COURT FILE NO.: CV-19-00627644-0000 DATE: 2021101920220411
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Bill Allison
Applicant
– and –
Shantai C. Bent a.k.a. Shantain Cassandra Bent and Shauna A. Bent a.k.a. Shauna Andrea Bent, Estate Trustees for the Estate of Vivette Andrea Walker, Deceased
Respondents
Philip Holdsworth, for the Applicant
Diane Vieira, for the Respondents
HEARD at Toronto by videoconference: February 23 and 25, 2021
Favreau J.:
Introduction[^1]
[1] The applicant, Bill Allison, seeks a declaration that he is the beneficial owner of a condominium at 800 Lawrence Avenue West, Unit 507, Toronto.
[2] The owner on the title to the property is Vivette Walker. Ms. Walker died in 2016. Ms. Walker’s estate disputes that Mr. Allison has any ownership interest in the property.
[3] Mr. Allison claims that, at the time Ms. Walker entered into an agreement to buy the pre-built condominium, her common law partner, Donovan Bent, was to be the beneficial owner. However, before closing, Mr. Bent ran into financial difficulties and Mr. Allison agreed to take over the ownership and all financial responsibilities for the property. Mr. Allison argues the court should recognize him as the beneficial owner of the property because of an express agreement that Ms. Walker would hold the property in her name for his benefit or, alternatively, on the basis of a resulting trust.
[4] One of the challenges in this case is that the witnesses with direct evidence of the transaction are no longer available to testify or not willing to testify. Given Ms. Walker’s death, she is not available to provide any evidence regarding the transaction and her intentions. In addition, both sides say that Mr. Bent was unwilling to testify voluntarily and neither side summoned him as a witness.
[5] Based on the evidence available on the application, I am not satisfied that Mr. Allison has proven that he is the beneficial owner of the condominium. I am not satisfied that he has proven that there was an express trust agreement between him and Ms. Walker, and I am also not satisfied that there was a gratuitous transfer of property that would support finding a resulting trust. Accordingly, the application is dismissed.
Background
[6] By agreement of the parties, the evidence on the application was given through a combination of affidavits, examinations in chief and cross-examinations. The witnesses who provided evidence were Mr. Allison, Greg Henry (who acted as mortgage broker), Claver Wilkins (who acted as real estate agent) and Shaina Bent who is Ms. Walker’s daughter and one of the estate trustees.
[7] There are some undisputed facts that are in part supported by the documents filed as exhibits. There are also many disputed facts. I start with a review of the undisputed circumstances of the transaction at issue. I then provide a summary of the evidence provided by the witnesses. Specific rulings on the evidence or findings of fact are set out in some cases in the review of the evidence and primarily in the analysis of the issues.
Purchase of the condominium
[8] Ms. Walker entered into an agreement of purchase and sale for the condominium on November 23, 2010. The purchase price was $247,900. A payment of $2,000 was made toward the purchase price on November 23, 2010. The agreement also required Ms. Walker to make the following payments:
a. $10,395 within 30 days;
b. $12,395 within 120 days;
c. $12,395 within 270 days; and
d. $12,395 on the occupancy date.
[9] Ms. Walker made all of these payments by cheque, although there is a dispute over where the money came from. Mr. Allison’s position is that the first three payments came from Mr. Bent and that he made the last payment.
[10] The closing on the condominium occurred on November 10, 2015.
[11] RBC granted Ms. Walker a mortgage in the amount of $190,000 to purchase the property. Ms. Walker was not able to get any life insurance at the time she obtained the mortgage.
[12] Mr. Allison and Ms. Walker attended the office of a lawyer, Tolulope Adewuni, to sign documents around the date of the closing. Since that time, Mr. Adewuni lost his licence to practice law. The parties were able to obtain his file from the transaction for the purpose of the application. The file contained various documents related to the closing, but did not include a trust agreement or any signed agreement between Mr. Allison and Ms. Walker setting out the terms of their relationship.
