Court File and Parties

COURT FILE NO.: CV-19-2765 DATE: 20210324

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HOMI BILLIMORIA Plaintiff

Michael S. Deverett, for the Plaintiff

– and –

MAHARUKH MISTRY and FIROZE MISTRY Defendants

Marek S. Malicki and Jessica Pliszka, for the Defendants

HEARD: November 16, 17, 18, December 16, 2020

REASONS FOR JUDGMENT

J.M. Woollcombe J.

Introduction

1This case is about ownership of a property located at 347 Glenn Hawthorne Boulevard, Mississauga (“the property”). The property was purchased by the plaintiff and defendants jointly in 1987. They took title as tenants in common, and are currently registered as tenants in common with 50 percent owned by the plaintiff and the other 50 percent by the defendants. The defendants wish to sell the property and seek an order for partition and sale. The plaintiff, who has lived at the property since 1991, asserts that as a result of his exclusive possession of it, and the operation of the Real Property Limitations Act, R.S.O. 1980, c. L.15 (“RPLA”), the defendants’ right to make claims respecting the property has expired. As a result, the plaintiff submits that their application for partition and sale should be dismissed and that he should be declared the sole owner of the property.

2The trial before me proceeded by way of Zoom hearing with three days of evidence, written submissions, and then oral submissions.

3The issues to be decided are as follows:

i) Should the plaintiff be declared, on the basis of the RPLA, the sole owner of the property at 347 Glenn Hawthorne Blvd., Mississauga?

ii) If not, is there any other basis upon which the plaintiff should be declared sole owner (including proprietary estoppel, unconscionability, unjust enrichment or constructive trust)?

iii) Should an order be made under the Partition Act for the property to be sold?

iv) If the property is ordered sold, how should the proceeds of the sale be distributed?

The Relevant Facts

4The evidence includes affidavits, with attachments, filed by each of the plaintiff and the two defendants. It was agreed that the affidavits would be the witnesses’ evidence in-chief. Both the plaintiff and Ms. Mistry were cross-examined. Counsel agree that the evidence of Ms. Mistry, who has a better recollection of events than her husband, is binding on her husband, Mr. Mistry. He was not cross-examined.

5Many of the facts are not disputed.

6The plaintiff, Homi Billimoria, is 83 years old. The defendants are a married couple: Firoze Mistry is 83 years old; Maharukh Mistry is 72. The plaintiff and defendants met in the early 1970’s. They became close friends, with the plaintiff frequently visiting the defendants’ home and the three of them travelling together. They developed a trusting relationship.

The jointly owned properties other than the subject property

7In the 1980’s, the plaintiff and defendants began doing business together. They bought properties jointly and then sold them for a profit.

8The plaintiff and defendants bought six properties together, including the subject property. For each of them, the plaintiff was registered on title as a 50 percent owner. Title for the other 50 percent was in the name of either the defendants jointly or Mr. Mistry. The history of the properties that were jointly held by the parties is relevant in two ways. First, it reveals a pattern in their business arrangement. Second, there are claims made about how the financial arrangements in respect of these properties affect the claims made for the subject property. As a result, I will summarize the evidence respecting these properties.

9I observe that there is a real absence of documentation supporting many of the claims made by both sides. A large number of what would be important and relevant documents have been lost or destroyed. Little is offered by way of explanation for this, although it may well be a function of the passage of time, many of the relevant events having occurred more than 30 years ago.

10The evidence of the plaintiff was that all of the documentation relating to the jointly owned properties was kept by the defendants and that he never received copies of any of it. He casts himself as effectively having been at the mercy of the defendants, and takes no responsibility for any of the documents as he says that they were never provided to him. I find this difficult to accept. It seems to me that had he wanted the documents he now blames the defendants for losing, he could have taken steps, years ago, to obtain them. I note that there are also many missing records of his, that he should have, and which I would have expected him to produce. He has not done so.

11Ms. Mistry acknowledges having had many of the relevant documents, but says that it is so long ago that she no longer has most of them. She was able to produce only selective documents and asserts that they prove parts of her claims. It is unexplained why she has some documents and appears either not to have, or not to have produced, others. As I will discuss, it is my view that the documents that were produced often do not prove what she suggests they do.

12I turn now to the six properties bought by the parties.

13In 1986, the plaintiff and Mr. Mistry bought a condominium at 300 Webb Drive, Mississauga and were registered as joint owners. The property took a couple of years to build. They took possession in 1988 or 1989. The plaintiff says that he paid all of the maintenance costs at this property and that he lived at the condominium for a year and a half. It was sold in 1990.

14According to the plaintiff, they made a profit of $50,000, which was split evenly, with the plaintiff receiving half and the defendants sharing the other half. Ms. Mistry did not recall the amount of profit they made. There is no documentation relating to this transaction before me.

15In 1987, the plaintiff and Mr. Mystry purchased a property at 50 Kingsbridge Garden. They never took actual possession of this property and sold it to the builder. Ms. Mistry says that the profit was $33,000. The plaintiff does not recall what profit was made on this transaction. He says that while they were co-owners, all of the profit was kept by the defendants. There are no documents relating to this property or the transaction before me.

16In about 1987, the plaintiff and defendants purchased a property at 50 Eglinton Ave. West in Mississauga. Title was registered with the plaintiff as a 50 percent owner and the defendants jointly as the other 50 percent owner. The property was rented out. Ms. Mistry testified that the tenant paid rent by post dated cheques, which were deposited into a joint account held by the parties for the property. She says that the mortgage payments were split evenly by the plaintiff and defendants and paid from the rental income, as were the taxes, insurance payments and maintenance costs. The property was sold in 2003. Ms. Mistry did not recall the purchase or sale price. She testified that the profit from this sale was very minor.

17The plaintiff says that all of the rental income earned at this property was kept by the defendants and that he never received it or an accounting for it. He testified that when this property was sold, there was $20,000 profit and that he and Mr. Mistry split it, each receiving $10,000.

18The next property the plaintiff and Mr. Mistry bought was at 880 Dundas Street in 1987 or 1988. Ownership was registered in both of their names. Ms. Mistry does not know the purchase price. It was her evidence that the costs of the property, including the mortgage, taxes, insurance and maintenance expenses, were shared with 50 percent paid by each by the plaintiff and defendants. She said that the rent by the tenant was paid to them by post-dated cheques. Ms. Mistry did not know the sale price but believed the property was sold in 1989 and that they made about $22,000 profit. The plaintiff says that the profit was closer to $7,500 and that it was used to purchase another property, although he was not sure which one. There are no documents relating to this property or transaction before me.

