COURT FILE NO.: 19-71249

DATE: 20201222

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Amanda Canning

Plaintiff/Defendant by Counterclaim Responding Party on the Motion

– and –

Jennifer Bento

Defendant/Plaintiff by Counterclaim Moving Party on the Motion

Rachelle Hepburn, Agent for

Plaintiff/Defendant by Counterclaim, Responding Party on the Motion

Evan A. Presvelos,

Counsel for Defendant/Plaintiff by Counterclaim, Moving Party on the Motion

HEARD: October 1, 2020

REASONS FOR DECISION ON MOTION

Justice L. sheard

Nature of the Motion

1Jennifer Bento, the defendant/plaintiff by counterclaim (“Bento”), brings this motion for summary judgment dismissing the action brought by Amanda Canning (“Canning”) and granting a declaration that Bento is the exclusive legal and equitable owner of a residential property at 82 Bousefield Rise, Waterdown, Ontario, (the “Property”).

2In the event summary judgment is not granted, Bento seeks the following alternative relief:

(a) an order discharging the Certificate of Pending Litigation registered by Canning against the Property (the “CPL”)¹;

(b) an order for the partition and sale of the Property;

(c) an order that Canning post security for costs of her claim; and

(d) an order that the amount claimed by Canning in her statement of claim be paid into court from the net sale proceeds of the Property, pending a determination of Canning’s claim.

Overview

3Canning and Bento are sisters. Bento purchased the Property in her own name and Canning and her children live in the Property.

4Since 2018, Bento has wanted to sell the Property. Canning does not wish to move. Bento brought an application before the Landlord and Tenant Board (the “LTB”) to evict Canning. On October 10, 2019, the LTB determined that Canning was a tenant and that a hearing could be scheduled of Bento’s application under the Residential Tenancies Act, 2006 (the “RTA”) for possession of the Property.

5On November 15, 2019, Canning commenced this action seeking, in part, a declaration that she has a 50% interest in the Property, a vesting order vesting her with a 50% interest in the Property, the CPL, and, in the alternative, an equitable mortgage against the Property in the amount of $250,000.

6Canning claims a 50% beneficial interest in the Property on the basis that she contributed towards it purchase, has lived in it since its purchase and paid a monthly amount sufficient to cover the mortgage and property taxes, and because Canning has an agreement with Bento that they would be 50/50 co-owners.

7Bento disputes Canning’s claims: she denies that Canning contributed any money toward the purchase of the Property; says that Canning is a tenant, not a co-owner, and the monthly amounts paid is rent; and that she has no agreement with Canning respecting co-ownership of the Property.

Disposition:

8As explained below, I do not grant summary judgment dismissing Canning’s action, having determined that a trial is required to determine what amount, if any, Canning is entitled to receive from the net sale proceeds of the Property.

9I do grant some, but not all, of the alternate relief claimed by Bento and make the following orders:

(1) The CPL is discharged.

(2) Bento may list and sell the Property and Canning shall co-operate with Bento in the sale.

(3) From the sale proceeds shall be paid:

(a) the mortgage on the Property;

(b) real estate commission;

(c) legal fees relating to the sale;

(d) outstanding taxes or encumbrances against the Property;

(e) any executions against the vendor; and

(f) any other amounts as the parties may agree, including, but not limited to, the repayment to Carson Canning, the parties’ father, of amounts that may be owing to him in respect of the Property.

(4) From the proceeds of sale, net of the payments described in (3) above, 50% shall be paid to Bento, free and clear of any claims made by Canning in this action.

(5) The remaining 50% of the net proceeds of sale shall be paid into court, pending the determination of Canning’s entitlement, if any, to an interest in the Property.

(6) The determination of Canning’s interest, if any, in the net sale proceeds paid into court, shall be determined by way of a trial of that issue, and based on the pleadings filed.

