COURT FILE NO.: CV-21-00668635-0000
DATE: 20220524
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FALLON MARGARET BATCHELOR
Applicant
– and –
ROSE MARGARET DACOSTA and LASCELLE DA COSTA
Respondents
Romesh Hettiarachchi, for the Applicant
Elaine F. Gordon, for the Respondents
HEARD: March 17, 2022
VERMETTE J.
[1] The Applicant brings this Application with respect to an agreement of purchase and sale signed by both the Applicant and the Respondent Rose Margaret Dacosta (“Ms. Dacosta”) as purchasers. The vendor is not a party to this Application. The Applicant seeks various relief against Ms. Dacosta, as well as an order that the Respondent Lascelle Da Costa (“Mr. Da Costa”) has no interest in the agreement of purchase and sale or the property itself. The closing date for the sale and purchase transaction is June 15, 2022.
[2] Ms. Dacosta is the Applicant’s mother. Mr. Da Costa is the Applicant’s uncle and Ms. Dacosta’s brother.
[3] The specific relief sought by the Applicant is as follows:
a. an Order that Mr. Da Costa has no interest in the agreement or the property;
b. an Order that the Applicant shall purchase the property in issue from the vendor on the closing of the transaction scheduled for June 15, 2022 in accordance with the terms of the agreement of purchase and sale on the following conditions:
i. Title. The Applicant shall hold title to the property in trust for the benefit of the Applicant and Ms. Dacosta in shares reflecting the financial contributions the Applicant and Ms. Dacosta have each made towards the purchase (each contribution being a party’s “Initial Financial Contribution”) at the time of the hearing of the Application (each share, a “Proportionate Beneficial Interest”);
ii. Contributions After Closing. After the closing date, the Applicant and Ms. Dacosta shall each contribute their proportionate share of the following costs (“Proportionate Share of Expenses”):
Financing expenses;
Insurance costs;
Real property taxes, rates and assessments; and
Maintenance and repair costs;
iii. Default. If either the Applicant or Ms. Dacosta fails to pay their Proportionate Share of Expenses (the “Unpaid Share of Expenses”) then the other party may pay the defaulting party’s Unpaid Share of Expenses;
iv. Consequences of Continuing Default. If at any time after the closing date, the cumulative Unpaid Share of Expenses of a defaulting party exceeds that party’s Initial Financial Contribution, the non-defaulting party may apply to the Court for an Order declaring the defaulting party no longer has a beneficial interest in the property;
v. Right of First Offer. Neither party has the right to sell, transfer or otherwise convey, or agree to sell, transfer or otherwise convey, all or any portion of their Proportionate Beneficial Interest in the property to a third party unless
that party has first offered to sell its Proportionate Beneficial Interest in the property to the other party on the same terms and conditions that the party wishes to sell to a third party; and
the other party does not accept the offer to sell within ten business days;
vi. Sale. The Applicant has sole discretion to sell the property after the closing date. If the Applicant decides to sell the property,
The Applicant will have sole discretion in all aspects of the sale process. The Applicant is not required to seek any approval, authorization or consent from either Respondent to any aspect of the sale of the property;
On closing of that sale transaction, the proceeds of that sale shall be distributed between the Proportionate Beneficial Interests of the Applicant and Ms. Dacosta at the time of closing of that subsequent transaction;
Any dispute associated with the division of the proceeds of a subsequent sale of the property shall be resolved in an Application commenced before this Court;
c. an Order directing Ms. Dacosta to do and perform, or cause to be done and performed, all such further acts and things, and to execute and deliver all such other agreements, certificates, instruments and documents, as the Applicant may reasonably request, to facilitate the closing of the transaction in accordance with the agreement;
d. if Ms. Dacosta fails to cooperate to facilitate the closing of the transaction, an Order dispensing with her signature to facilitate the closing of the transaction.