19In 1989, the plaintiff and Mr. Mistry purchased a property at 202 Burnamthorpe, which was part of a condominium project called Kaneff in Mississauga. The plaintiff says that he paid the entire deposit of $38,235 for this property. This property was never built. When the project was canceled, the plaintiff says he received a cheque in both his name and Mr. Mistry’s for $40,000, representing the deposit plus interest. The plaintiff says that he gave $20,000 of that to Mr. Mistry. He says that this was a mistake as he should have kept it, having paid the deposit. He testified that he had never said anything about this to the defendants and never asked for the money back.

20The defendants say that the deposit cheque issued back to them was made out to the plaintiff and Mr. Mistry, but that the plaintiff took the money because he had paid the deposit. When it was put to Ms. Mistry that the plaintiff had paid half to her husband, she testified that she did not recall this. There are no documents relating to this property or transaction before me.

21As I have said, there is no documentary evidence before the court respecting these properties. While there seems to be no issue that they were all bought and sold by the parties as partners, there are no documents reflecting who paid what or who received what.

22On the basis of the evidence about these properties, evidence that is often in conflict, I cannot conclude that there were debts owing between the parties as a result of the purchases and sales.

23The plaintiff suggests, for instance, that he improperly gave to Mr. Mistry an extra $20,000 from the cheque issued for the Kaneff property. I do not accept this as it would be unlikely to have happened, given their business relationship, and even more unlikely that had it happened, it would never have been raised by the plaintiff.

24Similarly, I reject the plaintiff’s position that the defendants collected and kept for themselves the rental income between 1987 or 1988 and 2003 from 50 Eglinton Avenue West. Ms. Mistry’s evidence that a joint account was used for the expenses and income from that property made considerably more sense. Had the plaintiff not received any accounting for the rent, he surely would have taken some steps to rectify the situation over that ten-year period, or when the property was sold. His version of events was not believable.

25What is important about this history, in my view, is that the parties had a well-established trusting friendship and that they bought and sold properties in order to make a profit, which they shared equally and fairly.

The subject property

26The subject property was purchased on March 7, 1988 for $171,900 by the plaintiff and defendants. The Transfer / Deed of Land document lists as the transferees the plaintiff and Maharukh Mistry. They took title as tenants in common. A deposit of $30,000 was paid by the purchasers.

27The 1988 Mortgage Statement in the names of the plaintiff and Ms. Mistry indicates that the mortgage was for $129,092.98.

28There is a dispute about who paid the deposit.

29The plaintiff says that he paid his half, or $15,000. In his affidavit, he said that the other $15,000 was paid from funds owed to him by the defendants from their other real estate transactions including $18,061.77 from the Kaneff property, the rental income from 50 Eglinton Ave West and $7,800 rental income from the subject property. Under cross-examination, the plaintiff said that he paid his half and he does not know what the defendants paid.

30The defendants say that they paid $15,000, their half of the deposit.

31It appears to be agreed that the plaintiff paid his half, or a $15,000 deposit. Who paid the other $15,000 is disputed. There is no documentation whatsoever to assist in this determination. Accordingly, I must draw conclusions from the evidence respecting the parties’ practices and from any testimony they gave that I find to be reliable.

32The lease documents filed indicate that the subject property was rented by both the plaintiff and Mr. Mistry for one year from June 1, 1988 to May 31, 1989 with monthly rent of $1,300. There are copies of some rent cheques that are made out to the plaintiff and Mr. Mistry. The tenant apparently moved out before the termination of the agreement. The plaintiff says that there was a total of $7,800 collected in rent and that the defendants never accounted for it to him.

33The documentation provided by the defendants indicates that in the period from 1988 through to early 1990, bills for such things as property taxes, hydro and gas were in the names of both the plaintiff and Ms. Mistry. The bills are stamped as paid, but there is no documentation respecting by whom. Ms. Mistry says that initially, the defendants paid the property tax, hydro, gas bills and home insurance. The plaintiff says that prior to 1991, some of the expenses may have been paid from a joint account at the Bank of Nova Scotia (“BNS”) but that any expenses paid by the defendants were offset by the fact that they received the entire $7,800 rent.

34After the tenants vacated it, the plaintiff and defendants were unable to rent the property.

35The plaintiff says that a year after the tenants moved out of the property, he moved into it. The defendants agree that when they were unable to rent it or sell it, they agreed that the plaintiff would move in.

36The plaintiff says that after moving in, he paid the mortgage (of $1,446) and taxes (of $200) each month. He says that he also bought the appliances. He did not pay rent. The plaintiff agreed that he knew that the defendants were registered owners when they bought the property. He says that in 1991, he informed the defendants that he had decided to stay at the property from that date onwards. He says he has had exclusive possession of the property since that time. He believes that he became the owner when he moved in in 1991 because he paid the mortgage and taxes. He never advised the defendants in writing that he believed it was his house and did not recall them ever saying that it was his house.

37The defendants say that when the plaintiff moved into the home, they had a verbal agreement that he would live there and make mortgage and property tax payments in lieu of paying occupational rent. They say that it was agreed that the property would eventually be sold, but that they were content to have the plaintiff live there and pay the carrying costs of the property.

38The parcel registry indicates that on January 31, 1992, Ms. Mistry transferred her share of the ownership to her and her husband. The plaintiff initially said he did not recall this, but then agreed that he had not objected to this because it was Ms. Mistry’s half to do with as she wished. The parties agree that Mr. Mistry’s name had been mistakenly omitted from title when the property was purchased, and that this was corrected with everyone’s agreement in 1992.

39When the jointly owned property at 50 Eglinton was sold in October 2003, the $152,713.25 in proceeds from that sale was deposited into a TD Canada Trust account. The defendants have provided evidence of mortgage payments for the subject property being made from this account on October 3, 2003 ($19,500), November 3, 2003 ($1,810), December 1, 2003 ($1,810), January 2, 2004 ($1,810), Jan. 7, 2004 ($19,500), March 1, 2004 ($1,810), April 1, 2004 ($1,810), and May 3, 2004 ($1,810). The Mortgage Statement provided indicates that there was an outstanding mortgage of $62,683.28 as of December 3, 2003 and that this mortgage was paid off by May 1, 2004.

40The documents provided leave a number of unanswered questions. Whereas the $152,713.25 was deposited into the TD Canada Trust Account on October 3, 2003, it is far from clear where it went after that. As of October 3, 2003, this account had a balance of $133,234.66. By October 31, 2003, the account balance was reduced to $65,665.94. There is no evidence as to who withdrew that money (roughly half) or why. This was not covered in the testimony.

41The plaintiff says that while he has lived at the property, he has paid all costs to maintain it including paying property taxes, mortgage, insurance and repairs. In his affidavit, he provides some specific amounts that he says he paid for various home improvements between 1990 and 2018. He has provided no receipts for any expenses paid by him. While he says that some of these were paid from a joint BNS account, he asserts that any amounts paid by the defendants were offset by the $7,800 rental income they received for the property before he moved in.