Summary Judgment Law

10Rule 20.04(2)(a) of the Rules of Civil Procedure² provides that the court shall grant summary judgment if it “is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”

11The respondent on a motion for summary judgment “is not permitted “to sit back and rely on the possibility that more favourable facts may develop at trial”, and is instead required to “lead trump or risk losing” and “put its best foot forward”, as “the court is entitled to assume that the record contains all the evidence the parties would present at trial”³. The burden of establishing that there is no genuine issue for trial with respect to a claim or defence remains on the moving party.⁴

12Rule 20.04(2.1) of the Rules of Civil Procedure sets out the powers of the court on a motion for summary judgment:

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

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

13The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, guides the Court on a summary judgment motion. The governing principles can be found at paragraphs 49 and 50:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

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

Finding of Fact -The Alleged Agreement, Preliminary Comments

14On this motion, Canning put forth a photocopy of a document that she claims is a copy of the agreement she and Bento signed in 2012 (the “Alleged Agreement”). The Alleged Agreement provides that on the sale of the Property, Canning and Bento will split the net sale proceeds between them. It also provides that the Property will only be sold when Canning and Bento agree.

15Bento says that she did not sign the Alleged Agreement and saw it for the first time in 2019, when Canning produced it in the course of the LTB hearing.

16As is fully explained below in these reasons, I conclude that the record permits me to make, with confidence, certain findings of fact. On that basis, I have, for example, concluded that the Alleged Agreement was never agreed to or signed by Bento and is not a valid or enforceable agreement. In reaching this conclusion, I have exercised the powers available to me under r. 20.04 (2.1).

17In making my findings, I have determined that whether the Alleged Agreement is valid and enforceable is not an issue that requires a trial, nor is it in the interest of justice for the powers available to me under r. 20.04 (2.1) to be exercised only at trial.

18I find that the only genuine issue for trial is whether and to what extent, if any, Canning is entitled to share in the 50% net sale proceeds of the Property to be paid into court. I have also concluded that that delaying the sale of the Property would be contrary to the interest of justice in this case.

Detailed Summary of the Evidence

19There was a great deal of evidence put forth on this motion, which consisted of affidavits sworn by the parties, and by the parties’ father, Carson Canning; transcripts from the September 2019 LTB hearing; transcripts of the cross-examinations of the parties on their affidavits⁵; and expert reports from handwriting analysts.

Background

20According to Bento, the events that ultimately led to this litigation began in 2010. At that time, Canning was receiving social assistance and living in low-income housing with her two children. Canning complained to Bento about her living environment and Bento invited Canning and her children to live at Bento’s home in Burlington. Bento says that Canning used her social assistance housing allocation to pay rent to Bento. Bento asserts that Canning lived with her for approximately 16 months and in that period paid Bento a total of approximately $11,000 for rent.

21In her affidavit on this motion, Canning denies that she ever lived with Bento. However, that evidence conflicts with Canning’s testimony during the LTB hearing in September 2019 in which Canning acknowledges that she did live with Bento while the Property was being built.⁶

22Canning asserts that the approximately $11,000 she paid to Bento came from her “baby bonus”⁷ and was to be held by Bento as Canning’s contribution toward the purchase of the Property, which was to provide a home for Canning and her children.

23Bento states that she had amassed savings that she wanted to invest in real estate. She had hoped to earn rental income and, when market conditions were favourable, to sell the Property at a profit.

24When Bento realized her savings were not enough for a down payment on a house, she asked her father, Mr. Canning, whether he would invest with Bento in the Property. He agreed. According to Bento, the funds for the deposit and down payment on the Property came only from Bento and Mr. Canning.

25Bento’s motion for summary judgment included the affidavit of Mr. Canning sworn December 4, 2019. His evidence is largely consistent with that of Bento: he states that Bento approached him in 2011 about her wish to buy a property as an investment. He agreed to help Bento with the purchase of the Property and contributed $26,500 toward the down payment. The balance of the cash needed for the down payment came from Bento.

26If there is an inconsistency between his and Bento’s evidence, it is that Mr. Canning says that he was an investor in the Property and that upon any sale of the Property, he and Bento were to split the net sale proceeds. However, on this hearing, neither Canning, nor Bento, appeared concerned about repaying Mr. Canning or about any potential claim Mr. Canning might have as a “silent partner” in the Property. Apart from his affidavit, Mr. Canning has not participated in the litigation and this court has not been asked to determine his interest, if any, in the Property. However, the inconsistency between Mr. Canning’s evidence and the positions taken by both Canning and Bento on this hearing, contributes to my conclusion that a trial is required to determine Canning’s claim to an interest in the Property.