[4] This Application was commenced against Ms. Dacosta on September 13, 2021. In February 2022, Mr. Da Costa brought a motion to be added as a Respondent on the basis that he was a person whose presence was necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding (i.e. on the basis of Rule 5.03(1) of the Rules of Civil Procedure). On February 25, 2022, counsel for the Applicant advised that the Applicant did not oppose the motion on the condition that there be no change to the timetable, that the Application proceed based on Mr. Da Costa’s affidavit provided in support of his motion, and that the issues raised by Mr. Da Costa be resolved at the hearing. The Respondents agreed and the Application was argued on this basis.
[5] It is not clear to me whether a formal order has been obtained to add Mr. Da Costa as a Respondent to the Application as none is included in the materials before me. I note, however, that the Second Fresh as Amended Notice of Application dated March 11, 2022 includes Mr. Da Costa’s name in the title of proceeding. If necessary, I order that Mr. Da Costa be added as a Respondent as I am satisfied that the test under Rule 5.03(1) is met.
[6] On May 13, 2022, in light of the approaching closing date, I issued a short endorsement indicating that: (a) the Application was dismissed as against Ms. Dacosta, with reasons to follow, as I found that there was no legal basis to order the relief sought as against Ms. Dacosta; and (b) I found that Mr. Da Costa had not proven that he had an interest in the property, with reasons to follow. These are my reasons.
FACTUAL BACKGROUND
A. The Agreement of Purchase and Sale
[7] The following are the facts that are not in dispute or that are reflected in documents. The parties’ evidence regarding alleged oral agreements or verbal discussions is reviewed later in these reasons.
[8] On January 18, 2021, the Applicant and her husband signed an Agreement of Purchase and Sale with First View Homes (Scarborough) Inc. (“FirstView” or “Vendor”) for the purchase of a house to be constructed in Alliston (part of the Town of New Tecumseh, Ontario) (“Property”) for a purchase price of $767,900.00 (“APS”).[^1] The APS required that a $60,000 deposit be paid by July 28, 2021, in seven monthly instalments of either $10,000 (in January, April, May, June and July) or $5,000 (in February and March).
[9] The sales representatives for the development where the Property is located are The Treetops (“Treetops”). On January 12, 2021, i.e. prior to the execution of the APS on January 18, 2021, Mr. Da Costa sent an e-mail to Treetops to ask for the floor plan and stated that he was “very much interested in your property”. On the same day, someone at Treetops sent him a link to the floor plans, but pointed out that they were currently sold out and waiting for pricing for the next release. Mr. Da Costa forwarded this exchange of e-mails to the Applicant late on January 12, 2021.
[10] On January 13 and 15, 2021, the Applicant sent e-mails to Mr. Da Costa about two different developments, one in Welland and one in Innisfil. On January 13, 2021, Mr. Da Costa sent an e-mail to the Applicant about two houses that had come out on the market in New Tecumseth.
[11] On January 17, 2021, i.e. the day before the Applicant and her husband signed the APS, a Treetops sales representative sent an e-mail to the Applicant specifying the “lot assigned to you” and outlining the information that was needed to prepare the APS, including the “Full Legal Names of Purchaser(s)”. The Applicant forwarded this e-mail to Mr. Da Costa on the same day, without adding any text.
[12] On January 26, 2021, the Applicant and her husband were pre-approved for a mortgage loan by First National Financial LP in the amount of $614,320.00.
[13] On or about the same date, the Applicant borrowed $10,000 from Ms. Dacosta for the purpose of making the initial deposit on the Property. The Applicant paid the $10,000 deposit to FirstView on January 29, 2021 by bank draft.
[14] On January 30, 2021, a Treetops sales representative sent the following e-mail to the Applicant:
Hello Fallon,
It was a pleasure meeting everyone today 🙂
I will be sending all of the paper work over to you tomorrow for signatures. Please show your uncle the standard feature sheet as attached 🙂
[15] The attachment was a short one-page document entitled “Features and Finishes” which included basic information (9 bullet points) about countertops, flooring, staircase, baseboards, fireplace, etc. The document also included information about the required deposit, i.e. $60,000 for detached lots payable in five monthly installments.
[16] On January 31, 2021, the Applicant and her husband executed an amendment to the APS stating that the APS was firm and binding.