42There is no documentary evidence before me respecting what was paid by the plaintiff in mortgage, property taxes, insurance or maintenance.

43It is the plaintiff’s evidence that he believes he became the sole owner of the property in 1991. Asked whether he had ever told the defendants this, he did not know. He agrees it is possible that he never told them.

44The plaintiff testified that after 1991, Mr. Mistry came to the property only once in the first five years after he moved in. Mr. Mistry told the plaintiff that he wished to sell the property. According to the plaintiff, he told Mr. Mistry that he did not want to sell it and that he had paid all the expenses and lived there and that it was his house. The plaintiff said that Mr. Mistry sent an agent to the house and the agent provided the plaintiff with a selling price. The plaintiff said that he sent the agent away and then told Mr. Mistry he did not want to sell.

45The mortgage on the property was discharged on April 29, 2014. There is no evidence as to whose name(s) that mortgage was in and whether or not it continued to be in the parties names jointly, but I can infer that it is highly unlikely that a mortgage registered on title would not include the names of each of the registered owners.

Title transfer of the subject property

46The Parcel Register for the subject property indicates that on July 28, 2016, the plaintiff’s interest in the property was transferred to Armin Mistry and they were registered as joint tenants. Armin Mistry is unrelated to the defendants. On January 26, 2017, Armin Mistry’s brother was registered as a trustee for both the plaintiff and Armin Mistry’s interest in the property.

47The defendants were unaware of the plaintiff doing this and did not consent.

48The plaintiff testified that Armin Mistry tricked him to transfer the property to her and that it was then transferred to her brother. When he realized, he said that he was worried. He agreed, under cross-examination, that he and the defendants went to see a lawyer and requested that their names be put back on title.

49Filed as an exhibit to Mr. Mistry’s affidavit is a Direction, dated May 22, 2018, to Suman Umesh Ahuja, whom the parties agree is a lawyer. It is signed by the plaintiff and defendants. It says:

We, the undersigned, also request that you act on our behalf to contact the land registry office for the purposes of restoring the names of Maharukh Mistry and Firoze Mistry where their names are currently missing on the record of titles for the above mentioned property located at 347 Glenn Hawthorne Boulevard, Mississauga, Ontario L5R 2N2.

We, the undersigned, feel the recent ownership title transfers for Home Billimoria in July 28, 2016 and in January 26, 2017 were fraudulently completed and all of the undersigned parties, Maharukh Mistry, Firoze Mistry and Home Billimoria, wish to restore the title ownership back to the status prior to July 28, 2016.

50The plaintiff agrees that he signed this document to restore the defendants’ names on title. He testified that this was his mistake and that they should not have been owners when he paid for everything for all these years.

51In re-examination, the plaintiff testified that he did not really understand the document that he signed.

52It is very unclear to me how this highly unusual change in title could have taken place without the parties’ involvement.

The defendants request to sell the property

53The defendants say that as a result of the plaintiff transferring his interest in title to the property without their knowledge or consent, they lost trust in him and believed that it would be best to sell the property.

54On September 18, 2018, counsel for the defendants wrote to the plaintiff and explained that as a result of the change in title that had been made by him without their knowledge and consent, the defendants were seeking sale of the property and wished to see the Trust Agreement.

55On January 7, 2019, counsel for the plaintiff registered a charge in the amount of $226,000 on the property without the defendants’ knowledge or consent.

56On August 2, 2019, the plaintiff served the defendants’ counsel with a Statement of Claim, issued July 2, 2019.

Positions of the Parties

57In short, it is the plaintiff’s position that the defendants are statute barred from bringing any civil proceeding to recover or make any claim against the subject property. The plaintiff seeks an order vesting title in the subject property in him as the sole owner of the property and deleting the defendants as registered owners of the property. He bases this on the operation of ss. 4, 5, and 15 of the RPLA.

58In the alternative, the plaintiff relies on the principles of proprietary estoppel, unconscionability, unjust enrichment and constructive trust to support his position that sole title of the property should be granted to him. In the further alternative, he submits that if an order is made for partition and sale of the property, there should be an unequal division of proceeds as between the defendants and him.

59The defendants’ position is that they are joint owners of the property and that the RPLA does not apply to joint owners. They seek an order for partition and sale under the Partition Act. Initially, they requested that the proceeds of the sale be split equally with the plaintiff receiving 50 percent and them receiving the other 50 percent. In addition, the defendants initially sought for an order that the plaintiff pay to them occupation rent of $2,500 per month, less carrying costs, for the period he has resided at the property.

60I understand from their closing submissions that the defendants no longer seek an order that the plaintiff pay occupation rent. They also concede that if the property were sold, it would be reasonable to award to the plaintiff at least 50 percent of the proceeds and, in light of the payments made by him over the years, perhaps something greater than 50 percent of the proceeds. They seek an order that the charge on registered on title in favour of the plaintiff’s counsel does not bind their interest in the property.

Analysis

Should the plaintiff be declared, on the basis of the RPLA, the sole owner of the subject property?

61The first issue to be determined is whether and how the RPLA impacts on ownership of the subject property.

62For ease of reference, I reproduce the relevant sections of the RPLA, including ss. 4, 5, and 15, the legislation which governs adverse possession claims in Ontario:

4 No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it. R.S.O. 1990, c. L.15, s. 4.

5 (1) Where the person claiming such land or rent, or some person through whom that person claims, has, in respect of the estate or interest claimed, been in possession or in receipt of the profits of the land, or in receipt of the rent, and has, while entitled thereto, been dispossessed, or has discontinued such possession or receipt, the right to make an entry or distress or bring an action to recover the land or rent shall be deemed to have first accrued at the time of the dispossession or discontinuance of possession, or at the last time at which any such profits or rent were so received. R.S.O. 1990, c. L.15, s. 5 (1).

15 At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished. R.S.O. 1990, c. L.15, s. 15.

63Section 4 of the RPLA establishes a 10-year limitation period for a dispossessed owner to bring an action to recover possession, once the right to bring the action has accrued. Section 5 is concerned with situations in which the holder of the paper title and has been dispossessed or has discontinued possession. It provides that the right to bring an action begins at the time of dispossession or discontinuance of possession. Section 15 provides that if the dispossessed owner has not attempted to recover the land within ten years after the right to bring the action accrued, the right and title of the owner of the land is extinguished: Osman v. Heath, 2016 ONSC 4812 at para. 49.

64The principals respecting adverse possession are well-established in the jurisprudence. In Nelson (City) v. Mowatt, 2017 SCC 8 at para. 17, Brown J. explained that adverse possession is the common law doctrine “by which the right of a prior possessor off land, typically the holder of the registered title and therefore sometimes referred to as the “true owner”, may be displaced by a trespasser whose possession of the land goes unchallenged for a prescribed period of time”.

