust agreement, addressed to both the Plaintiff and Jennifer, signed by Leonard on August 5, 2004. The Plaintiff has never stated that she is unaware of this agreement or that it had not been contemporaneously produced to her. But she fails to explain why she did not contact Leonard to demand a similar acknowledgment of her alleged interest.
7. The Defendants have produced the two written agreements, each calling for for the Defendants to purchase one acre from Jennifer’s share of the property. One was dated November 12, 2006 and the other was dated April 28, 2011. Their details are set out above. Each document refers to and acknowledges Jennifer’s one-third trust share of the property. Although the Plaintiff signed each document, neither refers to her holding a similar trust interest.
8. Jennifer produced the minutes of settlement, notice of discontinuance and agreement to discontinue the Jennifer lawsuit, all signed or issued on behalf of the Plaintiff. The Plaintiff’s written acknowledgment in the minutes of settlement in that action contradicts the Plaintiff’s trust claim. As set out above, the Plaintiff admitted in that document that “… Jennifer is the sole beneficiary of the trust set out in the claim …”
9. Jennifer produced a copy of the bank draft for $1,825,711 endorsed to her alone by the Defendants upon the closing of their sale of the property. This draft represented the financial value of her one-third less two acres trust share of the property.
10. The Defendants produced copies of two promissory notes signed by the Plaintiff in 2015 and directed to a third-party lender. Leonard witnessed those promissory notes. In those promissory notes, the Plaintiff refers to her having a one-third interest in the property. She states in each that “[t]his my 1/3 interest is now my daughter Jennifer Chun name in trust [sic]”. In other words, she claims in these documents, drafted before she settled her action with Jennifer, that she held a one-third share in the property. But that is the share that was in the name of her daughter, in trust. She said nothing of a second one-third share of the property being held in trust for her by the Defendants.

The Plaintiff’s own evidence is inconsistent and contradictory

[49] It does not take cross-examination to note that the evidence of the Plaintiff is both internally inconsistent and is contradicted by other documents that she signed.

[50] The first area of contradiction is the Plaintiff’s sworn assertion that the transfer of her interest in the property to herself and Jennifer jointly was made with the intention that Jennifer’s interest be held in trust for her. In other words, despite joint title, the Plaintiff was to remain the sole equitable owner of the entire property. The problem with this assertion is the obvious one that the documents that she signed for that transaction make no reference to such an alleged trust.

[51] The Plaintiff then swears that she and Jennifer transferred the first one-third interest in the property to John in consideration for his agreement to pay the carrying costs of the property. But the documentation of the transaction shows that not to be the case. The consideration was $150,000, which the Plaintiff does not deny receiving from John.

[52] The Plaintiff then moves on to the second property transfer to John. There are a number of contradictions in regard to the Plaintiff’s narrative of this transfer. First, the Plaintiff says that she and Jennifer sold the share to John for $150,000. That is a clear statement of a transfer and consideration. She then contradicts this notion of a sale by ending the same paragraph with the statement that John agreed to hold the property in trust for both her and Jennifer. But if he bought the property, why would he hold it in trust for them? What did he buy? Why did he pay her $300,000? She does not say.

[53] It is worth noting the Plaintiff’s wording in this regard. She swore that John “… agreed to hold the property in trust for Jennifer and I.” [emphasis added] This appears to be a claim that John, now the legal owner of all of the property, was holding it all in trust for her and Jennifer. Not two-thirds. It may be that this claim is merely the result of is careless drafting, by what was at the time a self-represented litigant (whose present counsel admitted that he assisted her throughout this litigation). Even so, it calls for caution when considering the Plaintiff’s assertions. More so in light of the other contradictions cited below.

[54] The Plaintiff offers conflicting narrative as to who owns equitable title to whatever share of the property John (and later the defendants) held in trust. She contradicts the notion of herself as the sole equitable owner of the property when she speaks of the transfer to John of the remaining two-thirds interest in the property. She says that he agreed to hold to hold the property in trust for both her and Jennifer. In other words she asserts that Jennifer also had an equitable interest in two thirds of the property.

[55] The remainder of the Plaintiff’s affidavit seems to allude to the claim that John was really holding two-thirds of the property in trust for the Plaintiff. She makes that point when she swears that “[i]n or about November 2013 Jennifer acknowledged in writing, that she held 13.5 acres of the said property in trust for me.” But, as set out above, that allegation is also unsupported by evidence.

[56] Nonetheless, that point leads to a further question: if the Plaintiff were the sole beneficial owner of the two-thirds or any other share of the property, why would John hold it in trust for both her and Jennifer? Why not just hold it for her? It would be cumbersome and unnecessary for John to hold half of the two-thirds share in trust for Jennifer, when she allegedly was only holding it for the Plaintiff.

[57] The Plaintiff further alludes to her sole equitable interest in the property when she swears in her affidavit that she adopts the allegations pleaded in her statement of claim. There, her prayer for relief claims a declaration that the Defendants held or hold the property in trust for the Plaintiff. Not for the Plaintiff and Jennifer. Later in the statement of Claim, the Plaintiff states that a constructive trust should be imposed on the Defendants’ share of the proceeds of sale of the property “representing the 15.5 acres being held for the Plaintiff.” But if the trust is for both her and Jennifer, why does she claim all of the beneficial interest in the property?

