Powers v. Webber (Estate of) , 2020 ONSC 2359

COURT FILE NO.: CV-20-83251

DATE: 2020/04/17

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: JAYNE POWERS – Plaintiff v. THE ESTATE OF MARTYN WEBBER by his Estate Trustee, Eric Honey - Defendant

BEFORE: Madam Justice S. Corthorn

COUNSEL: Ian Stauffer, for the Plaintiff

No one appearing for the Defendant

HEARD: In Writing

endorsement

Introduction

1On an urgent basis, and without notice to the Estate of Martyn Webber (“Webber Estate), Jayne Powers brings this motion in writing for an order for a certificate of pending litigation (“CPL”) to be registered on the title to the home in which she resides (the “Property”). The Property was purchased by the late Martyn Webber (“the Deceased”) in 2005. Title to the Property was in the Deceased’s name only. The Estate Trustee for the Webber Estate recently informed Ms. Powers that he intends to put the Property up for sale.

2Ms. Powers’ evidence is that she and the Deceased cohabited from 2007 to 2018, including at (a) Ms. Powers’ apartment in Gatineau, Quebec from September 2007 to May 2011, and (b) the Property from May 2011 to August 2018. The Deceased passed away in the latter month. Ms. Powers has continued to live at the Property since that time.

3It is also Ms. Powers’ evidence that she has, over time and including to the present, contributed to the equity in the Property. Those contributions are said to be in the form of financial contributions made to renovation and repair of the Property between 2007 and 2018. In addition, since August 2018, Ms. Powers has been paying the mortgage and other expenses related to the Property.

4In this action, Ms. Powers claims entitlement to an interest in the Property on the basis of a constructive trust.

The Issue

5The issues raised on this motion are:

1. Has Ms. Powers established that it is either “impracticable or unnecessary” to serve the Webber Estate with the notice of motion?

2. If the answer to Issue No. 1 is “yes”, is Ms. Powers entitled to an order for a CPL to be issued and registered on the title to the Property?

6Before addressing these issues, I consider the circumstances at the time this motion in writing comes before the court.

The Suspension of Usual Court Operations

7On March 16, 2020, the usual operations of this Court were suspended due to the Covid-19 pandemic. A notice issued on March 15, 2020 outlined the matters that may proceed on an urgent basis, including in writing and without notice: Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings (https://www.ontariocourts.ca/scj/covid-19-suspension-fam and “the Notice”). It is clear from the Notice that only the most urgent matters will be heard by this court, whether orally or in writing, until circumstances arising from the pandemic allow the court to hear a broader range of matters.

8This matter was deemed urgent by the triage judge and assigned to me. It remains to be determined, however, whether the motion may proceed in writing and without notice to the Webber Estate.

Issue No. 1 - Has Ms. Powers established that it is either “impracticable or unnecessary” to serve the Defendant Estate with the notice of motion?

a) The Rules of Civil Procedure

9In support of her request for the motion to be heard in writing and without notice, Ms. Powers relies on r. 37.12.1(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It provides that the court has the discretion to hear in writing a motion made without notice pursuant to r. 37.07(2). Under that subrule, service of a notice of motion is not required “[w]here the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary”.

b) Analysis

10The notice of motion does not in any way address the request for the motion to proceed without notice to the Webber Estate. The “Grounds for the Motion” address only Ms. Powers’ alleged interest in the Property.

11Ms. Powers’ affidavit is 17 paragraphs in length. It includes the standard introductory paragraph and a conclusory paragraph in which Ms. Powers states that she makes the affidavit in support of the relief requested and for “no other or improper purpose.” A conclusory paragraph of that kind is not required in either form or substance.

12Only one of the remaining 15 substantive paragraphs addresses the request for the motion to proceed without notice to the Webber Estate. At para. 14 of her affidavit, Ms. Powers expresses her belief that “the sale of the Property is imminent”. Her belief in that regard is the sole basis for Ms. Powers’ request for the motion to proceed without notice to the Webber Estate.

13In her affidavit, Ms. Powers addresses the circumstances since August 2018. Her evidence is that as of the fall of 2019, her counsel was negotiating with the Estate Trustee in an effort to resolve her claim to an interest in the Property.

14It appears that the first notice in writing that Ms. Powers received of the Estate Trustee’s intention to put the Property up for sale was a letter dated November 6, 2019 and addressed to Ms. Powers’ counsel. In that letter, the Estate Trustee expresses frustration that a resolution of Ms. Powers’ claim had not been reached after a year of negotiations. In addition, the Estate Trustee states his intention to put the Property up for sale and to do so without notice to either Ms. Powers or her counsel.

15Ms. Powers’ evidence is that following ongoing negotiations, on March 19, 2020, her counsel informed the Estate Trustee that Ms. Powers would seek an order of the court permitting her to register a CPL on the title to the Property. The Estate Trustee responded by a letter dated March 20, 2020 addressed to Ms. Powers’ counsel. In that letter the Estate Trustee says, “Let this serve as notice to you that notwithstanding the Certificate of Pending Litigation, I will be listing the subject property for sale with the closing date to be adjusted to follow the decision of the court.”

16Ms. Powers’ affidavit was sworn on April 2, 2020 – approximately two weeks following the date of the Estate Trustee’s most recent letter. There is no evidence that the Property was listed for sale in that two-week period.