65This case here does not involve a trespasser. It involves one co-owner and possessor of the land who seeks to displace ownership of another co-owner who is said to have been dispossessed of the property. I do not accept the defendants’ position that the RPLA is inapplicable to situations of co-ownership. I see no legal impediment to one co-owner making a claim, under this legislation, that his or her co-owner has been dispossessed of the property for ten years and, as a result, is precluded from making a claim to it because his or her rights over the land were extinguished.

66The real issue here is whether the plaintiff has met his burden of showing that the requirements for the defendants’ title to be extinguished have been met. In my view, he has not.

67As was explained by the Court of Appeal in Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563; leave to appeal to the SCC refused [1983] S.C.C.A. No. 232 at para. 14:

Whether a prescriptive title has been acquired is a question of fact which must be determined in the light of the circumstances of each case…

... a person claiming a possessory title as against the legal owner must not only establish actual possession for the statutory period but he must establish that such possession was with the intention of excluding the true owner and that the true owner's possession was effectively excluded for the statutory period.

It is clear that a claimant to a possessory title throughout the statutory period must have:

(1) had actual possession;

(2) had the intention of excluding the true owner from possession, and

(3) effectively excluded the true owner from possession.

68See also: Vivekanandan v. Terzian, 2020 ONCA 110 at para. 21; Post Estate (Trustee of) v. Hamilton, 2015 ONSC 5252 at para. 9.

69The requirement of “actual possession” means that the plaintiff must establish that over a 10-year period, his acts of possession were “open, notorious, peaceful, adverse, exclusive, actual and continuous”: Teis v. Ancaster (Town), 1997 ONCA 1688 at para. 13.

70In Plant v. Plant, 1993 CarswellOnt 342 (U.F.C.), upon which the plaintiff relies, Mendes da Costa J. observed that the quality of possession described in Ontario legislation had been described as “actual”, “continuous”, “open”, “visible”, “notorious” and “exclusive”.

71These requirements for actual possession in this context make sense. As Laskin J.A. explained in Teis v. Ancaster (Town), at paras. 14-16, there are two reasons why possession must be open and notorious, and not clandestine: “First, open possession shows that the claimant is using the property as an owner might. Second, open possession puts the true owner on notice that the statutory period has begun to run.” Laskin J.A. explained that the reason why an adverse possessor is able to take ownership is because of the true owner’s failure to take action within the limitation period. It is only fair that time cannot run against the paper owner unless the delay can fairly be held against the owner. The same reasoning applies when one co-owner says that the time limit has expired for the other co-owner to take action.

72The plaintiff submits that the facts in Plant v. Plant and Post Estate (Trustee of) v. Hamilton are similar and drive the result in this case. I have carefully reviewed each of these decisions. Each is an example of one co-owner seeking exclusive title to property as a result of adverse possession.

73In Plant v. Plant, spouses had purchased a farm as joint tenants in 1949. They separated in 1976 and the husband left the property. In 1976, the joint tenancy was severed. It was agreed that thereafter, the parties held the property as tenants in common in equal shares. The ex-husband died in 1988. It was the applicant wife’s position that at the time of his death, her former’s husband’s interest in the land had been extinguished by operation of the Limitations Act, R.S.O. 1990, c. L. 15. The respondent ex-husband’s estate took the position that his share of the tenancy in common passed through his estate.

74The application judge recognized that the issue was whether or not the husband had been dispossessed of the farm, an issue that depended on the facts before him. In deciding that issue, he noted that after separation, the applicant remained on the property and paid all expenses including mortgage, property taxes, utilities, property insurance, costs of repairs, improvements and maintenance, except for one property tax payment. She never heard from or saw her ex-husband after he left. She occupied the farm and exercised ordinary rights of ownership. She testified that had he returned to the property, she would have called the police. The application judge found as a fact that “she intended to alone enjoy the land” and held that the applicant had dispossessed her husband of the land ten years after their separation, and prior to his death. As a result she became the sole owner of the property by operation of the Limitations Act.

75The plaintiff also relies on Post Estate (Trustee of) v. Hamilton. In that case, common law partners bought a home in 1980 as joint tenants. Their relationship deteriorated and the respondent moved out in 1983. The applicant never heard from her again. He lived on the property and paid all of the carrying and maintenance costs until his death in 2014. His estate wished to sell the property, but discovered that the respondent’s name was on title as a joint tenant. Unable to locate the respondent, the estate sought an order that prior to his death, Mr. Post had acquired sole title by possession.

76The application judge noted that the Masidon Investments test required that there be actual possession for the statutory period, that it be with the intention of excluding from possession the owner and that there be discontinuation of possession by the owner for the statutory period. Given the actual possession for 32 years, the application judge concluded that the fact that Mr. Post had paid all expenses, made all mortgage payments, renewed the mortgage without Ms. Hamilton’s signature or agreement and was shown on the MPAC records as the sole owner all suggested that he had met his onus of demonstrating an intention to exercise exclusive possession. As a result, his estate was declared the legal and beneficial owner of the property.

77In my view, the plaintiff in this case has not met his burden of establishing that he had actual possession of the property as that term is correctly understood. I reach that view for the following reasons:

a) The business history suggests joint ownership

78First, I find, based on the manner in which the plaintiff and defendants’ business agreement worked, that the property was jointly purchased, with the intention that it be an investment property, similar to the ones that they had previously purchased. The clear expectation of the plaintiff and the defendants at the time the property was purchased was that it would be jointly owned and, when it was sold, any profits would be divided between them. I find that the defendants continued to hold that reasonable expectation and that nothing was done by the plaintiff that should have caused them to change that expectation.

b) The deposit was paid jointly

79Second, I find that that when the property was purchased, the deposit was paid by both parties. It is undisputed that the plaintiff paid his $15,000 share. He disputes the evidence of the defendants that they paid the other $15,000. The documents do not answer this question. This can only be determined by considering the credibility of the evidence of the plaintiff and defendants.

80In my view, the plaintiff’s evidence that he was repeatedly short-changed in his dealings with the defendants, a position he also advances in respect of payment of the deposit on the subject property, makes no sense. If it were true, why would he have continued in business with them? For example, the plaintiff testified that when the deposit plus interest was returned to them for the Kaneff project, and he had paid the deposit, he kept only half of the $40,000 and, apparently by mistake, gave $20,000 that was rightfully his to Mr. Mistry. This makes no sense and he offered no explanation for this. The plaintiff repeatedly sought to disparage the defendants in a manner that defied belief and made no sense. It caused me to doubt that his evidence was truthful.

81Furthermore, the plaintiff’s evidence that the other $15,000 deposit was paid, in part, from the $7,800 rental income that the property generated after its purchase, seemed highly illogical to me. Surely the $15,000 deposit was paid when the property was purchased. While I understand that the plaintiff’s position is that there was never a proper accounting by the defendants of the $7,800 in rental income they are said to have collected, I fail to see how this means that that money earned after the purchase had been used to pay their share of the deposit, This made no sense.