[13] There is no dispute that Mr. Allison did not make the first three payments on the condominium. However, he takes the position that he made the last payment on closing and that he made a number of additional payments required to close the transaction. These payments are not conceded by the respondents. However, there is no dispute that Mr. Allison made most of the mortgage payments from the time of closing until approximately 2018. Mr. Allison made these payments through Ms. Walker’s bank accounts.
Ms. Walker’s death and will
[14] Ms. Walker was diagnosed with terminal cancer in 2015. She died on October 8, 2016. At the time, she was 50 years old. Before her diagnosis, Ms. Walker was employed as a registered nurse.
[15] Ms. Walker and her common law partner, Mr. Bent, had four children, including her estate trustees, Shaina and Shauna Bent. (Given that Shaina Bent has been the one actively involved in this litigation, for the balance of these reasons, my references to “Ms. Bent” are to Shaina Bent.)
[16] Ms. Walker left a handwritten will dated June 10, 2016. Amongst other matters, the will provides that “the condo to be sold upon death”. At that time, Ms. Walker also owned a house but no condominium properties other than the unit at 800 Lawrence Avenue.
[17] The will was probated in 2018, and confirmed Ms. Bent and her sister as estate trustees.
Evidence of the witnesses
Bill Allison’s evidence
[18] Mr. Allison’s evidence is that he has been friends with Donovan Bent for many years. Mr. Bent is his child’s godfather. Both men are like brothers. Their friendship is not as close since the dispute arose over the condominium.
[19] Mr. Allison’s evidence is that he has bought several condominiums starting in the early 2010s but that they have always been in someone else’s name. He claims that in all cases there was a written “trust agreement” that made clear that he was the true owner. The trust agreements were drafted by his former lawyer, Mr. Adewuni.
[20] With respect to this transaction, Mr. Allison’s evidence is that he attended a pre-sale event with Mr. Bent and Ms. Walker on November 23, 2010. They stood in line from 7:00 am to 3:00 pm. By the time they got to the front of the line, there were only two one-bedroom units left. Mr. Allison agreed to buy one unit. Mr. Allison claims that Mr. Bent intended to buy the other unit but he was having credit issues, so he and Ms. Walker decided that the unit would be in her name.
[21] While Ms. Walker made the first three deposit payments on the unit, Mr. Allison claims that it was actually Mr. Bent who made all of the payments and that, in some cases, Mr. Allison himself helped Mr. Bent make the payments when Mr. Bent was short of money. Mr. Allison claims that, in total, Mr. Bent, through Ms. Walker, paid $34,000 of the initial deposits on the condominium.
[22] Mr. Allison claims that sometime in 2011, Mr. Donovan approached him to tell him that he could not afford to make further payments on the condominium or to close the sale. Mr. Allison claims that, at that point, he and Mr. Bent made an agreement that Mr. Allison would take over financial responsibility for the condominium. He would make all further deposit payments, payments required for closing and mortgage payments. Mr. Allison claims that the agreement provided that he would give Ms. Bent approximately $34,000 when the condominium was sold. He claims that he persuaded Mr. Donovan to give Ms. Bent this money because he was concerned that Mr. Bent was favouring his other children in giving them money. Mr. Allison claims that he, Ms. Walker and Mr. Bent proceeded this way because the agreement of purchase and sale did not allow Ms. Walker to transfer her interest in the condominium to Mr. Allison due to restrictions in the agreement of purchase and sale.
[23] Mr. Allison claims that he instructed his lawyer to prepare a trust agreement that reflected that he was the beneficial owner of the property and that Ms. Walker signed that agreement. However, he acknowledges that he does not have a copy of the agreement and that Mr. Adewuni’s file did not contain such an agreement.