Title and Mortgage in Bento’s Name

27The documentary evidence supports Bento’s claim that she was to be the sole owner of the Property:

(i) on February 8, 2011, Bento entered into an Agreement of Purchase and Sale as sole purchaser of the Property, which included a house to be constructed;

(ii) the balance of purchase price of $267,900, was financed through a mortgage given by Bento in favour of TD Canada Trust in the principal amount of $214,320 (the “TD Mortgage”). Mr. Canning is named as a guarantor on the TD Mortgage;

(iii) title to the Property is registered in Bento’s name as sole owner.

(iv) although Canning attended with Bento at the offices of Peter Cass, the lawyer who acted on the purchase, his office has no record of any discussions about Canning having an unregistered alleged interest in the Property;

(v) Bento has maintained sole control over the renewal of the TD Mortgage; and

(vi) Bento has arranged for and paid the insurance on the Property, which is identified as a rental property.

Canning’s involvement in the Property

28The parties agree that well prior to the closing of the purchase of the Property, they had agreed that Canning would live in the Property. Bento said she was then on good terms with Canning and wanted her to have a nice home to live in with her children. Bento says that out of affection for Canning, she agreed that Canning would not be required to pay market rent but only to pay the amount needed to cover the monthly mortgage and property taxes on the Property. Canning would also be responsible for payment of her own utilities.

29A joint account was opened into which Canning deposited her monthly payments and from which the mortgage and property taxes were paid.

30Mr. Canning’s evidence on this point is that the Property was to be an investment for him and Bento and that Canning would occupy it as a tenant and would pay a monthly sum of rent to be determined between Bento and Canning.

31The arrangement between the parties appeared to work until some time in 2018.

September 2018 – Bento wants to Sell

32In September 2018, Bento decided that she wanted to sell the Property, realize her investment and use the money toward the purchase of a home for herself. According to Bento, Canning initially agreed to vacate the Property, but then asked to stay to the end of the school year in June 2019. Canning failed to pay rent in October and November 2018 (these missed payments have since been caught up).

33In his affidavit, Mr. Canning states that in June 2018, Bento told him she wanted to sell the Property and that her relationship with Canning was deteriorating. Bento was also concerned that Canning would be upset at Bento’s wish to sell the Property, as it would mean that Canning would have to find a new place to live, which could be difficult for her. As a result, Mr. Canning states that in August 2018, he gave Canning $5,000 to help her secure new accommodation. He says that Canning did not find a new place to live, nor did she repay the $5,000 Mr. Canning had given to her for that purpose.

34Canning asserts that Mr. Canning’s affidavit is not reliable. Canning disputes that the $5,000 she received from her father was to assist her in relocating and says that it was money to allow her and her children to take a holiday in Florida. Canning says that Mr. Canning has been “an excessive drinker” throughout the lives of his children and signed the affidavit as a result of threats by Bento and “Carol-Ann”, the parties’ other sister, that if he did not sign, they would send Mr. Canning to “rehab”.

35Mr. Canning was cross-examined on his affidavit and, despite Canning’s assertion that Mr. Canning’s affidavit is unreliable evidence, the transcript of Mr. Canning’s cross-examination was not put into evidence. For that reason, an adverse inference may be drawn respecting Canning’s allegations concerning the reliability of Mr. Canning’s evidence.

The LTB Proceedings

36In June 2019, when it became apparent that Canning was not prepared to vacate the Property, Bento brought the LTB application to evict Canning.

37On June 17, 2019, the LTB initially dismissed Bento’s application on the basis that the payment by Canning of an amount required to cover the mortgage and property taxes did not render those payments “rent” and that the evidence did not establish that the parties had entered into a rental agreement and, therefore, the Residential Tenancies Act, 2006 (the “RTA”) did not apply.

38In July 2019, Canning sought a review of the initial LTB decision on the basis that the LTB had made a decision on argument only and without hearing evidence. In the course of the September 2019 review hearing, Canning told the LTB that she is a beneficial owner of the Property and produced a photocopy of the Alleged Agreement. Bento says that the first time she saw the Alleged Agreement was when Canning produced it at the LTB hearing.