82In my view, the plaintiff’s evidence about who paid the other $15,000 deposit is not credible or believable.

83The plaintiff suggests that Ms. Mistry’s evidence is not credible because:

• she has inexplicably lost documents or refused to produce them;
• some of the bank documents she has produced were inexplicably redacted;
• she did not understand the legal meaning of some of the terms used in her affidavit;
• she was inconsistent about whether the agreement she and her husband had with the plaintiff were that his mortgage and property taxes were in lieu of occupation rent, about the specifics of their discussions and about why she would now be claiming occupation rent if the agreement had been that his payments were in lieu of rent.

84I acknowledge that there were many challenges to Ms. Mistry’s credibility. Some seemed far more important than others. For instance, I view the fact that she did not understand the legal meaning of some of the terms in her affidavit as insignificant. It is obvious that her counsel assisted in preparing the document, as would be expected. To attempt to impeach her and to try to undermine her credibility on the basis that she was unable to offer a legal understanding of the terms “occupation rent” or “substantial indemnity costs”, as counsel did, did not lead me to find her any less credible, and was unhelpful.

85Further, I am not prepared to make much about the lost documents. There is fault on both sides for this. While I cannot accept the plaintiff’s claim that he is blameless because he never was given any documents, nor am I confident that the defendants showed diligence in maintaining the appropriate documents that could have supported their position. Generally, I do not think it is appropriate to base credibility findings in this case on the fact that documents are missing. As I will explain, however, I am prepared to draw an adverse inference against the defendants for one of the redacted documents. I will also address in more detail the important issue of why I accept Ms. Mistry’s evidence about the verbal agreement made when the plaintiff moved into the subject property below, notwithstanding the alleged inconsistencies in her evidence and notwithstanding the failure to ever commit this agreement to writing.

86In summary, however, I accept Ms. Mistry’s evidence about the defendants having paid 50 percent of the deposit on the property. It makes much more sense to conclude that, as they had with most of their other business arrangements, each co-owner paid the deposit and each co-owner took a 50 percent ownership interest. As I have indicated, the property was bought, as the other properties had been and continued to be, as an investment that was to later be sold for a profit. The plaintiff and defendants each were put on title as tenants in common.

c) The parties had an agreement about the plaintiff living at the property

87Third, I find that while the property was initially purchased as an investment, the parties subsequently entered into a mutually agreed upon arrangement that the plaintiff would live there until the property was sold. At the time they entered into their agreement, no one considered or anticipated that this arrangement would last more than 30 years.

88In the first few years of ownership of the property, it is clear that both sides intended to use it as an investment. It was rented, albeit for less than the carrying costs. When the lease was terminated by the tenant, the parties jointly tried to re-coup their losses. They then sought a further tenant. Mr. Mistry’s unchallenged affidavit evidence is that they also tried to sell it. It made sense that, in the absence of being able to sell it or lease it, that the plaintiff’s offer to move in would be agreed upon by the parties. This was what had happened in the past with the Webb condominium, which was sold in 1990, and in which the plaintiff had lived for a year and a half prior to its sale.

89I accept the defendants’ evidence that at the time the plaintiff moved into the subject property, there was an agreement that the plaintiff would live there and pay the mortgage and property tax and that at some point that understanding came to include all of the maintenance and carrying costs.

90The plaintiff says that he told the defendants he was moving in and that Mr. Mistry gave him the key and that he paid all of the expenses from that point forward. He did not testify that there was any agreement that he would become the owner as of the date he moved in. But his evidence is that that is what he believes happened.

91Ms. Mistry was somewhat inconsistent as to the details of the arrangement. I think this is because it was never recorded in writing and was, instead, an agreement reached informally between friends who trusted each other. There was no need to put the agreement in writing because they had a high level of trust between them. Ms. Mistry was inconsistent about the details of the agreement that was reached. She was inconsistent about exactly what expenses the plaintiff was to pay. She was inconsistent about whether his payments were instead of rent. She was clear, however, that her husband had wanted to sell the property, but that because the plaintiff wanted to stay, they had agreed that he could. She testified that the plaintiff told them that they would each receive 50 percent of the proceeds when it was sold. It was her understanding that the sale would only happen when they all agreed that it should proceed.

92I reject the plaintiff’s suggestion that there was no agreement that he could live at the property and pay the expenses. Such an agreement makes far more sense than his suggestion that he would move in and the property just became his.

93Despite what I find are relatively minor inconsistencies in Ms. Mistry’s evidence, the essence of what I find was agreed upon is this:

• The parties would continue to co-own the property;
• The plaintiff would carry the major costs for the property including the mortgage, property taxes and upkeep;
• The plaintiff would not pay any other rent;
• At some point, when they all agreed, the property would be sold.

94Accordingly, I find that at the point at which the plaintiff moved into the property, he did so with the defendants’ agreement and consent. They were not “dispossessed” of the property. They agreed that he would live there and pay the carrying costs. They certainly expected that they would remain on title as owners. This agreement is a critical fact distinguishing this case from those such as Plant v. Plant and Post Estate (Trustee of) v. Hamilton, Post, upon which the plaintiff relies.

95I do not accept that the plaintiff ever told the defendants that he viewed the property as his. Had he done so, I am confident that they would have rejected his suggestion. Certainly, as I have indicated his suggestion that the property was his alone as of 1991 makes no sense.

d) The evidence after the plaintiff moved in is inconsistent with him dispossessing the defendants of the property

96Moreover, the evidence suggests that after the plaintiff moved into the property, the parties never conducted themselves as though the defendants had been dispossessed from it.

97First, it is significant that the parcel registry shows that on January 31, 1992, after the plaintiff was living at the property, Ms. Mistry transferred her share of the ownership to her and her husband. The plaintiff agreed that he made no objection to this “correction”. Agreeing to this change significantly undermines his claim that he viewed himself as the sole owner of the property in 1991. If he had, why would he have permitted the change sought by the defendants?

98Second, it is clear that at some point after the plaintiff moved in, Mr. Mistry wanted to sell the property and that an agent spoke to the plaintiff about this. Again, this suggests that the defendants did not believe that they were dispossessed owners.

99Third, the mortgage and bank documents suggest that the defendants continued to view themselves as owners of the property after the plaintiff moved in and throughout the time, until at least until 2004. Indeed, they may well have paid part of the principal on the mortgage. I reach that view because after the 50 Eglinton Avenue property was sold on October 1, 2003, $152,713.25 was deposited into the TD Canada Trust account that was used to pay the subject property mortgage. On October 3, 2003, a $19,500 mortgage payment was made for the subject property, appearing to have been made from the sale proceeds of 50 Eglinton. This suggests that the $19,500 came from joint proceeds.