[24] Mr. Allison claims that, as of the date on which he reached an agreement with Mr. Bent about taking over ownership of the condominium, he took responsibility for the condominium. He made arrangements for the closing, including arranging for Ms. Walker to obtain a mortgage, getting his lawyer to prepare documents for the closing, making all payments required for the closing, selecting finishings for the condominium and obtaining the keys to the condominium.
[25] Mr. Allison’s evidence is that, prior to closing, he got his cousin, Greg Henry, who is a mortgage broker, to help Ms. Walker get a mortgage for the condominium. Mr. Henry was able to get a mortgage from RBC.
[26] Mr. Allison says that he and Ms. Walker attended Mr. Adewuni’s office for the purpose of signing the closing documents, including the trust agreement, on November 10, 2015. This was the only time Ms. Walker had any contact with Mr. Adewuni. Mr. Allison made all the arrangements to meet with Mr. Adewuni and had all contact with Mr. Adewuni other than the meeting that Mr. Walker attended.
[27] While the mortgage was in Ms. Walker’s name, Mr. Allison says that he made all the payments. Initially, he would give Ms. Walker money that she would put in her personal bank account, and the mortgage payments would be made through her personal bank account. However, there was an issue with one of the payments, and he convinced Ms. Walker to set up an account with RBC for the specific purpose of making mortgage payments and payments for the condominium fees. Mr. Donovan claims that he made deposits into that account every month for the purpose of making those payments.
[28] Mr. Allison’s evidence is that he rented the condominium out. There were long term rentals and short term rentals, including on AirBNB. Mr. Allison has not provided an accounting of the amounts he received in rent, but he stated that, as a long-term rental, the condominium rented for as much as $1,700.
[29] Mr. Allison claims that, before Ms. Walker died, they tried to sell the condominium but were not able to do so because of a condition in the agreement of purchase and sale preventing resales until the building was 85% sold.
[30] Mr. Allison claims that, after Ms. Walker died, he contacted Ms. Bent to try to make arrangement for the transfer of the condominium into his name or the name of someone he designated. Initially, Ms. Bent said that nothing could be done until Ms. Walker’s will was probated.
[31] Mr. Allison also testified about various communications he had with Ms. Bent in 2018 about the condominium. He claims that he had discussions with Ms. Bent during which she asked him for between $95,000 and $110,000, but that she never claimed that her mother was the owner of the condominium. He says that it was only after he refused to pay these amounts, that Ms. Bent claimed her mother owned the condominium. Mr. Allison relies on various text messages as proof that Ms. Bent acknowledged that he owned the condominium.
[32] Mr. Allison also purports to rely on a three-way telephone conversation with Mr. Bent and Ms. Bent on October of 2018 in which he says Mr. Bent explained to Ms. Bent that the condominium was not hers and that it was Mr. Allison’s.
[33] Mr. Allison also gave evidence that Ms. Bent changed her mother’s bank account and that he was not able to make payments on the condominium for some period of time. He claims that, while Ms. Bent made those payments, he ultimately reimbursed her for at least some portion of those payments. Mr. Allison also says that Ms. Bent took steps to restrict his access to the condominium.
Mr. Henry’s evidence
[34] Mr. Henry and Mr. Allison are cousins.
[35] Mr. Henry has made arrangements for Mr. Allison to obtain mortgages in the past.
[36] Mr. Henry’s evidence about this transaction is that Mr. Allison arranged for Ms. Walker to obtain the RBC mortgage. He did so at Mr. Allison’s request and Mr. Allison paid his fees.
[37] Mr. Henry gave some evidence about his understanding of the arrangements between Mr. Allison, Mr. Bent and Ms. Walker. His understanding comes from information he obtained from Mr. Allison. I give no weight to this evidence because it suffers from the same defects as Mr. Allison’s own evidence which is discussed in the analysis below.
Mr. Wilkins’s evidence
[38] Mr. Wilkins is a real estate agent. His evidence is that he has known Mr. Allison for at least twenty years. He has also known Mr. Bent for approximately the same amount of time. He has helped both of them with real estate transactions.