39Following its review, the LTB concluded that it was not satisfied that Canning was exempt from the definition of a “tenant” under the RTA due to an ownership interest, nor was it satisfied that Canning had proven an ownership interest in the rental unit. On that basis, the LTB cancelled the earlier LTB Order and determined that the RTA did apply and ordered Bento’s application to be scheduled. That process appears to have been derailed by this action, commenced by Canning on November 15, 2019.

The Alleged Agreement

40In her statement of claim, Canning does not advance a claim to be entitled to indefinite possession of the Property. However, in resisting the alternate relief sought by Bento on this motion - the sale of the Property – Canning takes the position that by virtue of the Alleged Agreement, the Property may not be sold unless and until both Canning and Bento agree to sell.

41I do not accept Canning’s evidence that the Alleged Agreement was entered into with Bento in 2012 or at all. I do not accept Canning’s submissions that the Alleged Agreement was signed by Bento. I conclude that the Alleged Agreement, of which a photocopy has been produced, was created by Canning to defeat Bento’s application before the LTB and is of no probative value whatsoever of any agreement between Canning and Bento.

42The evidence that supports my finding that the Alleged Agreement has no validity is set out below.

(i) No record of Canning’s interest in solicitor’s files

43Canning’s claims that the Alleged Agreement was prepared following Bento’s alleged refusal to allow solicitor Cass to “notarize” a letter that Bento had typed (not produced on this motion) is not supported by any independent evidence. Notably, despite her presence with Bento at lawyer Cass’s office when documents were signed, he had no record of Canning’s unregistered interest in the Property.

44Canning’s explanation for why Bento refused to allow solicitor Cass to “notarize’ an agreement allegedly typed by Bento is confusing. In her examination in chief⁸ at the September 19, 2019 LTB hearing, Canning stated that the Alleged Agreement was a letter created in 2012 when she was moving into the Property. Canning stated that she wanted this document “notarized” by solicitor Cass because she did not trust her sisters. Canning said that Bento did not want it notarized to avoid any paper trail that might reveal the existence of the Property to their sister, Carol-Ann. Canning’s assertion about Bento’s request for secrecy from Carol-Ann appears to conflict with Canning’s affidavit in this motion in which she accuses Bento and Carol-Ann of pressuring Mr. Canning into signing an affidavit stating that the Property was to belong to Bento.

(ii) Discussions in 2018 about a coming to an agreement

45Text messages were exchanged between the parties in 2018 about reaching an agreement whereby Canning would see some money from the sale of the Property. The texts conflict with Canning’s evidence that she and Bento had already entered into the Alleged Agreement in 2012.

46Discussions about reducing an agreement to writing are found in text messages sent by Canning on May 27 and May 31, 2018.⁹ Not only does Canning not mention the Alleged Agreement, but in her email of May 27, Canning states that they “still need to get something on paper about this house”. In those texts, Canning says, in part, “did yal figure out a gameplan yet? We still need to get something on paper about this house bc I have such uncertainty rite now” to which Bento responds, in part “Hey…im really not sure what you are uncertain about that house is mine and yours… if Marc [Bento’s husband] wants to take anything… It would be from my half… lol…dont worry”. In the text exchange of May 30, 2018¹⁰, Canning says that she had thought they had come to an agreement the previous day to which Bento responds by asking if there was a profit on the sale of $90,000 whether Canning expected to receive $60,000 to $70,000 (to repay Canning her monthly payments that had been used to cover the mortgage)¹¹ and concluding by saying she was splitting it 50/50.

47In a text message chain between November 5 and 12, 2018¹², Canning asks Bento if she is going to meet in a lawyer’s office and “sign the paper stating it’s a 50/50 split … I have paid mortgage property tax EVERYTHING I paid for 6 ½ years”. Again, Canning makes no mention of the Alleged Agreement.

48Bento’s evidence was that, in 2018, when she told Canning that she “needed” to sell the Property, Canning became acrimonious toward Bento. Bento attributed this acrimony to Canning’s financial pressures, which led Bento to discuss the possibility that some of the proceeds from the sale of the Property could be used to help Canning.