100There is no question that in the period after this, about half of the remaining proceeds were removed from the TD Canada Trust account. The bank documents provided were redacted by counsel for the defendants. The only reason for doing so would have been to conceal from me the fact that the defendants withdrew these funds. It may well be that rather than having the mortgage continued to be paid from the joint proceeds, they decided to remove their remaining share of the proceeds, though it is difficult to say for sure.

101The balance of the TD mortgage on the property, which was $62,683.28 as of January 1, 2004, was paid in full between January 1 and May 1, 2004. Significantly, at this time, all three names of the parties remained on the mortgage. The address to which the bank was sending the documents was 4962 Southampton Drive, the address of the defendants. Both these facts suggest that everyone continued to understand this was a co-ownership situation with joint responsibility for the mortgage. While the plaintiff may have been paying most of the mortgage, he did not have the mortgage transferred to his name, as one would expect a sole owner to do.

102The defendants say that the fact that mortgage payments continued to be made from the TD Canada Trust account suggests that the defendants were paying the mortgage between October 3, 2003 and May 7, 2004. Given the fact that half of the proceeds from 50 Eglinton Avenue were taken from the TD Canada Trust account, and that this is unexplained, I cannot conclude that the money remaining in the account and which was used to make these mortgage payments was the defendants’.

103As a result, I cannot tell who made these mortgage payments. There were two significant payments of principal over 2004: one on January 7, 2004 for $19,500 and the second on May 1, 2004 for the outstanding principal of $35,260.71. There is no evidence about who made these payments or about any subsequent mortgage on the property taken after this mortgage was paid off in May, 2004.

104Viewed as a whole, the mortgage documents suggest that the plaintiff made most of the mortgage payments, but that the defendants, consistent with remaining as owners, continued to hold the mortgage jointly in their names and contributed to the $19,500 principal re-payment in October 2003. This, of course, distinguishes this case from that facts in Post Estate (Trustee of) v. Hamilton, where the dispossessed party was not on the ongoing mortgages or making mortgage payments.

105There is no evidence about how the mortgage that was held on the property after the May 1, 2004 was paid in full. Presumably, had the plaintiff held this mortgage in his name alone, he would have produced documents to show this. He did not so. As indicated, it would be highly unusual for a mortgage to be registered that did not bind all owners of that property.

106Finally, the events of 2016 to 2018 respecting changes in the title reinforce the defendants’ position that the plaintiff had never dispossessed them as owners. After the July 26, 2016 changes in title, which the plaintiff says were done without his consent, the plaintiff and defendants jointly retained counsel. Together, they signed a Direction authorizing the restoration of their three names to title. I reject the plaintiff’s evidence that he did not understand what this was about. In my view, had he actually believed that the property was his, and that he had dispossessed the defendants of their right to it, he would never have agreed to restoring their names on title. His decision to do so, in my view, further and significantly undermines his evidence that he believed he was the owner.

107Moreover, the defendants’ action in 2018 in signing this Direction reinforces that they never perceived themselves as dispossessed owners against whom any limitation period to make a claim would be running. To the contrary, they continued to view it is important that they remain on title as owners in order to protect what they perceived to be their valid ownership. Fairness dictates that limitation periods not run against those who are unaware that they have been dispossessed of their land. There is no basis to suggest that the defendants were ever on notice that they had been dispossessed.

e) Conclusion

108I accept that the plaintiff has lived at the subject property since 1991. I also accept that, except for the joint proceeds of 50 Eglinton Avenue that appear to have been used to pay a portion of the mortgage principal, he has, while he has lived at the property, paid the costs to maintain it including paying property taxes, mortgage, insurance, maintenance and repairs. In some respects, he has been able to continue living on the property like an owner of the property. He has had effective control over the property and has paid for its upkeep. He has controlled who came and went from the property. The defendants appear to have gone to the property rarely, if at all. But none of this leads to the plaintiff necessarily dispossessing the defendants of the property and becoming the sole owner.

109In my view, the plaintiff’s claim of exclusive ownership because of the operation of the RPLA fails because he has not established that the defendants were “dispossessed” of the property as that term is properly understood. Instead, on the basis of the evidence as a whole, I find that the plaintiff lived at the property with the consent of the defendants, in accordance with an agreement that he do so on a long-term basis and without any intention that doing so would or could lead to their being displaced as co-owners. He paid the expenses to maintain the property and they forewent collecting rent. It worked for all concerned.

110Accordingly, I dismiss the plaintiff’s claim for sole title to the property on the basis of the RPLA.

Should any of the plaintiff’s alternative claims for sole ownership of the property be granted?

111In the event he is not declared sole owner under the RPLA, the plaintiff makes alternative claims for sole ownership on the basis of the principles of propriety estoppel, unconscionability, unjust enrichment and constructive trust.

a) Proprietary Estoppel

112In Cowper-Smith v. Morgan, 2017 SCC 61 at para. 15, the Supreme Court of Canada explained that proprietary estoppel, a claim in equity, arises when:

(1) a representation or assurance is made to the claimant, on the basis of which the claimant expects that he will enjoy some right or benefit over property;

(2) the claimant relies on that expectation by doing or refraining from doing something, and his reliance is reasonable in all the circumstances; and

(3) the claimant suffers a detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on her word.

113The plaintiff submits that by allowing the plaintiff to have exclusive possession of the property, and failing to make any claim over it until 2018, the defendants made an implied representation to him that he was the sole owner of the property. He claims that he reasonably expended funds to pay all of the expenses on the property on the belief that he was sole owner as of 1991. Finally, the plaintiff submits that the defendants knew that their claim as owners was inconsistent with the plaintiff’s claim as sole owner, that they knew or should have known that he was claiming to be sole owner and that because they did not discourage him from paying all of the carrying and maintenance costs and did not assert any legal right that they had as registered owners after 1991, he is entitled to a declaration that he is the sole owner.

114I do not agree that the plaintiff has a valid claim for proprietary estoppel.

115I reject that the suggestion that the defendants ever represented to the plaintiff that he was the sole owner of the property. The plaintiff acknowledged that there was never an express representation. Nor can I conclude, on this record, that there was ever an implied representation that the plaintiff was to become the sole owner. To the contrary, I think it was always implied to the plaintiff that at some point the property would be sold and that the proceeds of that sale would be equally shared.

116On this basis, it is my view that the plaintiff’s claim of proprietary estoppel fails.

b) Unconscionability

117Although the plaintiff did not plead unconscionability in his Statement of Claim, he now advances an argument that it would be unconscionable to allow a co-owner to receive an equal division of the property where one co-owner contributed significantly more than the other. Rather than assert a claim for the proceeds of the home to be unequally divided, the plaintiff submits that it is unconscionable for the defendants to make any claim against the property when they did not contribute to its purchase or maintenance. Accordingly, it is submitted that this is an alternative basis for the plaintiff to be awarded sole title to the property.

