Superior Court of Justice - Ontario

COURT FILE NO.: FS-20-19588

DATE: 20211014

RE: FELIX SALAZAR HOLGUIN, Applicant

AND:

THIRUCHELVAM MOHAN, Respondent

BEFORE: Kimmel J.

COUNSEL: Applicant, Self-Represented Kenneth Younie, for the Respondent

HEARD: October 5, 2021

ENDORSEMENT

Overview and Summary of Outcome

[1] This is a summary judgment motion by the respondent for the dismissal of this application. For the reasons that follow, I find that there is no genuine issue requiring a trial. The evidentiary record establishes that the application is statute barred, having been commenced more than two (and even more than ten) years after the pleaded causes of action arose. This application should be dismissed now before either party is put to any further time, effort and/or the expense of participating in this court proceeding.

The Background to the Application

[2] The applicant (also referred to herein as “Holguin”) makes claims for unjust enrichment and a constructive trust over the respondent’s property located at 2 Canning Court, Markham, Ontario L3S 2W4 (the “Canning Court property”). Holguin claims that the parties were romantically involved for over ten years and that they cohabited as a romantic couple between November 2002 and January 2009 (consecutively in three different properties, all owned by the respondent). Holguin further asserts that the parties remained a couple even after he moved out of the property, until April 2011.

[3] The respondent (also referred to herein as “Mohan”) portrays the parties’ relationship very differently. He acknowledges that they were romantically involved and dated for approximately twelve months between 2000 and 2001. Mohan says they parted as friends. When he purchased his first house (located at 54 Byng Avenue in Scarborough, Ontario, the “Byng Avenue property”) in November of 2002, Mohan says he invited Holguin and another friend, Vasili Emmanoil (“Vasili”), to move in with him. Mohan and Vasili attest that they all lived together as friends, they each had their own bedroom and Mohan agreed to charge his friends, Holguin and Vasili, below-market rent.

[4] Mohan rented the basement apartment at the Byng Avenue property to Holguin’s uncle and aunt. They paid market rent to live there and the uncle, who was a skilled contractor, did some renovation work on that house and was paid for it. The parties agree that the applicant assisted with this work but disagree about whether he and his uncle were paid for their labour and materials by Mohan (according to Mohan) or whether Holguin contributed his labour and materials and paid his uncle (according to Holguin).

[5] The Byng Avenue property was sold and a property at 10 Folcroft Avenue in Scarborough, Ontario (the “Folcroft Avenue property”) was purchased by Mohan on or about July 28, 2005. Mohan, Holguin, Vasili and another mutual friend, Jesse Tharan (“Jesse”), all moved in and lived together at the Folcroft Avenue property. Mohan says that they each continued to have their own bedroom and that his agreement to charge below-market rent to his friends, Holguin, Vasili and then Jesse, continued.

[6] Mohan purchased the Canning Court property on or about April 30, 2007. All three of his friends moved with him to that house later that year, after some needed work was completed.

[7] Holguin does not suggest that he contributed financially to the acquisition of the Canning Court property or that he did any specific work or renovations to that property. Rather, he claims to have contributed to a “joint family venture” that enabled Mohan to work and acquire properties that they lived in together as a couple, this being the last one.

[8] According to Mohan, the living arrangements (each of the four friends having their own bedroom) and his agreement to charge his three friends who lived with him below-market rent continued after this move. Mohan says he eventually asked Holguin to move out of the house at or about the end of 2008 because Holguin had not been consistently paying even the below-market rent and had not been doing his share of the household chores.

[9] Holguin acknowledges that he moved out of the Canning Court property and into his own apartment in downtown Toronto in early 2009. He disagrees that this move was initiated by the applicant. Holguin says he moved so that he could be closer to where he was attending college at the time.