[17] On February 16, 2021, the APS was amended in order to substitute Ms. Dacosta for the Applicant’s husband as the second purchaser. This amendment appears to have been prepared on February 9, 2021, but signed on February 16, 2021. At the time, to the knowledge of the Applicant, Ms. Dacosta was unemployed – she had been laid off as a result of the COVID-19 pandemic – and was receiving employment insurance benefits. Ms. Dacosta lived with her youngest daughter’s family (including her daughter’s husband and two children), as well as Mr. Da Costa.
[18] On February 22, 2021, the APS was amended to change the structure of the deposits. Following the amendment, the following deposit payments were due:
a. $5,000 on February 28, 2021;
b. $5,000 on March 28, 2021;
c. $5,000 on April 28, 2021;
d. $5,000 on May 28, 2021;
e. $5,000 on June 28, 2021;
f. $5,000 on July 28, 2021;
g. $10,000 on August 28, 2021; and
h. $10,000 on September 16, 2021.
[19] The deposit payments that were made pursuant to the APS are discussed below.
[20] On January 7, 2022, the Applicant was pre-approved for a mortgage loan by the Bank of Nova Scotia in the amount of $614,320.00.
B. Communications between the parties
[21] On January 31, 2021, the Applicant created a group chat on WhatsApp called “Alliston” (i.e. where the Property is located). The members of the chat group were the Applicant, Ms. Dacosta and Mr. Da Costa.
[22] On March 20, 2021, the Applicant sent the following message to Ms. Dacosta:
100% $767,900.00
20% $153,580.00
80% $614,320.00
5% $ 38,395.00
Princess [Ms. Dacosta]
$10,000.00
Jan -$3,000.00
Feb -$2,000.00
Mar -$1,500.00
April -$1,500.00
May -$2,000.00
Remaining Balance $0.00
[23] Ms. Dacosta’s evidence is that this document shows that the $10,000 loan that she gave to the Applicant in late January 2021 was to be credited as against her portion of the monthly deposits due under the APS until the month of May. The record before me does not include any explanation of the Applicant regarding the meaning of this document, nor does it include an explanation as to why this document was sent in late March 2021.
[24] On March 23, 2021, someone in the Alliston chat group (it is disputed as to whether it is the Applicant or Mr. Da Costa) sent the following message:
March 28 payment…
Lascelle..$2000.. Rose..$1500.. Fallon..$1500
April 28..
Lascelle $1500.. Rose..$2000.. Fallon…$1500…
May 28..
Lascelle..$1500… Rose….$1500.. Fallon…$2000.
So by may [sic] 28 2021 payment we will all have made a payment of $10000 each to make a deposit of $30000 on the property
[25] It appears that the Applicant reposted this message in the chat group on April 27, 2021.
[26] In early May 2021, there was a breakdown in the relationship between the Applicant and Ms. Dacosta. Based on the evidence before me, the cause of the breakdown is unclear, and each side has a different explanation for it. The breakdown appears to have taken place on or around May 5, 2021. On that day, the Applicant, Ms. Dacosta and Mr. Da Costa went to the Vendor’s decor center.
[27] The Applicant’s evidence is that Ms. Dacosta has repeatedly advised her that she was no longer interested in purchasing the Property. On May 5, 2021, the Applicant sent an e-mail to Ms. Dacosta stating that the two of them could inform the Vendor that they would like to amend the APS to remove Ms. Dacosta’s name as a purchaser. The Applicant added that she would return the money sent thus far after the amendment to the APS was signed and completed.
[28] Later on the same day, the Applicant received an e-mail from Mr. Da Costa telling her, among other things, to remove her name from the APS and go look for another house. The e-mail contained abusive language.
[29] On May 6, 2021, Ms. Dacosta sent an e-mail to Treetops asking that Mr. Da Costa be added to the APS as a third purchaser. Ms. Dacosta did not copy the Applicant on her e-mail.
[30] On May 8, 2021, the Applicant sent an e-mail to Treetops regarding this request, with a copy to Ms. Dacosta. Her e-mail read, in part:
At this point in time, I am not in agreement to have Lascelle DaCosta added to the purchase agreement for Lot 28. Please disregard the email request to add his name to the purchase agreement. If any other changes are to be made besides the requested removal of Rose’s name upon her own admission – I believe it can [be] done upon closing later this year. Please let us know if you require any further information from us.