118The cases relied upon by the plaintiff make clear that while there is a presumption at law that the interests of joint owners are held equally, the presumption is rebuttable and the court may apply the principles of unjust enrichment to the valuation of a joint tenant’s property share. The court’s discretion to divide property unequally in the family law context is narrow and requires meeting the very high threshold of unconscionability: Edison Estate v. Lewis, 2012 NLTD(G) 81; Morrison v. Barclay-Morrison, [2009] O.J. No. 4663.

119I accept that the principles of unjust enrichment may warrant a determination that one joint owner’s share of jointly held property should be greater than the other’s. Unfortunately, I have been provided with no authority suggesting that there is a stand-alone principle of “unconscionability” that would ground such a determination. Properly understood, unconscionability is an equitable doctrine, accepted in Canadian contract law, that is used to set aside unfair agreements that resulted from an inequality of bargaining power. Its purpose is to protect those who are vulnerable in their transactions with others: Uber Technologies Inc. v. Heller, 2020 SCC 16 at para. 54-66.

120In my view, there is no basis in law to award the plaintiff sole ownership of the property on the basis of a principle of unconscionability.

c) Unjust Enrichment and Constructive Trust

121The plaintiff’s final claim, as an alternative to the RPLA, is one of unjust enrichment. He claims that as a remedy for what would be the defendants’ unjust enrichment, were the property to be sold and the proceeds shared equally, there should be a constructive trust imposed to the extent of the plaintiff’s proportionate contribution to the property. The plaintiff asserts that he has paid everything towards the purchase and maintenance of the property and as a result the appropriate remedy is to declare him sole owner.

122As I have already explained, I have concluded that the defendants paid 50 percent of the deposit, that they were involved in the payment of expenses and rental collection before the plaintiff moved into the property and in at least one significant repayment of the mortgage principle. I reject that a constructive trust should be imposed respecting the entire property with the result being that the plaintiff becomes sole owner on the basis of the principles of unjust enrichment. I do, however, think that there is a proper basis, grounded in the principles of unjust enrichment, for an unequal division of the property. I shall address this after analyzing whether the property should be sold.

Should an order be made under the Partition Act for the property to be sold?

123The defendants seek an order under the Partition Act, that the property be partitioned and sold forthwith.

124Under the Partition Act, R.S.O. 1990, c.P4:

2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only. R.S.O. 1990, c. P.4, s. 2.

3 (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested. R.S.O. 1990, c. P.4, s. 3 (1).

125The parties accept the well-established principle that a co-owner has a prime facie right to partition or sale of lands: Gartree Investments Ltd. v. Cartree Enterprises Ltd, [2000] O.J. No. 2078; aff’d [2001] O.J. No. 1184 (Div.Ct.); Davis v. Davis, [1954] O.R. 23 (Ont.C.A.).

126While a court has the discretion to refuse to grant an order for partition and sale, that discretion is limited “to cases in which the applicant has behaved maliciously, oppressively or with a vexatious intent towards the respondent”: Silva v. Silva (1990), 1 O.R. (3d) 436 (Ont.C.A.) at p. 441. The onus is on the party resisting the partition and sale to demonstrate sufficient reasons for refusal: Wise Enterprises v. J. Weiss, 2017 ONSC 5468 at para. 8.

127I understand it to be the plaintiff’s position that because Ms. Mistry’s evidence was that she understood that the property would not be sold unless all three of them consented, an order for partition and sale would be contrary to the oral agreement of the parties and, as a result, that the court should exercise its discretion not to order partition and sale. I do not agree.

128While there may well have been an agreement, decades ago, that the property would only be sold when they all agreed, I do not think the defendants’ decision to seek a sale now can fairly be characterized as malicious, oppressive or vexatious. I think there was always an expectation on the defendants’ part that the plaintiff would move into the property for a much shorter period than ended up happening. There was an expectation that the property would be sold much earlier. Now, the defendants’ decision to seek partition and sale seems to be a reasonable one, in light of what happened with the changes in title and the plaintiff’s conduct between 2016 and 2018, to seek sale of the property so that they can realize their fair share. In my view, there is no reason not to grant the defendants’ request for partition and sale of the property.

129Accordingly, I order that under the Partition Act, the property be partitioned and sold forthwith. Prior to being listed for sale at a mutually agreed on real estate agent, the property must be independently appraised. There is no evidence before me respecting its current value and I did not understand an appraisal to have been recently conducted.

130I accept the plaintiff’s position that before the property is sold, he would like an opportunity to buy the defendants out of their share so that he can continue living there. That is entirely fair and reasonable and he should be afforded a reasonable time in which to do so. I did not understand the defendants to take issue with the plaintiff’s request.

If the property is ordered sold, how should the proceeds of the sale be distributed?

131The lack of evidence makes it very difficult to determine how the proceeds of the sale of the property should be divided. The starting point would be that the proceeds are shared equally between the plaintiff and defendants.

132However, the plaintiff has made a claim of unjust enrichment. Success in a claim of unjust enrichment requires the plaintiff to show, first, that the defendants were enriched by him and, second, that he has suffered a corresponding deprivation. The third element of unjust enrichment is that the benefit and corresponding detriment must have occurred without a juristic reason, making the retention of the benefit to the defendants “unjust”. The principled approach to unjust enrichment is flexible, and enables courts to identify circumstances in which justice and fairness require one party to restore a benefit to another. Kerr v. Baranow, 2011 SCC 10 at paras. 36-40; Moore v. Sweet, 2018 SCC 52 at paras. 37-38.

133A constructive trust is the equitable remedy that may be imposed to remedy unjust enrichment. It is available only if the plaintiff can demonstrate that a personal remedy would be inadequate and that the plaintiff’s contribution that funds the action is linked or causally connected to the property over which the constructive trust is claimed. If a constructive trust is appropriate, it is to be imposed only to the extent of the plaintiff’s proportionate contribution to the acquisition, preservation, maintenance or improvement of the property: Moore v. Sweet at para. 91.

134The starting point of the analysis is whether the plaintiff can establish that the defendants were enriched by him and that he has suffered a corresponding deprivation.

135The challenge in this case is the absence of evidence about significant matters including what costs have been paid by the plaintiff. While the plaintiff has provided affidavit evidence about some repairs he claims to have made to the property, there is no documentation respecting these, no total, and no indication as to whether or not the property remains in good repair. Nor is there any evidence from the defendants as to what would have been a fair market rent or a fair occupational rent for the plaintiff to have paid over this period.

136The property was bought for $171,900 in 1988. Each party paid a $15,000 deposit, representing 8.7 percent of the value. Over the initial years, I have concluded that the parties shared equally in the costs, such as the mortgage and taxes, and the income from rent. As a result, in the period up to the time the plaintiff moved in, the defendants would have contributed half of whatever principal was repaid.