[10] Holguin wrote the following in a letter dated September 7, 2020 to the applicant, just prior to commencing this proceeding, about the reason for his move in 2009:

You told me you were in love with somebody else, nonetheless you want to keep me in the house as your servant. That's something I could not accept. Also, I needed to do something for myself, that's why I moved out of the house on January 2009.

[11] Shortly after Holguin moved out of the Canning Court property, in early 2009, Mohan paid him $15,000.00. Vasili attests that he was present when this payment was made. Mohan says he paid this money because Holguin was upset about being asked to move and was threatening to “out” Mohan as a gay man. Mohan was concerned at that time that it could impact his business as a children’s music teacher in the conservative Indian and Sri Lankan communities.

[12] Mohan had taken out a life insurance policy naming Holguin as the sole beneficiary. Mohan says he did this earlier in their friendship to help Holguin who he felt had been struggling financially as a new immigrant to Canada; Holguin says Mohan took this out as a spousal life insurance policy. Around the same time, Mohan also made a will leaving his estate to his other friend and long-time roommate, Vasili. After making the $15,000.00 payment to Holguin in early 2009, the life insurance policy was cancelled by Mohan in March of that year (as was independently confirmed by the insurance broker’s letter tendered into evidence by Holguin).

The Summary Judgment Motion and the Limitations Question

[13] The respondent moves for summary judgment under r. 16 of the Family Law Rules, O. Reg. 114/99, and asks the court to dismiss the applicant’s claims. Various arguments are made in support of this motion, but, having regard to the test on summary judgment motions, its success ultimately turns on the court’s determination of whether the court is able to decide the limitations defence raised by the respondent on its merits now, or whether there is a genuine issue requiring a trial to determine the viability of the respondent’s limitations defence (the “limitations question”).

[14] If the respondent can satisfy the court of the validity of that defence based on the evidentiary record on this motion without the necessity of a trial, then that will be dispositive of the applicant’s claims. In such event, there will be no need for the court to decide the various other contentious matters between the parties, now or at a trial (even if those other matters might have required a trial for their determination).

[15] The following timeline of uncontroverted events is relevant to the determination of the limitations question:

(a) The parties were involved in a romantic relationship for at least one year, commencing in or about 2000.

(b) Mohan made the down payment and purchased the Byng Avenue property in or about November 2002.

(c) Mohan, Holguin and Vasili lived together at the Byng Avenue property until it was sold in 2005.

(d) Mohan sold the Byng Avenue property and purchased the Folcroft Avenue property in 2005.

(e) Mohan, Holguin, Vasili and another friend, Jesse, moved into the Folcroft Avenue property in or about July of 2005.

(f) Mohan sold the Folcroft Avenue property and purchased the Canning Court property in 2007.

(g) All four of Mohan, Holguin, Vasili and Jesse lived in the Folcroft Avenue property until late 2007 when they all moved into the Canning Court property.

(h) Mohan paid the down payment on each of the houses that the parties lived in, at Byng Avenue, Folcroft Avenue and Canning Court, and title to each of these properties was in his name.

(i) Holguin moved out of the Canning Court property in or about January 2009.

(j) Mohan and Holguin have not lived together at the same address since in or about January of 2009.

(k) Mohan, Vasili and Jesse remained at the Canning Court property after Holguin left.

(l) Mohan paid $15,000.00 to Holguin in 2009.

(m) Mohan removed Holguin as the beneficiary of his life insurance policy in March of 2009.

(n) Mohan gave Holguin a used Jeep and the transfer of title for that vehicle was formalized in or about April 2011.

(o) This application was commenced on October 22, 2020.

(p) The relief claimed in Holguin’s application is for a declaration of constructive trust over property held by Mohan, for an interest in the increase in value of the property post-separation and a freezing order. Holguin’s claim for equalization of net family property has been withdrawn.