The last communication I had with Rose on May 5th is that she is no longer interested in participating in the purchase of Lot 28. I have made her aware that I am not interested in having Lascelle DaCosta[’s] name added to the purchase agreement at this moment in time and she should communicate her request to the office via email to get her [sic] have her name removed if this [is] her desire.
I have made a kind request to Rose to please copy me on all replies/ emails that concerns [sic] Lot 28 to and to [sic] the office in real-time?
I noticed that a few emails were sent from Rose’s email address and there was no cc to my email address […]
This will ensure that all the communication is communicated at the same time and the purchaser(s) are made aware of what occurs in real-time to avoid any further miscommunication and misunderstanding[.]
[31] On May 11, 2021, Ms. Dacosta sent the following e-mail to FirstView:
To whom it may concern
I would like to cancel the upgrade for lot 28. On this purchase there is [sic] two person [sic] on this purchase not one making the decision.
So I would like to get a new appointment so it will be less confusing an argument
.two decision [sic] not one..
[32] Ms. Dacosta received the following response:
Hi Rose
We have a review meeting scheduled for May 26th at 2pm. We can discuss any change at point.
[33] On May 13, 2021, the Applicant sent the following e-mail to Ms. Dacosta:
As per your request on May 5th, 2021 you stated that you would like for me to return the money that you’ve paid thus far.
I have done my part in sending emails and text communication to the office and cc your email to honour your request to have no further dealings with me as it pertains to the purchase agreement.
I am more than willing and able to return all the monies as soon as you send the request in writing that you are no longer interested in purchasing the property and as per your request to remove your name from the purchase agreement.
I will wire transfer, or mail the money order to you after the amendment is signed and complete.
Please let me know what you decide.
[34] On the same day, Mr. Da Costa sent another very abusive e-mail to the Applicant telling her to “take her money and go” and stating that the Vendor had “received a letter from my lawyer stated [sic] that there is more than one person in this agreement not one ...” I note that no such letter is included in the materials before me.
[35] On May 26, 2021, counsel for Ms. Dacosta and Mr. Da Costa sent the following e-mail to the Applicant:
Please be advise [sic] that I act on behalf of Ms. Margaret Rose Dacosta and Mr. Lascelle Da Costa in presenting you with this Agreement to transfer Mr. Da Costa[’s] beneficial interest in the purchased property.
In this regard, I have attached the Agreement signed by both of the above.
If you are in agreement, I ask that you sign the Agreement, insert the day on the top of the front page and on the signing page and return it to me at this email address.
If you do not agree please provide me with your reason for so doing, and any counter offer you may have.
I look forward to hearing from you.
[36] The draft agreement attached to the e-mail (“Draft Agreement”) was an agreement between the Applicant, Ms. Dacosta and Mr. Da Costa. It was signed by Ms. Dacosta and Mr. Da Costa. It provided that each of the Applicant, Ms. Dacosta and Mr. Da Costa held a 33.33% beneficial interest in the Property, and that Mr. Da Costa would transfer his beneficial interest to Ms. Dacosta for $50,000 so that Ms. Dacosta would then hold a 66.66% interest in the Property. The Draft Agreement read as follows:
WHEREAS the parties entered into a verbal agreement to purchase real property described as Lot 28, Phase 4, Plan 51M-TBA Alliston, Ontario from the builder, Fairview [sic] Homes (Scarborough) Inc.;
AND WHEREAS the parties agreed that each would be the beneficial owner of one-third (33.33%) interest in the property and has each paid $10,000.00 towards the downpayment on the property;
AND WHEREAS the parties agreed initially that [Mr. Da Costa] would not be added as a purchaser on the agreement of Purchase and Amendment signed on February 21, 2021;
AND WHEREAS [Mr. Da Costa] has changed his mind and requested, on at least three occasions, that his name be added on the written Agreement of Purchase and Sale;
AND WHEREAS [the Applicant] has consistently denied [Mr. Da Costa’s] requests to be added to the Agreement of Purchase and Sale[.] [Mr. Da Costa and Ms. Dacosta] has [sic] agreed that [Mr. Da Costa] will sell and transfer his beneficial interest in the property to [Ms. Dacosta], the parties hereto desire to enter into this agreement to formally set out the terms of the agreement being entered into[.]