[58] The Plaintiff then contradicts the notion of her sole equitable interest in the property when she complains of the Defendants’ sale of the property for $8,700,000. She adopts the pleading that they “…failed or purposely neglected to account to me or Jennifer for the 15.5 acres of the property that was still in trust for Jennifer and me.” Why would the defendants have to account to Jennifer if the Plaintiff held the sole equitable interest?

[59] Of course, all of this is contradicted by the documentation in the Jennifer lawsuit. There, the Plaintiff first claimed and then effectively retracted a claim that Jennifer held her one-third interest in the property in trust for the Plaintiff.

[60] In short, the Plaintiff has been unable to provide the court with a consistent narrative that proves her alleged trust interest in the property.

Jennifer’s evidence contradicts that of her mother and supports that of the Defendants

[61] The Defendants added Jennifer as a third party to this action. Her position in the litigation consistently confirmed the narrative of the Defendants. She explained that her mother received the $300,000 from John in the two transfers of land to him while she received a trust interest in the remaining share. That was because “[a]ll parties believed that [they should enter the trust arrangement benefitting Jennifer] as I was young and that I needed to be protected.”

[62] Jennifer added that she and her mother believed that John and Leonard “… would administer the trust prudently and ensure that I would be financially secure.” Referring to the $1,825,711 payment in 2015, upon the closing of the sale of the property, Jennifer continued, stating that “[o]ur trust in Leonard and John Carvalho was well placed.”

[63] Jennifer’s assertions were backed by many of the documents described above.

The only Credible Narrative is that of the Defendants and Jennifer

[64] In looking to the factors set out above, I find that this is one of those cases on which it is both proportionate and just to decide the merits of an action without a trial. Simply put, the evidence of the Defendants is amply supported by independent documentation and the evidence of Jennifer. Further, their evidence is consistent with each other and the independent evidence. That cannot be said of the Plaintiff. Her evidence has no independent confirmation and to put it in vernacular terms, it simply does not add up.

[65] Thus, I find that the Plaintiff decided to gift a joint interest in the property to her minor child, Jennifer, in 1992. That proposition is supported by both the presumption of gift and the settlement of the Plaintiff’s action with Jennifer. A week later, she simply sold a one-third interest in the property to John for $150,000. She kept the funds despite her daughter’s titular joint interest in the property.

[66] About a year later, the Plaintiff sold a further one-third interest in the property to John for $150,000. In consideration of that sale, John agreed to hold the remaining third in trust for Jennifer. That narrative accords with Leonard’s evidence, the available documentation for the transaction, the previous purchase price and the parties’ subsequent course of dealings.

[67] There is no reason to suspect any underhanded dealings by either John or his children. They have consistently adhered to the terms of the trust in the approximately twenty-two years of its existence. They signed documents setting out and then confirming the terms of the trust. When the two acres were sold to the Defendants, it was properly memorialized. Then, when the final sale was effected, the Defendants paid to Jennifer the monetary value of her interest of the property. There is no question about any of that. Jennifer, who would have an interest in saying that she was shortchanged by the Defendants says nothing of the sort. She asserts that she was properly dealt with and compensated.

[68] If John and the Defendants were as forthcoming and honest with Jennifer why would they not treat the Plaintiff, with whom John had friendly relations, differently? Perhaps more to the point, why would the Plaintiff accept a course of conduct over more than two decades that ignored her alleged trust interest in the property? She had plenty of notice of the manner in which John and his offspring approached their ownership and Jennifer’s trust interest in the property. Yet, from the evidence, the Plaintiff said and did nothing to confirm her alleged trust interest in the property until it was sold for a multi-million-dollar figure.

[69] The evidence of Leonard and Jennifer are credible and supported by Jennifer’s evidence, the independent evidence, the course of conduct described above and the inferences that can be drawn from that evidence and conduct. The same cannot be said for the bald assertions of the Plaintiff.

Conclusion

[70] In sum, there is no genuine issue for trial. This action can be justly and proportionately determined in the context of a summary judgment motion with the use of the court’s enhanced powers. The Plaintiff’s claim is dismissed. As the Defendants’ third party claim only sought contribution and indemnity from Jennifer, it too is dismissed.

Costs

[71] As I assume that the Plaintiffs and perhaps Jennifer seek their costs of this action and motion, the parties may make their costs submissions as follows:

1. The submissions shall be no more than three pages, double spaced, 12-point font, 1” margins.
2. They may also include a bill of costs or costs outline and any authorities upon which they rely.
3. The Defendants shall serve and file their submissions within 14 days of the release of these reasons.
4. Jennifer shall serve and file her submissions within 14 days of the receipt of the Defendants’ costs submissions.
5. The Plaintiff shall serve and file her submissions within 14 days of the receipt of Jennifer’s costs submissions.

Kurz J. Date: March 2, 2020