[16] There are many contentious factual and/or legal issues raised in the pleadings and in the affidavits filed on this motion, including:

(a) were Holguin and Mohan cohabiting in a conjugal relationship within the meaning of the Family Law Act, R.S.O. 1990, c. F.3, during the period that they lived at the Byng Avenue, Folcroft Avenue and Canning Court properties with Vasili, and later also with Jesse, between 2002 and 2009;

(b) was there an agreement for Holguin to pay below-market (or any) rent to Mohan and was that agreement honoured by Holguin;

(c) did Holguin do renovation work and/or supply labour and materials to the Byng Avenue property when it was renovated shortly after the parties moved into it, or any of the other properties that the parties lived in;

(d) was Mohan unjustly enriched as a result of work or other contributions made by Holguin to the Canning Court property or any other property previously owned by Mohan;

(e) were Mohan and Holguin involved in a joint family venture with respect to the respondent’s business and/or the purchase, renovation, ownership, and eventual sale of the various properties that they lived in;

(f) did Mohan pay Holguin $15,000.00 in 2009 and give him a Jeep in 2011 as part of a partial settlement of the Family Law Act or trust claims; and/or

(g) was there an agreement reached in 2010 or 2011 between the parties for Holguin to share in the equity of the Canning Court property?

[17] None of these contentious points need to be determined for me to decide the limitations question. The factual dispute about why Mohan paid $15,000.00 to Holguin in 2009 and about whether there was some oral agreement reached in 2010 or 2011 between the parties for the future division of assets is primarily tied up in the question of when the parties ended their romantic relationship, in 2001 (as Mohan says) or 2011 (as Holguin says).

[18] The determination of when the relationship between the parties ended, however it may be characterized, is addressed in the next section of this endorsement in the context of the determination of the limitations question. If the limitations question is decided in favour of Mohan, it will be determinative of the entire case.

[19] Other assertions that have been made by Holguin that he maintains are relevant to the determination of the limitations question are as follows:

(a) Holguin asserts that an oral agreement was entered into in April 2011 between the parties about how they were going to divide/share their assets, and that he agreed to defer any payment he was to receive until the Canning Court property was sold. No particulars of this agreement (dates, details of what was said to whom about what would be shared, in what proportions and when) have been provided in Holguin’s affidavits or in the pleadings. The only details that can be discerned come from what Holguin said in his September 7, 2020 letter (attached to Mohan’s affidavit), paraphrased as follows: After Holguin moved out of the house in January 2009, at first he was planning to sue Mohan and force the sale of the house but he later agreed it did not make sense to force the sale of the house and agreed to wait until the house was sold to get his share. There is no evidence of any threatened legal proceedings prior to 2020.

(b) Holguin asserts that he learned during a phone call in July of 2020 that the respondent did not intend to give him any share of the Canning Court property. Holguin does not seek in this proceeding to enforce, or claim damages for the breach of, the alleged (or any other) agreement.

(c) Holguin asserts that Mohan took advantage of him, emotionally, financially, and physically. Aside from claiming that Mohan made fun of him from time to time and asked him to do physical housework, these assertions are not particularized in the affidavits or pleadings. The alleged, but unparticularized, emotional, financial, and physical abuse is no tied to any pleaded claim or cause of action in this proceeding.

[20] The applicant relies upon, among other cases, Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, Vanasse v. Seguin, 2008 35922 (ON SC), [2008] O.J. No. 2832, and Peter v. Beblow, 1993 126 (SCC), [1993] 1 S.C.R. 980, to claim an interest, by way of constructive trust, in the properties held in Mohan’s name that Holguin says were acquired in furtherance of a “joint family venture” that Holguin contributed to and that Mohan is now “unjustly” benefitting from as the owner of the Canning Court property. A trial, or “mini-trial”, under Family Law Rule 16(6.2) might be required to decide the merits of the constructive trust/joint family venture issue if it was not barred by the statute of limitations, as I have found to be the case in the next section of this endorsement.