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective covenants and agreements of the parties contained herein, the sum of One Dollar now paid by each party hereto to each of the other parties, hereto, and other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged by each of the parties hereto), it is agreed as follows:
- Beneficial Interest. The Trustee further acknowledges and declares that the beneficial interest in the property is held as follows:
Names Share
Fallon Margaret Batchelor 33.33%
Lascelles [sic] Da Costa 33.33%
Rose Margaret Dacosta 33.33%
Total 100.00%
Transfer of Beneficial Interest. The parties agree that [Ms. Dacosta] will pay to [Mr. Da Costa] $50,000.00 for his one-third beneficial interest in the property. [Ms. Dacosta] will then become two-thirds beneficial owner of the property.
Title to the Property: At the closing of the transaction with the builder and title Transfer, the title to the property shall be registers [sic] as follow:
Dacosta, Rose Margaret as to 66.6% interest as tenant-in-common Batchelor, Fallon Margaret as to the remaining 33.3% as tenant-in-common
Payment of the Balance of Downpayment: [Ms. Dacosta] will be responsible for two-thirds of the balance of the downpayment and the balance of the purchase price on closing of the transaction.
Increase in Value of the Property: [Ms. Dacosta] will be entitled to two-thirds of the appreciation in the value of the property and [the Applicant] will be entitle [sic] to one-third of the increase in the value of the property.
This agreement is binding on the parties[,] their heirs, executors, administrators, successors and assigns.
[37] After receiving the e-mail and Draft Agreement from counsel for the Respondents, the Applicant retained counsel. On June 1, 2021, counsel for the Applicant sent the following letter to counsel for the Respondents:
I represent Ms. Batchelor with respect to your correspondence of May 26, 2021.
The draft agreement attached to your correspondence does not accurately reflect discussions between the parties. Mr. [Da Costa] has no interest in the Property. He also does not have any interest in the transaction.
Ms. Batchelor was the original purchaser in the transaction and continues to be responsible for all decisions associated with the Property as it is being built.
By way of separate correspondence, you will be receiving a cheque directed to Mr. [Da Costa], constituting full payment of all monies Mr. [Da Costa] has loaned to the Purchaser. This payment constitutes full payment of the monies paid.
In terms of closing, I am happy to explore opportunities to resolve this matter amicably. However, with Ms. Batchelor being the original purchaser, you can expect that Ms. Batchelor will be primarily responsible for the closing of the transaction and all communications with the builder at all times.
Please advise of your availability for a call.
[38] Counsel for the parties subsequently exchanged additional correspondence. No resolution was achieved, and this Application was commenced on September 13, 2021.
C. Payments between the parties and to FirstView
[39] As stated above, the Applicant paid the first deposit to FirstView in the amount of $10,000 on January 29, 2021 by bank draft. It is undisputed that the Applicant obtained the funds to make this payment from Ms. Dacosta. Ms. Dacosta and Mr. Da Costa allege that an additional $3,500 was provided to the Applicant in cash at about the same time, which funds came from Mr. Da Costa.
[40] On February 25, 2021, Ms. Dacosta received $1,500 from Alecia Reece by e-transfer. On the same day, Ms. Dacosta transferred $1,500 to the Applicant by e-transfer. The evidence before me is that Alecia Reece is a friend of Mr. Da Costa.
[41] On February 26, 2021, the Applicant provided a bank draft in the amount of $5,000 to FirstView.
[42] The subsequent deposit payments to FirstView were made by cheques. The Applicant provided cheques to FirstView dated March 28, April 28, May 28 and June 28, 2021, each in the amount of $5,000.
[43] On March 27, 2021, Ms. Dacosta received $2,000 from Alecia Reece by e-transfer. On the same day, Ms. Dacosta transferred $2,020 to the Applicant by e-transfer.