[39] He says that he waited in line with Mr. Allison, Mr. Bent and Ms. Walker in 2010 for the pre-build sales event for the condominium at 800 Lawrence Avenue. He provided evidence of his recollection of what Ms. Walker and Mr. Bent said about the financial arrangement behind the purchase. However, this is improper hearsay evidence and I am disregarding it.
[40] Mr. Wilkins also gave evidence about his various discussions with Mr. Allison about the status of Ms. Walker’s unit, and how Mr. Allison could get the condominium transferred to his name.
Ms. Bent’s evidence
[41] Ms. Bent does not have any direct evidence about the arrangement between her parents or the arrangements between her mother and Mr. Allison. Her evidence is that her understanding is that her mother owned the condominium and Mr. Allison managed it in exchange for all rent income he was able to obtain.
[42] She testified that, before her mother died, Ms. Walker told her daughter that the condominium would belong to her children after her death but that Mr. Allison would claim that he owned it.
[43] Evidently, Ms. Bent does not have a good relationship with her father. She says that, before her mother’s death, they were on speaking terms but did not get along well. Since her mother’s death, they have not been on speaking terms.
[44] Ms. Bent says that her father and Mr. Allison were acquaintances and not close friends. She also says that her father told her that he did not agree with Mr. Allison’s version of events, and that Mr. Allison was looking after the condominium, including making mortgage payments and looking after upkeep, in exchange for keeping any amounts collected for rent.
[45] Ms. Bent’s evidence is that, after her mother died, she initially had a few conversations with Mr. Allison but that he never claimed he had an ownership interest in the condominium.
[46] Ms. Bent’s evidence is that it took her and her siblings a while to turn their minds to getting their mother’s will probated. They were all relatively young and felt overwhelmed by the situation.
[47] After the will was probated, Ms. Bent testified that Mr. Allison started taking the position that he was the owner of the condominium and that he would pay her $34,000 out of the proceeds of any sale. Ms. Bent testified that this came as a surprise because no one ever told her about this arrangement.
[48] In cross-examination, she acknowledged some of Mr. Allison’s evidence about his payment of arrears to RBC in 2018. She stated that the RBC account was closed due to her mother’s death and not to shut him out of making any payments. She assumed that payments he made were consistent with the agreement over his management of the condominium in exchange of keeping rental amounts.
[49] Ms. Bent acknowledged the three-way conversation she had with her father and Mr. Allison in 2018. However, her evidence is that her father did not confirm Mr. Allison’s version of the agreement. Rather, Mr. Bent simply repeated several times to Mr. Allison that he should pay Ms. Bent her money after which she would transfer the title. No specific amount was named and no specific terms of any agreement were identified.
Issues and arguments raised by the parties
[50] Mr. Allison makes two legal arguments in support of his position that he is the beneficial owner of the condominium:
a. He claims that there is an express trust agreement; and
b. In the alternative, he claims that he owns the property based on a resulting trust.
[51] Mr. Allison also argues that Ms. Bent, as estate trustee, has breached her trust obligations to him by allowing the mortgage to go into default.
[52] Ms. Bent argues that the evidence does not support a finding of a trust agreement or of a resulting trust. In addition, Ms. Bent argues that, even if Mr. Allison was able to show a resulting trust, at most this would entitle to him to a finding of unjust enrichment; he would not be entitled to a finding that he is the owner of the condominium as such a finding would be contrary to the Statute of Frauds, R.S.O. 1990, c. S.19. However, she argues that Mr. Allison does not seek such a remedy and, in any event, he has put forward no evidence of any losses he suffered.
[53] For the reasons below, I find that the evidence does not support a finding of an express trust or a resulting trust. In addition, even if Mr. Allison had sought a remedy for unjust enrichment, he has not put forward any evidence of losses he may have suffered.