The Legal Analytical Framework and its Application to this Case

The Test on a Summary Judgment Motion

[21] The framework for determining summary judgment motions comes from the Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 47 and 66. It requires that the judge be confident that the court has the evidence to make the factual findings required to adjudicate the dispute (by applying the law to the facts) and to reach a fair and just determination on the merits. The question to ask is whether there is a genuine issue “requiring a trial” and, if so, whether it is in the interests of justice for the judge to use the fact-finding powers to decide that issue. This can be considered in light of the goals of timelines, affordability, and proportionality.

[22] The procedure to be followed on a motion for summary judgment prescribed by the Supreme Court in Hryniak, at para. 66, is in two stages:

a) the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him or her without using the fact-finding powers in subrule 20.04(2.1) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194.

b) if there appears to be a genuine issue requiring a trial, Rule 20.04(2.1) permits the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial..

[23] The court may use the expanded fact-finding powers available under Rule 20.04(2.1) to resolve these issues if that will leave no genuine issue requiring a trial: see Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 75; 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, 83 B.L.R. (5th) 186, at para. 34.

[24] The Ontario Court of Appeal has confirmed that the Hryniak principles apply to summary judgment motions under the corresponding Family Law Rules (r. 16(6) and (6.1)). The parties are required to put their "best foot forward" and the motion judge is entitled to assume that the evidence before them is the best evidence available: see Chao v. Chao, 2017 ONCA 701, 99 R.F.L. (7th) 281, at paras. 24 and 27-28.

[25] The party responding to a summary judgment motion must adduce coherent evidence based on an organized set of facts to show that there is a real issue to be tried on admissible evidence. The responding party must "lead trump or risk losing." The court is entitled to assume that all of the evidence that the parties intend to rely upon at trial is before the court on the summary judgment motion: see Saltsov v. Rolnick, 2010 ONSC 914, 101 O.R. (3d) 599, at para. 45, per Wilson J. (partially dissenting, but not on this point).

There is no Genuine Issue Requiring a Trial to Decide the Limitations Question

[26] The only contentious factual question that needs to be determined for the court to decide the limitations question is whether the parties’ relationship, however it may be characterized, ended when Holguin moved out of the Canning Court property in or about January of 2009 (as Mohan says) or in 2011 (as Holguin says). This question can be decided on the evidentiary record before the court and does not require a trial.

[27] The evidence is clear and overwhelming that, even if the parties were involved in a conjugal common law relationship up until 2009 (which is a hotly contested fact), it ended in or about January of 2009:

a. Holguin moved out of the Canning Court property in January of 2009;

b. Mohan and Vasili both attest to the limited dealings and interactions between Mohan and Holguin after Holguin moved out (and their evidence about the interactions between the parties after January of 2009 is not contradicted with any further examples of interactions after January of 2009 in the responding evidence on this motion);

c. Shortly thereafter, and consistent with his statement that there was no relationship and limited dealings between the parties after Holguin moved out, Mohan made a significant payment of $15,000.00 to Holguin and removed Holguin as the beneficiary under his life insurance policy (the former is not contradicted by Holguin and the latter is affirmed by the evidence he filed on this motion); and

d. Holguin stated, in writing, in September of 2020, shortly before commencing this proceeding, that the reason he moved out in January of 2009 was because he needed to do something for himself and was not prepared to continue to live at the Canning Court property as a servant when Mohan was in love with someone else.

[28] I find, based on the evidentiary record on this motion, that the relationship between the parties ended in or about January of 2009. Mohan has met his onus as the moving party of demonstrating that there is no genuine issue requiring a trial about when the relationship between the parties ended.

[29] Any dealings that Mohan and Holguin had after January of 2009 were casual and are consistent with them having had a falling out in or about January of 2009. Mohan’s agreement to later transfer title to a used car to Holguin (which transfer took place in 2011), their casual meeting at a gathering of friends at a cafe and Mohan’s offer of a ride to the subway are not evidence that their relationship continued beyond 2009. These incidents, now relied upon by Holguin to suggest the relationship continued after January of 2009, do not corroborate the bald assertion by Holguin that their relationship did not end until April of 2011. Holguin has not met his burden as the responding party on this motion to show that there is a genuine issue requiring a trial for the court to determine when the relationship between the parties ended.