49Bento states that Canning “pressured her” into drafting an agreement to share some of the proceeds of sale.

50Bento’s evidence is that she capitulated to Canning’s “consistent pressure to commit to a written agreement with respect to” Bento giving Canning some proceeds of the sale of the Property. Bento admits that she typed up a draft agreement on June 14, 2018.¹³ This unsigned agreement reads, in part, that upon the sale of the Property, with the “necessary payments paid fully prior to the division of shared profit, taxes, real estate fees, legal fees, closing costs and any other older monies pertaining to the sale and maintaining of the house, will be divided” $30,067 (down payment) to Bento and $11,170 (down payment) to Canning following which the “remaining equities and profit thereafter, will be divided 50% between…Bento and …Canning”.

51Bento says that she prepared this agreement based on what had been requested by Canning. Bento said she ultimately decided not to sign it because she thought it was overly generous to Canning and did “not reflect the truth of the situation vis-à-vis the Property”.

(iii) Evidence concerning the authenticity of the Alleged Agreement

52Bento says that until the September 2019 LTB hearing, she had not seen the Alleged Agreement and denies that she signed it. No original of the Alleged Agreement has been produced. The Alleged Agreement appears to bear a signature resembling Bento’s, but Bento denies that it is hers. Bento also notes that the Alleged Agreement includes a term not found in the June 14, 2018 draft agreement Bento had prepared, namely, that Canning can remain in the Property until Canning and Bento both agree that it be sold.

53In its Interim Order dated October 10, 2019, the LTB noted that Canning had submitted three versions of the Alleged Agreement: one was undated and purportedly signed by Canning and Bento, one was dated and unsigned and the third undated and unsigned. The LTB noted that whether or not Bento she had signed the Alleged Agreement, it “does not convey an interest in the property, rather it merely makes reference to payments to the Tenant of proceeds upon sale”.¹⁴

54The existence of three versions of the Alleged Agreement is also inconsistent with Canning’s evidence that the Alleged Agreement was handwritten by Canning on the direction of Bento and then signed by both.

Expert Reports

55Both parties obtained expert reports from document examiners to opine on whether the signature on the Alleged Agreement belongs to Bento. In determining what weight to be given to the expert reports filed on this motion for summary judgment, I do exercise the powers available to me under r. 20.04 (2.1).

56In support of her position that the signature on the Alleged Agreement is a forgery, Bento obtained expert reports from two document examiners: a report from Brenda Petty Unlimited, LLC, dated February 13, 2020 and a report of Nathalie A. Bureau, dated February 28, 2020¹⁵. Both experts have acknowledged their duty under rule 53.03¹⁶. Both document examiners conclude that, while the signature on the Alleged Agreement resembles Bento’s signature, it is not Bento’s signature.

57Canning obtained an expert report from G. L. Pitney, Forensic Handwriting Examiner¹⁷. The expert acknowledgement required pursuant to r.53 was not included with the Pitney report. The Pitney report concludes that the signature on the Alleged Agreement was executed by Bento.

58At the hearing, Canning sought to file a second expert report. It was prepared by Kenneth John Davies a “Questioned Documents Examiner”. Bento objected to Canning filing this the Davies report at the hearing as she was outside the court-ordered deadline for filing materials. On that basis, I did not allow the Davies report into evidence.

59While the Davies report was not properly before me on this motion, I do note that the author of the report concluded that it was only within a “reasonable degree of probability” and “weighs in favour 60-70%” that the signature on the Alleged Agreement belonged to Bento. Thus, even if this report had been allowed in evidence, it would only moderately support the position taken by Canning.

60The Petty and Bureau reports contain a more in-depth analysis than used in the Pitney report. Using photo enlargements of each letter examined, the Petty and Bureau reports show how and where comparison Bento signatures differ from the Bento signature on the Alleged Agreement. The Petty report was particularly effective in showing that the “t” in Bento’s name on the Alleged Agreement appears to have been added after the completion of the “o” at the end of Bento’s name, an error that someone signing their own name would be unlikely to make.