Issue 1 – There is no evidence of an express trust
[54] The evidence on the application does not allow me to find that there was an express agreement between the parties that Ms. Walker was holding the condominium in trust for Mr. Allison.
Test for finding an express trust
[55] As held in Byers v. Foley, 1993 CanLII 5506 (ON SC), 16 O.R.(3d) 641 (Gen. Div.), there are three essential conditions for finding the existence of a trust:
a. The language of the settlor must be imperative;
b. The subject matter or trust property must be certain; and
c. The objects of the trust must be certain.
[56] In Byers, the court also held that, for a trust to be valid, there must be a clear intention to create it. In the absence of a formal trust agreement, “the court must look at the surrounding circumstances and the evidence as to what the parties intended, as to what was actually agreed and as to how the parties conducted themselves to determine whether there was ‘certainty of intention’”.
Analysis
[57] In this case, Mr. Allison’s first argument is that there was an express trust agreement. He claims that his former lawyer drafted the agreement, and that he and Ms. Walker signed the agreement when they attended the lawyer’s office. The problem with this argument is that Mr. Allison has not been able to produce such an agreement. While he was able to obtain his former lawyer’s file, the file did not contain a trust agreement. Mr. Allison claims that he had similar arrangements for other properties and that his lawyer had drafted trust agreements in those circumstances. However, Mr. Allison did not produce any of those trust agreements. Even if he had done so, they would not serve to prove that he had entered into a trust agreement with Ms. Walker.
[58] Mr. Allison’s second argument is that the surrounding circumstances make clear that it was Ms. Walker’s intention that she was to hold the property in trust for Mr. Allison. There are two fundamental flaws to this argument. First, the evidence is insufficient for me to reach this conclusion. Second, the Statute of Frauds does not allow for an agreement related to the transfer of real property that is not in writing.
[59] With respect to the evidence, there is no admissible evidence before me that Ms. Walker intended to hold the property in trust for Mr. Allison. This position rests on the assumption that Mr. Bent was originally meant to be the beneficial owner of the property and that Ms. Walker was to hold the property in trust for him. Then, at some point in 2011, Mr. Bent and Mr. Allison reached an agreement that Mr. Allison would be the beneficial owner and that Ms. Walker would hold the property in trust for him.
[60] There are two key witnesses missing for me to accept Mr. Allison’s position that this is what Ms. Walker and Mr. Bent intended: Ms. Walker and Mr. Bent. The only evidence that the original intended arrangement was that Ms. Walker was to hold the property in trust for Mr. Bent is the inadmissible hearsay evidence of Mr. Allison. Mr. Allison did not seek to have this evidence admitted on the basis of the doctrine of necessity and reliability. Even if he had, I am not sure how he could have met the test. There was no evidence as to why Mr. Bent could not be compelled to testify. Even if I had been satisfied that Mr. Bent could not be called as a witness, the core evidence on this point is double hearsay, namely the information Mr. Allison claims to have obtained from Mr. Bent about Ms. Walker’s intentions.
[61] Regardless of what the original arrangement was meant to be, Mr. Allison nevertheless needs to convince the court that in 2015, at the time title to the condominium was transferred to Ms. Walker, she intended to hold the property in trust for Mr. Allison. However, the surrounding circumstances do not make it clear to me that Ms. Walker intended to hold the property in trust for Mr. Allison nor do they make it clear what the terms of the arrangement were meant to be. Even accepting Mr. Allison’s position that he made all payments on the condominium as of 2015, this arrangement leaves too many unanswered questions to lead to the conclusion that Ms. Walker intended to hold the condominium in trust for Mr. Allison’s benefit. Why would she enter into such an agreement with someone who, at most, was a friend, while taking on the risk of a mortgage and seeking nothing more than the repayment of her initial deposit at some undetermined date in the future? I accept that there was evidently some agreement between them, but it is not clear what it was and it is certainly not clear that it involved Ms. Walker holding the property in trust for Mr. Allison with only the prospect of receiving the return of the $34,000 deposit.