Use of the Court’s Fact-Finding Powers, if Required

[30] Even if the bald assertion by Holguin that the parties’ relationship did not end until 2011, and the circumstantial evidence about subsequent dealings between the parties, were considered by me to be sufficient to raise a genuine issue requiring a trial about when the parties’ relationship ended, the next step under the Hryniak framework laid down by the Supreme Court of Canada would be for me to invoke the fact-finding powers under r. 16(6.1) to determine whether a trial can be avoided through their use. Those powers enable me to weigh the evidence about the subsequent dealings between the parties and evaluate the credibility of the parties, and, in doing so, I arrive at the same finding, that their relationship ended in or about January of 2009.

[31] In Oxygen Working Capital Corp. v. Mouzakitis, 2021 ONSC 1907, at para. 42, Myers, J. sets out the following questions, which are among those that the court may consider if it appears that there may be a genuine issue requiring a trial and the enhanced fact-finding powers are engaged:

(a) Will making findings of fact on the evidence before the court provide a fair and just result as compared to a mini-trial or a trial?

(b) Does the material before the court illuminate the factual issue sufficiently to allow the judge to make findings of fact and credibility?

(c) Is there something missing that is needed for basic fairness despite the fact that the parties chose not to put that evidence forward?

(d) Do considerations of the litigation as a whole mandate some further process before making factual or credibility findings?

[32] Holguin’s assertion that the relationship between the parties continued after he moved out and until sometime in 2011 is inconsistent with Holguin’s own statement in his September 7, 2020 letter to Mohan (referred to above), and is not corroborated by any objective facts or third-party evidence. It is also inconsistent with what his own social worker, Ms. Patel, recorded him as having told her (as repeated in her letter dated October 19, 2020 appended to Holguin’s affidavit), that the relationship had ended approximately twelve years earlier.[^1]

[33] The evidence that the relationship between the parties ended in 2009 far overwhelms Holguin’s assertion now that it ended in 2011. I am able to make the finding now about when their relationship ended based on the materials filed, which I find to be sufficient for the assessments required on this point of credibility. The direct evidence from the respondent is supported by the circumstantial and surrounding evidence, and the bald assertion by Holguin stands on its own and is uncorroborated.

[34] Making the finding now that the parties’ relationship ended in January of 2009, with or without the use of the enhanced fact-finding powers, leads to a fair and just result. There is sufficient evidence to justly and fairly adjudicate this aspect of the dispute, which is determinative of the applicant’s claims asserted in this proceeding.

[35] Conversely, I do not consider that it would be in the interest of justice, or efficient or fair, to require the parties to go through the time, effort, and expense of a trial (or “mini-trial”) in these circumstances. Prolonging the inevitable defeat of the applicant’s claims when they are clearly statute barred (as discussed in the next section of this endorsement) does not serve the interest of justice in this case. The overarching principle is proportionality. Summary judgment ought to be granted unless the added expense and delay of a trial is necessary for a fair and just adjudication of the case. This is also consistent with the broader systemic concerns about resource allocation, efficiency, and the affordability of litigation.

[36] It is not necessary for me to determine whether Mohan and Holguin were at that time living in a conjugal relationship, nor is it necessary for me to determine any of the other factual issues raised by the applicant’s constructive trust and joint family venture claims. The end of the parties’ relationship started the limitation period running and, regardless of whether it was a two-year or ten-year limitation period, it had lapsed by the time this action was started in October of 2020. The analysis of the limitations question is elaborated upon in more detail below. The result is that this application is statute barred and the specific elements of the pleaded causes of action need not be determined, even if they might have required a trial but for the lapse of the limitation period.