[44] On April 27, 2021, Ms. Dacosta received $1,500 from Alecia Reece by e-transfer. On April 28, 2021, Ms. Dacosta transferred $1,500 to the Applicant by e-transfer.
[45] On May 26, 2021, Ms. Dacosta received $2,500 from Alecia Reece by e-transfer. Contrary to what was done in February, March and April, these funds were not transferred to the Applicant. Instead, on May 27, 2021, a bank draft in the amount of $5,000.00 to the order of FirstView was obtained by Ms. Dacosta, whose name appears on the draft as the remitter. This payment was in addition to the $5,000 cheque provided by the Applicant for the May deposit.
[46] On June 8, 2021, FirstView wrote the following letter:
To Whom It May Concern:
This letter is to confirm that First View Homes (Scarborough) Inc has received a deposit on the above-mentioned lot totaling Thirty-Five Thousand Dollars ($35,000.00). A Deposit of Ten thousand dollars was received on January 29, 2021 and Deposits of Five Thousand dollars were received on February 26, March 28, April 28, May 27 and May 28, 2021 respectively.
There are further deposits due totaling Twenty-Five Thousand Dollars ($25,000.00). The amounts are Five Thousand ($5,000.00) due July 28, and two amounts of Ten thousand Dollars ($10,000.00) due on August 28 and September 16, 2021.
If you have any further questions Please [sic] contact me.
[47] On June 26, 2021, Ms. Dacosta obtained another bank draft to FirstView in the amount of $6,500. On June 28, 2021, the Applicant wrote a cheque to FirstView in the amount of $23,500. These payments were in addition to the $5,000 cheque already provided by the Applicant for the June deposit.
[48] On July 19, 2021, Ms. Dacosta sent an e-mail to FirstView asking about the deposit payments that had already been made. She received the following answer on the same day:
The following 9 cheques are the deposits received as of July 19, 2021:
- Feb 8 $10.000.00 2. March 2 $5,000.00 3. March 30 $5,000.00 4. April 29 $5,000.00 5. May 28 $5,000.00 6 May 31 $5,000.00 7 June 28 $5,000.00 8. June 30 $23,500.00 9. June 30 $6,500.00
Total Received as of July 19th is $70,000.00
We also have 3 post dated cheques which will be held and returned back to you
July 28 $5000.00 Aug 28 $ 10,000.00 Sept 28 $10,000.00
See attached copies of cheques
THE PARTIES’ EVIDENCE
A. The Applicant’s evidence
[49] The Applicant states in her affidavit that she and her husband had a discussion about relocating and, as a result, the Applicant started to do research to find a new place to live. In the course of doing her research, she asked a number of people, including Mr. Da Costa, if they had information about new developments. The Applicant learned of Treetops from Mr. Da Costa in December 2020.
[50] The Applicant’s evidence is that after signing the APS with her husband, she had discussions with Ms. Dacosta about the latter joining in the purchase of the Property with her. The Applicant describes her agreement with Ms. Dacosta as follows:
After the Purchase Agreement had been signed in January 2021, my mother, Rose Margaret Dacosta (“Ms. Dacosta”), expressed her interest to purchase a property with me to live in.
Rather than purchase another property with my mother, I suggested my mother consider joining in the purchase this [sic] Property with me on the condition that Ms. Dacosta contribute her share of finances towards the mortgage, maintenance and upkeep of the Property.
Ms. Dacosta agreed to my offer to add her as a purchaser under the Purchase Agreement on the condition that she contribute her share of finances towards the mortgage, maintenance and upkeep of the Property. As a result, I emailed the Vendor to request an amendment to the Purchase Agreement to have Ms. Dacosta replace Adrian as the second purchaser under the Purchase Agreement. The Vendor provided the amendment as requested which was promptly signed and returned to the Vendor in February 2021. […]
[51] The Applicant states in her affidavit that after Ms. Dacosta became a party to the APS, the Applicant started becoming concerned about Ms. Dacosta’s ability to contribute financially to the Property. She further states that Ms. Dacosta ignored the Applicant’s attempts to ascertain how Ms. Dacosta was planning to pay her share of monies towards the transaction.