[62] In support of his position that there was an express trust, Mr. Allison relies on the various communications he had with Ms. Bent after Ms. Walker died. For example, there is a vague reference in one of the text messages about something Ms. Bent’s sister told her about the status of the condominium. Similarly, Mr. Allison relies on the fact that, in the text messages, Ms. Bent does not appear to deny the ownership until the dispute over how much money Ms. Allison should pay had escalated. In my view, these communications do not assist Mr. Allison. They are insufficient to demonstrate the certainty required for an express trust. The inconsistencies in the positions taken by Ms. Bent do not suggest that she ever agreed with Mr. Allison’s version of events but, rather, are consistent with someone who does not have an understanding of the arrangements between Mr. Allison, Ms. Walker and Mr. Bent, which is not surprising given that she was not privy to these arrangements. They are also consistent with what one would expect from a relatively unsophisticated estate trustee who is trying to protect her mother’s estate.
[63] In any event, Mr. Allison is asking this court to grant him an interest in real property in the absence of proof of a written agreement. This is contrary to section 1(1) of the Statute of Frauds. In this case, there is no written trust agreement and there is also no written agreement of any nature that shows an intention by Ms. Walker to hold the property in trust for Mr. Allison’s benefit. The only evidence of such an agreement is his oral evidence. This does not meet the requirements of the Statute of Fraud.
[64] Accordingly, I find that Mr. Allison has not met his onus of proving that there is an express trust in this case.
Issue 2 -- Mr. Allison has not established a resulting trust
[65] In the alternative to his argument of an express trust, Mr. Allison argues that there was a purchase money resulting trust. I am not satisfied that the evidence available on this application allows me to make such a finding.
[66] I first start with a discussion of the law on resulting trusts followed by the application of the law to the facts in this case.
[67] Mr. Allison argues that his interest in the property arises from a purchase money resulting trust.
[68] In Andrade v. Andrade, 2016 ONCA 368, at para. 57, quoting from the Supreme Court of Canada’s decision in Pecore v. Pecore, 2007 SCC 17, at para. 20, the Court of Appeal stated that a resulting trust “arises when title to property is in one party’s name, but that party because he or she is a fiduciary or gave no value for the property is under an obligation to return it to the original title owner”.
[69] At paras. 58-59, in Andrade, the Court of Appeal described a purchase money resulting trust as follows:
A purchase money resulting trust can occur “where a person advances a contribution to the purchase price of property without taking legal title”: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 21. It is one of the “classic resulting trust situations” and can arise when a party contributes directly to the purchase price or the mortgage: Eileen E. Gillese, The Law of Trusts, 3rd ed. (Toronto: Irwin Law, 2014) at pp. 113-15. In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 12, Cromwell J. noted that it has been “settled law since at least 1788 in England (and likely long before) that the trust of a legal estate, whether in the names of the purchaser or others, ‘results’ to the person who advances the purchase money”.
Except where title is taken in the name of a minor child, where property is acquired with one person’s money and title is put in the name of another, there is a presumption of resulting trust…
[70] At para. 63, in Andrade, the Court of Appeal emphasized that the “relevant time for ascertaining intention is the time of the acquisition of the property, when the funds were advanced… Evidence that arises subsequent to a transfer must be relevant to the intention of the transferor at the time of the transfer…”
[71] At para. 67, the Court of Appeal held that, in the context of a resulting trust, the issue of intention is not the intention of the person who holds title to the property but the intention of the person who advanced the purchase money.
[72] In Andrade, the facts were very different from the facts in this case. In Andrade, the Court of Appeal held that the person claiming to be the beneficial owner had made the down payment on the house and made all mortgage payments. In that context, the Court found that this was a gratuitous transfer and the title owner has not been able to prove that the person who made all payments intended the title holder to also be the beneficial owner of the property.
[73] The circumstances of this case are much less clear.