137Since 1991, the vast majority of the costs were paid by the plaintiff. For their part, the defendants agreed to forego any rental income.

138The only additional mortgage payment I find that the defendants made after 1991 was half of the $19,500, or $9,750 from the proceeds of 50 Eglinton Avenue in October 2003. This represents an additional 5.7 percent of the initial purchase cost that was paid by the defendants.

139At a minimum, on the basis of their contributions to the principal, the defendants would be entitled to 14.4 percent of the value of the home, plus half of whatever principal was re-paid between the purchase and 1991. In addition, as co-owners, the defendants would be entitled to half any rent that could have been collected by them and the plaintiff had the plaintiff not moved in and the property been rented. That rental income, of course could have been used to contribute to the mortgage, which the defendants appear to have continued to hold until 2014.

140On the evidence adduced at trial, I am satisfied that the plaintiff’s contribution to the property since 1991 has been significantly more than the value of rent that a tenant would have paid over this period. He has paid a significant amount, which has, presumably, enabled the value of the property to increase.

141In my view, were the proceeds of the sale to be shared equally between the plaintiff and defendants, the defendants would be enriched and the plaintiff would suffer a corresponding deprivation.

142I turn now to the question of whether the defendants’ retention of 50 percent of the proceeds can be justified by any juristic reason. This analysis must provide for consideration of the autonomy of the parties and their legitimate expectations and right to order their affairs by contract. A contract or agreement between the parties may constitute a juristic reason. So, for example, if the parties had reached an agreement that the plaintiff could live at their jointly owned property forever, carrying all of the costs, and that when it was sold they would share equally in the proceeds of the sale, that agreement would amount to a juristic reason for the defendants receiving 50 percent of the proceeds now. In these circumstances, a claim of unjust enrichment could not succeed: Kerr v. Baranow, at para 41; Moore v. Sweet, at para. 57.

143While I am satisfied that there was an agreement reached between the parties, as I have set out, the difficulty is that the parties never intended that agreement to last indefinitely, no matter how long the plaintiff remained on the property and regardless of what he paid towards it. I do not think they really ever gave their agreement that much thought, because they all expected it to be of a much shorter duration. On this record, I am satisfied that no agreement was ever made that if the plaintiff continued to pay all of the carrying costs for 30 years, he would still only be entitled to only a 50 percent share of the proceeds of the sale. I cannot conclude that they agreed to the defendants being enriched, and the plaintiff correspondingly deprived, in this way.

144Since, in my view, there is an absence of juristic reason for an enrichment, the plaintiff has shown that the analysis should proceed to the second stage, where the defendants must rebut the plaintiff’s claim and show that there is a residual reason to permit their enrichment. At this stage, the court considers the parties’ reasonable expectations and public policy, including considerations of the way in which the parties organized their relationships: Moore v. Sweet, at para. 58.

145As I have indicated, I think the parties’ initial agreement contemplated that the carrying and maintenance costs on the property would be paid by the plaintiff, who would live at the property until it was sold, an event that would take place in the not so distant future. The defendants were not paying carrying costs, and were foregoing rental income that would otherwise have covered many of those costs. Their agreement was that they would share equally in the profits when the property was sold. They anticipated that this would work out well for both sides.

146Neither party contemplated, nor reasonably expected at the time of the agreement, that the plaintiff would remain at the property, carrying all of the costs on his own, for so long. This was inconsistent with their regular practice. It was never discussed. It was not part of the bargain.

147I am not satisfied that the defendants have demonstrated that it would be reasonable, in these circumstances, for the proceeds of the sale to be shared equally between them. Such a result would enrich the defendants, to the detriment of the plaintiff, in circumstances that no one could reasonably have relied upon. The plaintiff has paid more in mortgage, property taxes, insurance and maintenance and upkeep costs than could reasonably have been generated by rental income. A constructive trust should be imposed to recognize the extent of his contribution, which exceeds that of the defendants, over a long period of time.

148Given the gaps in evidence, no mathematical calculation can be done to determine with precision what percentage of the value of the home should fairly be awarded to each of the parties in order to compensate for the plaintiff having paid so much more than the defendants, even allowing for their foregone rent. In the absence of any evidence to support particular percentages, I have determined that it would be fair for the plaintiff to receive 65 percent of the value of the property and for the defendants to receive 35 percent of the value. This distribution, in my view, approximates and recognizes the relative contributions of the parties. It starts from the presumption that the parties should share equally as co-owners, but recognizes the unfairness that doing so would visit on the plaintiff, who has paid a disproportionate share of the costs of the property since 1991. It recognizes what I find are reasonable expectations for the parties, given their arrangements, and the unexpected time for which the plaintiff has remained on the jointly owned property.

Order to be Granted

149The defendants seek an order that the charge registered on the property on January 7, 2019 in favour of counsel for the plaintiff does not bind the defendants’ interest on title. It seems to me obvious that this charge, in which the defendants had no involvement, would not encumber the defendants’ interest on the property. I need make no order respecting this.

150I am also not prepared to grant the defendants’ request for an order that the plaintiff’s signature on any documents required for the sale is dispensed with. He is an owner of the property. If he is unable to purchase the property at fair market value, it is to be sold. I have no reason to think he will not comply with the order for sale. As 65 percent owner of the property, he is, in my view, entitled to participate in the sale process.

151In accordance with these reasons, I order the following:

• that the defendants have a 35 percent interest and the plaintiff a 65 percent interest, in the property known municipally as 347 Glenn Hawthorne Boulevard, Mississauga Ontario and more fully described as PCL 97-1 SEC 43M737; LT 97; PL 43M747; S/T RIGHT AS IN LT804115 (the “Property”);
• that under the Partition Act, that the Property be partitioned and sold forthwith;
• that prior to listing the home for sale, an appraisal is to be conducted, after which the plaintiff is to be provided with a reasonable period of time within which to arrange to purchase the defendants’ share of the property from them at fair market value, or at a value upon which the parties agree;
• that failing an agreement being reached between the parties for the plaintiff to buy out the defendants’ 35 percent interest, the property be sold at fair market value by the real estate agent, mutually agreed on by the parties, on MLS, for which an acceptance of an offer at fair market value or higher will not be unreasonably withheld.

Costs

152The parties are encouraged to resolve the issue of costs between them. If they are unable to do so, I shall decide the issue of costs on the basis of written submissions. While not entirely successful, I view the defendants as the more successful party and thus presumptively entitled to reasonable, partial costs. The defendants shall have two weeks from the release of this judgment to serve and file their costs submissions of not more than three pages, double spaced, in addition to their bill of costs and any case law. The plaintiff shall have ten days to file responding submissions of the same length. There will be no reply without leave of the court.

J.M. Woollcombe J.

Released: March 24, 2021