[52] The Applicant explains the breakdown in her relationship with Ms. Dacosta as follows:
As a result of these repeated inquiries, my uncle, Lasscelles [sic] Dacosta (“Mr. Dacosta”) become [sic] involved, insisting that my mother should purchase the Property alone and that I should not be allowed to purchase the Property. Over time, Mr. Dacosta’s false and disparaging statements about me led to a serious break down in communication between me and Ms. Dacosta when it comes to the key decisions affecting the purchase of the Property and the satisfaction of the Purchasers[’] responsibilities under the Purchase Agreement and the general erosion of the relationship between my mother and I. […]
I firmly believe Mr. DaCostas [sic] has deeply wounded the relationship between my mother and I. By way of example, Ms. Dacosta has repeatedly advised me that she was no longer interested in purchasing the Property. When I replied to [Ms. Dacosta’s] last email offering to return her deposit monies if she removed her name from the Purchase Agreement, Mr. Dacosta intervened by disparaging me and my financial history. I firmly believe this matter would have been resolved amicably if it were not for Mr. Dacosta.
[53] The Applicant states that the Draft Agreement prepared by counsel for the Respondents is materially false. The Applicant’s evidence regarding the contents of the Draft Agreement is as follows:
a. She did not agree at any time verbally or in writing to purchase the Property together with Ms. Dacosta and Mr. Da Costa.
b. She did not agree at any time to add Mr. Da Costa as a third purchaser under the APS.
c. While the Applicant admits that Mr. Da Costa advised her in February and March of 2021 that he would be contributing monies to the purchase price, she did not directly receive any monies from Mr. Da Costa. The Applicant only received monies from Ms. Dacosta and denies receiving $3,500 directly from Mr. Da Costa. To the best of the Applicant’s knowledge, Mr. Da Costa loaned certain monies to Ms. Dacosta so that she could contribute her share towards the purchase price. The Applicant states that she has no knowledge of the terms Mr. Da Costa attached to the loan of these monies to Ms. Dacosta.
d. She did not agree to having beneficial ownership split between Mr. Da Costa, Ms. Dacosta and her equally three ways.
[54] During her cross-examination, the Applicant stated that she had started repaying her $10,000 loan to Ms. Dacosta, and that she had made a payment of approximatively $3,000 on March 22, 2021. However, this is not supported by any documentary evidence.
[55] According to the Applicant, this Application was brought to facilitate a smooth closing of the transaction and to prevent the forfeiture of the deposits “as a result of Ms. Dacosta failing to cooperate in closing the Transaction.” The Applicant is also concerned about Ms. Dacosta’s future ability to satisfy her financial obligations with respect to paying her share of the mortgage and maintenance costs associated with the Property. The Applicant asserts that she is ready, willing and able to transfer funds to Ms. Dacosta to reimburse her for any monies she has paid to FirstView.
B. Ms. Dacosta’s evidence
[56] Ms. Dacosta’s evidence is that on January 15, 2021, the Applicant, Mr. Da Costa and she agreed to purchase a property jointly from FirstView for the price of $767,000.00. The agreement was that they would each have a 1/3 interest in the property and be responsible for 1/3 of the downpayment and closing costs, and that Ms. Dacosta and the Applicant would execute the agreement of purchase and sale and hold Mr. Da Costa’s interest in trust.
[57] Ms. Dacosta states the following in her affidavit with respect to the issue of payments:
Initially the Applicant had no funds of her own, but was involved in a Pyramid scheme, from which she expected to get her share of the downpayment. She told me that she would get her monies in March 2021 and therefore need to borrow $10,000.00 from me to put toward her the loan [sic] by crediting me (a.k.a. “Princess”) with deposits in the amount of the loan.
On that basis the Respondent [sic] promise, I loan [sic] her the $10,000.00 by the way of a cash payment.