17For the following reasons, I find that the evidence does not support a conclusion that providing the Estate Trustee with notice of the motion is either “impracticable or unnecessary”:

• Based on the contents of the Estate Trustee’s letter dated November 6, 2019, I draw an inference and find that Ms. Powers and her counsel have known who the Estate Trustee is for approximately 1.5 years. In that period, communication between Ms. Powers or her counsel and the Estate Trustee has been ongoing. That communication includes both emails and letters.

• The communication between Ms. Powers’ counsel and the Estate Trustee continued as recently as March 18, 19, and 20, 2020 – days after the initial concerns about Covid-19 led to various measures being taken in the Province of Ontario.

• The Estate Trustee is a lawyer at an Ottawa-based law firm. There is no evidence to support a conclusion that the Estate Trustee cannot be served with the notice of motion, motion record, and, if required, a factum and book of authorities.

18Unless the parties agree otherwise, this matter shall proceed to an oral hearing, with the relevant materials served on the Estate Trustee. The court reserves the right, in any event, to require that the motion proceed by way of an oral hearing. In the event an oral hearing is required, because of lack of agreement between the parties or by order of the court, the Plaintiff shall take the steps necessary to schedule a return date for the motion as soon as practicably possible.

c) The Next Steps

19Ms. Powers shall serve the Estate Trustee with copies of this endorsement, the order taken out pursuant to this endorsement, the notice of motion and, thereafter, a motion record. I say “a” motion record as opposed to “the” motion record because the existing motion record does not include a copy of the statement of claim. Ms. Powers shall revise the existing motion record to include a copy of the statement of claim as a discreet, tabbed document (i.e., not an exhibit to her affidavit).

20A copy of the originating process must form part of the record so that the court is able to determine whether the requirements for a CPL are met. In that regard, I refer to section 103 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which governs CPLs. Specifically, s. 103(1) provides as follows: “The commencement of a proceeding in which an interest in land is in question is not notice of the proceeding to a person who is not a party until a certificate of pending litigation is issued by the court and the certificate is registered in the proper land registry office under subsection (2)” (emphasis added). The court must review the statement of claim to determine whether “an interest in land is in question” in the action commenced by Ms. Powers.

21At my request, a copy of the statement of claim issued on March 23, 2020 was provided by Ms. Powers’ counsel to the court for review prior to the release of this endorsement.

d) Interim Relief

22I take judicial notice of the Covid-19 measures in effect in the Province of Ontario. Those measures include a restriction on open houses for residential real estate sales. I find that those measures create uncertainty for the Estate Trustee in his efforts to sell the Property.

23I also find that the Covid-19 pandemic, in and of itself, creates uncertainty for Ms. Powers should she ultimately be required to find alternate accommodation. It is therefore reasonable to provide Ms. Powers with a degree of comfort that she will not, without further consideration by the court, find that the Property has been sold and that she is required to obtain alternate accommodation. For that reason, the order made below includes a term precluding the Estate Trustee from agreeing to a closing date for the sale of the Property without either the consent of Ms. Powers or further order of the court.

Issue No. 2 - If the answer to Issue No. 1 is “yes”, is Ms. Powers entitled to an order for a CPL to be issued and registered on the title to the Property?

24The answer to Issue No. 1 is “no”. Therefore, Issue No. 2 is not determined at this time.

Order Made

25For the reasons set out above, I make the following order:

1. The Plaintiff’s motion, made without notice and in writing, for an order that the Registrar shall issue a Certificate of Pending Litigation in favour of the Plaintiff pursuant to section 103 of the Courts of Justice Act, R.S.O. 1990, c. C.43, against the property described as PT LT CON 5 OSGOODE PTS 1 & 2, 5R7826; S/T OS15751 OSGOODE (PIN No.: 04320-0035 (LT) and “the Property”) is adjourned.

2. The Plaintiff shall, as soon as practicably possible, bring the motion back on notice to the Defendant Estate.

3. The Plaintiff shall, no later than Wednesday, April 22, 2020, serve on the Defendant Estate copies of the endorsement herein dated April 17, 2020, this order, and the notice of motion.

4. Service of the documents referred to in paragraph 3, above, shall be carried out by email, by sending a copy of each document to the Estate Trustee at honeymac@rogers.com. The related affidavit of service shall include as exhibits, copies of the cover email and the transmission confirmation form.

5. The Plaintiff’s motion record shall include, as a discreet tabbed document, a copy of the statement of claim in this action.

6. The Defendant Estate shall not, without the consent of the Plaintiff or further order of the court, agree upon a closing date for the sale of the Property.

7. Because of the Covid-19 emergency, this order is being issued under my electronic signature. This order is effective, binding and enforceable without further formality at this time. Once normal operations resume, a copy of this order shall be filed with the Court.

26I remain seized of this motion and any related proceeding. In the event the parties are unable to agree upon one or more of (a) a timetable for the exchange of materials and, if required, cross-examinations, (b) the method of service for the documents on the motion, and, if required, (c) a return date on which the motion shall be heard orally, they may contact the Trial Co-ordinator to schedule a telephone case conference with me. If a case conference is required, counsel for the Plaintiff shall be responsible to provide the teleconference facilities.

27With respect to the delivery of materials and, if necessary, a return date on which the motion shall be heard orally, the parties shall follow the protocols set out in the Notices to the Profession issued by the Court regarding the suspension of usual court operations. Those notices are available on the Court’s website and on the website for the Carleton County Law Association.

28As a result of the suspension of usual court operations, this endorsement is being issued under my electronic signature. Once normal operations resume, a copy of this endorsement shall be added to the court file.

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