The Limitations Question

[37] In general, pursuant to ss. 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24. Sched. B, there is a two-year limitation period that applies in Ontario. A claim must be advanced sooner than the second anniversary of the day in which the claim was discovered by the applicant (based on when they knew of their injury or loss having been caused or contributed to by the respondent or ought reasonably to have known). The applicant has the onus of proving that a claim was discovered on any date later than the date on which the act or omission on which the claim is based took place.

[38] Claims involving real property are exempted (under s. 2 of the Limitations Act) from the two-year limitation period and are governed by the Real Property Limitations Act, R.S.O. 1990, c. L. 15. Section 4 of that statute sets a ten-year limitation period as follows:

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.

[39] In McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, at paras. 38-42, the Court of Appeal held that when a proprietary remedy arising out of a constructive trust claim is sought, the Real Property Limitations Act and its ten-year limitation period to bring such a claim, applies. In general, the date of discoverability of this type of claim is the date of separation of the parties: see McConnell, at para. 52.

[40] The respondent argues that the applicant does not appear to be seeking a direct interest in the respondent's real property (for example, by way of vesting order), but rather, only a monetary remedy, and suggests that the two-year limitation period set out in the Limitations Act should apply to the constructive trust claims raised in this case. I would not decide this case based on the nuance of how this self-represented applicant has pleaded his constructive trust claim (and the absence of a specific request for a vesting order), as that may be a function of his lack of legal expertise.

[41] That said, even if the application could be broadly read as seeking a proprietary constructive trust remedy that enjoys the longer ten-year limitation period, the respondent’s summary judgment motion would be granted because the application was commenced more than ten years after January 2009 when the relationship between the parties ended and Holguin moved out of the Canning Court property.

[42] Holguin has tried to keep his claims alive by arguing that he only discovered that he had a claim during a phone conversation in July of 2020 when Mohan denied that Holguin had any interest in the Canning Court property. There are a number of difficulties with this position. First, as the Court of Appeal observed in McConnell, at para. 52, the limitation period for the constructive trust/joint family venture claim, in general, starts to run on the date of separation, which for purposes of this analysis would be when the relationship was found to have ended in January of 2009.

[43] To get around this, Holguin has asserted that the parties entered into an oral agreement in 2011 regarding his claimed interest in the Canning Court property (the implementation of which he says they agreed to defer until the property was sold) and he claims that he first “discovered” that Mohan intended to breach this agreement during the July 2020 phone conversation. While the two-year limitation period for a breach of contract claim might only start to run from the date of the breach, there is no claim for breach of contract being made in this proceeding and the alleged oral agreement is not particularized in any way that would allow the court to give effect to such a claim even if a request had been made to amend the pleadings to assert it, which it was not. In any event, domestic contracts (such as a separation agreement between two persons who cohabited, as is alleged by Holguin) must be in writing to be enforced, so this would not lead anywhere even if the request to amend had been made: see Family Law Act, ss. 54, 55. There is no assertion or evidence of any written agreement.

[44] Holguin further tries to argue that his claims should be treated as falling under the exception to which no limitation period applies, because they arise out of an alleged abusive relationship of dependency in which Mohan is said to have taken advantage of Holguin, emotionally, financially and physically. There is an exception under s. 16 of the Limitations Act that relates to specific proceedings said to be based on claims of sexual assault, misconduct of a sexual nature or assault that provides as follows:

No limitation period

16 (1) There is no limitation period in respect of,

(h) a proceeding based on a sexual assault;

(h.1) a proceeding based on any other misconduct of a sexual nature if, at the time of the misconduct, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the misconduct:

(i) the other person had charge of the person with the claim,

(ii) the other person was in a position of trust or authority in relation to the person with the claim,

(iii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;

(h.2) a proceeding based on an assault if, at the time of the assault, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the assault:

(i) they had an intimate relationship;

(ii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;

[45] This section of the Limitations Act does not apply to the circumstances of this case. There are no allegations of sexual assault, of misconduct of a sexual nature or of assault. Holguin attempts to characterize his relationship with Mohan as intimate and involving financial, emotional, or physical dependence. However, this dependence is only relevant under ss. 16 (h.1)(iii) and (h.2)(ii) of the Limitations Act if the claim is based on misconduct of a sexual nature or assault, and that is nowhere alleged.