61The Bureau report supports a like conclusion, in part, on the basis that the Bento signature on the Alleged Agreement appears to have been created with seven motions, illustrating a lack of fluidity in the writing process.

62The inconsistency of the “t” is also referenced in the Pitney report, which acknowledges that the signature on the Alleged Agreement is inconsistent with three of the 13 comparison signatures. Despite that, Pitney still concludes “with absolute certainty” that the signature on the Alleged Agreement was executed by Bento, a conclusion that is difficult to accept given the obvious inconsistencies.

63The opinions from Petty and Bureau comply with the requirements of r. 53. Both reports contain detailed analysis of the handwriting samples and a clear explanation of the conclusions reached. Overall, I find these reports to be more persuasive than the Pitney report.

64I am mindful that none of the opinions of the handwriting analysts has been tested by cross-examination and, while persuasive, I do not, and need not, rely on the expert opinions filed to be satisfied that Bento did not sign the Alleged Agreement. Instead, I rely on other and compelling evidence put before me to determine that the Alleged Agreement it is not a legitimate document that embodies a valid and enforceable agreement.

(iv) The Alleged Agreement uses the Past Tense

65A further apparent inconsistency in Canning’s evidence respecting when the Alleged Agreement was signed is the use in the Alleged Agreement of the past tense. For example, the Alleged Agreement reads that the Property “was bought”; Mr. Canning and Bento “split the down payment and Amanda Canning payed (sic) closing costs”. While not conclusive on its own, the use of the past tense is somewhat supportive of Bento’s assertion that the Alleged Agreement was created by Canning long after the purchase of the Property in 2012 and, possibly, as Bento suggests, only after Bento brought the LTB proceeding;

Factual Findings

66Based on the ample record before me, and without giving any weight to the expert evidence, I find as a fact that the Alleged Agreement is not a valid document and that it has no bearing on the determination of Canning’s claim to an interest in the Property.

67There is no other evidence that could support Canning’s position on this motion that the parties had agreed that the Property could only be sold when Canning agrees to it. Similarly, there is no basis upon which to find that Canning has any right to control the timing of the sale of the Property or the terms of its sale. To the contrary, the evidence readily supports a finding that Canning is a tenant – a conclusion reached by the LTB, which has jurisdiction to make that finding.

68I also find that:

(1) Bento is the sole registered owner and the sole mortgagor¹⁸ of the Property;

(2) Bento has no less than a 50% beneficial ownership interest in the Property and is entitled to receive no less than 50% of the net sale proceeds of the Property; and

(3) Canning may have a claim to a beneficial ownership in the Property, in an amount to be determined by a trial of that issue. In any event, that interest will not exceed the 50% interest claimed by Canning in her statement of claim.

Order for the sale of the Property

69I find that Bento is entitled to an order for the sale of the Property. To delay the sale of the Property would unfairly prevent Bento from accessing her investment while requiring her to continue to assume the risk and liability of the Property. The risk assumed by Bento and the benefit enjoyed by Canning became particularly apparent in October and November 2018 when Canning failed to make payments in those months and Bento was left to personally ensure that the mortgage was paid. To the extent that the monthly mortgage and property taxes total less than fair market rent, as asserted by Bento, Canning’s continued occupation of the Property is additionally prejudicial to Bento from the perspective of potential lost income.

70While the paper record may not permit me to find, with confidence, whether and/or in what amount Canning is entitled to share in the net sale proceeds of the Property, I am able to conclude, with confidence, that Canning’s interest, if any, is limited to a monetary claim; there is no evidence that I accept, which would allow me to find that Canning has a possessory claim to the Property, nor is such a claim pleaded by Canning.

71I conclude, therefore, that it is equitable and will cause no prejudice to Canning if the Property is sold and 50% of the net sale proceeds are paid into court to be available to Canning, should she succeed in establishing that she has in interest to some, or all, of those net sale proceeds. By contrast, given the evidentiary record before me, delaying the sale of the Property would be inequitable and unfairly prejudicial to Bento.