[74] It is not possible, based on the record before me, to find that there was a gratuitous transfer. There is no dispute that Mr. Allison did not make the initial down payments. While he contends that it was made by Mr. Bent, not Ms. Walker, he does not take the position that he made those initial three payments.
[75] Mr. Allison argues that the payment of the initial down payment is irrelevant to the issue because Ms. Walker did not make that payment and, in addition, he had an agreement with Mr. Bent that, once the condominium was sold, that amount would go to Ms. Bent. However, as reviewed above, I cannot accept this evidence. It depends on inadmissible hearsay. I have no credible evidence that Mr. Bent, rather than Ms. Walker made the initial down payment. In addition, the only evidence that Mr. Bent asked Mr. Allison to take over the beneficial ownership of the property and that the agreement only required Mr. Allison to pay $34,000 to Ms. Bent, is Mr. Allison’s inadmissible hearsay evidence.
[76] Even if I were to accept that Mr. Allison made some of the closing payments and the mortgage payments on the property, which Ms. Bent does not contest with the exception of two payments or so, I nevertheless do not accept that these were gratuitous payments. The mortgage was in Ms. Walker’s name. She took on the risk of the mortgage, a risk that was increased by the fact that she was not able to get life insurance. In addition, Mr. Allison has not put forward any evidence that establishes he suffered any losses in making these payments. While I accept that Mr. Allison made the mortgage payments, he also started doing so around the time he could start renting the apartment. When he was cross-examined, he testified that he had rented the apartment initially to one tenant and then through AirBNB or as a short term rental. The rent he collected started off at $1400 per month and is now up to $1700. The statement from the RBC account show that the monthly mortgage payments and fees are $1,100 in combination. Given the rental income, these are not gratuitous payments.
[77] It is evident that the court was not given a complete picture of the dealings between Mr. Walker, Mr. Bent and Mr. Allison in relation to the condominium. Given that Ms. Walker made the initial payments, there is no clear explanation for why Mr. Allison ended up making the mortgage payments and collecting the rent on the unit. However, whatever those arrangements were, it is not possible for me to conclude that there was a purchase money resulting trust in this case because I am not satisfied that there was a gratuitous transfer.
Issue 3 – No breach of trust
[78] Given my findings above that there was no trust agreement or resulting trust, it is not necessary for me to address Mr. Allison’s arguments that Ms. Bent is liable for breach of trust.
Conclusion
[79] For the reasons above, the application is dismissed.
[80] Following argument on the application, counsel for the parties wrote to the Court to advise that RBC has sold the condominium under a power of sale. I expect that my decision would lead to any leftover funds from the sale being available to the estate for distribution. However, if any issues arise between the parties on this issue, they can contact my assistant to schedule a case conference.
[81] After the hearing, counsel for the parties advised the Court that they had reached an agreement on costs that depends on the outcome of the application. It is not clear from the documents submitted by counsel, what costs would be payable by Mr. Allison to the respondents in the event the application was dismissed. I trust that, based on their agreement, counsel can ascertain the costs to be paid by Mr. Allison. If they need further guidance on costs, they can contact my assistant.
___________________________ Favreau J.
Released: October 19, 2021 April 11, 2022
COURT FILE NO.: CV-19-00627644-0000 DATE: 2021101920220411
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Bill Allison
Applicant
– and –
Shantai C. Bent a.k.a. Shantain Cassandra Bent and Shauna A. Bent a.k.a. Shauna Andrea Bent, Estate Trustees for the Estate of Vivette Andrea Walker, Deceased
Respondents
AMENDED REASONS FOR JUDGMENT
FAVREAU J.
Released: October 19, 2021 April 11, 2022
[^1] These are Amended Reasons for Judgment. The original decision was to be released on October 19, 2021. However, after inquiries made by counsel in April 2022, it became apparen that the court did not release the decision to the parties on that day. The only amendment to this decision is the date of release.