[46] Holguin says he was “taken advantage of” emotionally, financially and/or physically, but provides no particulars or examples, aside from alleged teasing and being called names, being asked to do physical work around the house and NOT having shared finances. Taking Holguin’s allegations at their best, they do not amount to sexual assault, misconduct of a sexual nature or assault within the meaning of s. 16 of the Limitations Act, nor do they rise to the level of the type of conduct that enjoys the extraordinary exception provided for under s. 16 of the Limitations Act.

[47] I am not aware of, and was not presented with, any authority for the proposition that this section of the Limitations Act can be used to indefinitely extend a limitation period for a joint family property/constructive trust claim (whether it be two or ten years), even if made in the context of family violence or an abusive relationship.

[48] Nor is this a situation where Holguin was so much under the abusive influence of Mohan that he could credibly suggest that he had no idea that he had any rights or claims until he came out of therapy. To the contrary, he himself says that he left because he felt he was being taken advantage of, was not prepared to stay in the house as a servant and needed to do something for himself. He himself asserts that various settlements of claims and agreements were made in 2009 and 2011 based on his own assertion of rights at those times. In his September 7, 2020 letter, Holguin states: “At first, I was planning to sue you and force you to sell the house…” after giving his explanation for why he moved out of the Canning Court property in 2009.

[49] Holguin does not describe himself as someone who was paralyzed or blinded by abuse from asserting claims against the property, but rather describes himself as someone who knowingly and intentionally deferred those claims.

Final Disposition

[50] I have found that the parties’ relationship ended in January 2009. Holguin’s application was commenced in October of 2020, more than two (and more than ten years) after that, and is out of time under both the Limitations Act and the Real Property Limitations Act. There are reasons why we have limitation periods. Memories fade, evidence is not preserved, and prospective defendants/respondents are entitled to certainty and to order their affairs accordingly.

[51] The applicant’s claims are statute barred and this application is, therefore, dismissed.

Costs

[52] The parties agreed to exchange their respective Bills of Costs by October 8, 2021 outlining the amount of costs that they would be seeking from each other if they were the successful party on this motion. I understand that the exchange of Bills of Costs took place on October 8, 2021 as agreed, although I have not reviewed them as of yet. The court was advised that there are settlement offers that might be relevant to the determination of costs.

[53] As the successful party, the respondent is presumptively entitled to some costs. The parties are encouraged to try to work out an agreement regarding the costs of this motion now that the outcome is known.

[54] The respondent may deliver a cost submission of no more than three pages double spaced indicating the scale and quantum of costs sought, together with his previously delivered Bill of Costs and any settlement offers he made, by October 22, 2021. The applicant shall have until November 1, 2021 to deliver a responding costs submission of no more than three pages double spaced, together with his previously delivered Bill of Costs and any settlement offers he made. The respondent shall have an opportunity to make a reply cost submission of no more than 1.5 pages double spaced on or before November 5, 2021. Any authorities referred to in these submissions should be hyperlinked and/or PDF copies should be attached.

Kimmel J.

Date: October 14, 2021

[^1]: While the social worker has not provided any admissible evidence on the summary judgment motion (her unsworn letter contains inadmissible hearsay), to the extent that it reflects a statement made to her by the applicant that is inconsistent with the position he asserts now, that may be taken into consideration, together with the applicant’s own writing made around the same time, and both of which contradict his assertion now that the relationship between the parties continued until 2011.