Trial of an Issue Required

72Notwithstanding that the evidence allowed me to determine that the Alleged Agreement was invalid, there are inconsistencies in the evidence put forth by each of Canning and Bento that leaves me in doubt over whether, and in what amount (if at all), Canning is entitled to share in the net sale proceeds of the Property.

73I have considered Bento’s submissions that agreements respecting property must be reduced to writing and that the text messages fall short of that standard. However, that evidence cannot be ignored especially when the texts are considered in the context of other evidence. For example, the evidence is that Canning gave Bento $11,000 - for what reason or purpose?; Canning was closely involved in the purchase of the Property, including choices related to construction; Bento’s admission that she wanted Canning to have a nice home in which to live with her children; and Mr. Canning’s evidence about the nature of his contribution toward the purchase. In short, the conflicts and inconsistencies in the evidence cannot be resolved on a paper record.

74For that reason, I conclude that a trial is required to determine what amount, if any, Canning is entitled to receive from the net sale proceeds of the Property.

Disposition: Order directing a trial of an issue

75I direct a trial of an issue respecting Canning’s claim to a share of the 50% of the net sale proceeds of the Property to be paid into court. For the purposes of the trial, the findings of fact set out in these reasons shall be considered final and binding upon the parties. However, without otherwise proscribing what evidence the parties may lead, it is my expectation that the evidence at trial will focus on what contributions of money or money’s worth were made by Canning toward the Property and which might support her claim to be entitled to a share of the net sale proceeds of the Property.

Security for Costs

76Bento asked for an order for security for costs. I decline to make that order. I do so because I am not satisfied that Bento has met the test under r.56.01. While there are clearly hurdles to overcome, I do not accept Bento’s submissions that Canning’s claim is frivolous and vexatious. As noted above, I conclude that there is a need for a trial of a issue.

Costs

77Although Bento did not obtain the summary judgment she was seeking, she was successful in obtaining much of the alternate relief she sought. As such, Bento is presumptively entitled to some costs of this motion.

78I would urge the parties to agree on costs but if they are unable to do so, then costs submissions may be made as follows:

1. By January 11, 2021 Bento shall serve and file her written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and

2. Canning shall serve and file her responding costs submissions of no more than three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers, by January 25, 2021.

3. Bento’s reply submissions, if any, are to be served and filed by February 1, 2021 and are not to exceed two pages.

4. If no submissions are received by February 1, 2021, the parties will be deemed to have resolved the issue of the costs and costs will not be determined by me.

Footnotes

1. 1Granted by Order of Nightingale J. dated December 12, 2019.
2. 2R.R.O. 1990, Reg. 194.
3. 3Kode Contracting Ltd. v. B.K. Industrial Power Inc., 2020 ONSC 7354 at para. 9 (citations omitted).
4. 4Kode Contracting, at para. 9, (citations omitted).
5. 5I reserved my ruling on whether to permit Canning to rely on the transcript of Bento’s cross-examination, which was filed outside the time limits prescribed by Parayeski J. I allowed Canning to refer to the transcript in oral submissions and have considered that evidence on this motion.
6. 6Transcript from LTB hearing of September 19, 2019, at p. 43, Motion Record Vol. 2 of 3, Tab 3.
7. 7LTB Transcript, at p. 48.
8. 8Transcript, LTB hearing of September 19, 2019, at pp. 16 – 17.
9. 9Responding Material Volume 1, Tabs 9 and 10.
10. 10Motion Record of the Defendant, January 6, 2020, at Exhibit “G”.
11. 11Bento affidavit, sworn January 5, 2020 at para.16, Motion Record of the Defendant, Tabs 2 and 2G.
12. 12Responding Material Volume 1, Tab 24.
13. 13Bento affidavit sworn March 11, 2020, at para. 20, Exhibit “J’, Motion Record volume 1 of 3.
14. 14Motion Record Vol.1, Tab 2N.
15. 15Bento affidavit sworn March 11, 2020, at para. 31, Exhibits “R’ and “S”, Motion Record volume 1 of 3.
16. 16Rules of Civil Procedure, RRO 1990, Reg. 194.
17. 17Responding Material Volume 2, Tab 43.
18. 18Bento’s father, Carson Canning, is a guarantor on the mortgage.