On or about March 20, 2021, the Applicant message [sic] me and provided me with a breakdown of my deposits from January 2021 through to May 2021 wherein by the end of May, my share of the deposits would be satisfied. […]
The contents of the message is consistent with the schedule the Applicant and [Mr. Da Costa] had made stating our contribution toward the deposits, which was sent in our Whatsapp group chat called “Alliston”, created by the Applicant. […] Thereafter he would give his portion of the deposit to the Respondent [i.e. Ms. Dacosta] who then delivered it to the Applicant to make the deposits.
[Mr. Da Costa] informed me that he had given to the Applicant $3,500.00 cash as for his share of the initial deposit. Thereafter, he sent his share of the deposits to me, to deliver to the Applicant. I sent them to her by email transfer for the months of February, March and April 2021, totalling $5,020.00. […]
In or about May 2021, the relationship between the Applicant and me and [Mr. Da Costa] started to breakdown when the Applicant submitted a list of upgrades to the vendor, that were not approved by us. When asked why she did not consult with, [sic] us she stated that she has the authority to deal unilaterally with the builder without our consent. That was incorrect, as I was a party to the agreement and at no time consented to her making decisions without consulting me.
Upon observing attitude and actions of the Applicant, I and [Mr. Da Costa] decided to become more hands-on in dealing with the vendor. We decided to pay the balance of the installments directly to the Vendor and not through the Applicant. So in May we deposit [sic] a draft in the amount of $5,000.00 and in May [sic] another draft in June in the amount of $6,500.00. […]
[Mr. Da Costa] informed me that he wanted his name added to the agreement to protect his interest. I submitted a request to the vendor requesting that he be added to the agreement. The Vendor’s agent Heidi Crowther forwarded the request to the Applicant who replied and stated that “At this point in time, I am not in agreement to have Lascelles Dacosta added to the purchase agreement . . .” At no time, did she say [Mr. Da Costa] had no interest in the transaction. […]
At the end of May each of us, the Applicant, [Mr. Da Costa] and I, were to have a total of $10,000.00 deposited for a total of $30,000.00. The $10,000.00, which I lent to the Applicant, covered my share of the instalment payments.
$2,500 of the $5,000.00 I paid the vendor on May 25, 2021, $2,500.00 was mine and the remaining $2,500.00 was [Mr. Da Costa’s]. Of the $6,500.00 paid $2,500.00 was mine and the remaining $4,000.00 was from [Mr. Da Costa]. So by the end of June I had made deposits in the amount of $15,000.00. The total deposits that were to be made by the [sic] June 28, 2021, according to the deposit schedule was $35,000,00. My share of that is $11,667.00, which means that I had deposited more that [sic] my 1/3 share.
When [Mr. Da Costa and] I attempered [sic] to make our share of the July’s [sic] instalment, the vendor informed me that the entire amount was made and he would not accept any further deposit as the deposits had totaled $70,000.00, $10,000.00 more than the agreed amount. […]
I believe the Applicant made the extra deposit of $10,000.00 in June 2021 because she intended to bring this application and make the claim that she had a greater interest in the property.
At the time of the agreement I was employed with the same company where I have worked for the past 14 years. I was laid-off due to the COVID-19 pandemic but have since been called back to work. I will be able to qualify for a mortgage and be able to pay my share any [sic] costs and expenses pertaining to the property.
[58] During her cross-examination, Ms. Dacosta stated that she had given $13,500, not $10,000, to the Applicant on January 26, 2021 as she had given an additional $3,500 in cash to the Applicant on behalf of Mr. Da Costa. Ms. Dacosta said that Mr. Da Costa subsequently paid her back $3,500. This evidence is contrary to the evidence set out in paragraph 6 of her affidavit (reproduced above).
[59] Also during her cross-examination, Ms. Dacosta said that she had evidence that she was qualified for a mortgage. Her counsel offered to give an undertaking to produce that evidence, but counsel for the Applicant refused and said that he did not want an undertaking.
C. Mr. Da Costa’s evidence
[60] In his affidavit, Mr. Da Costa states that the Applicant came to see him in early January 2021 to ask him if he would purchase a house with her. His evidence regarding the agreement between the parties is as follows:
On or about January 10, 2021, my niece, the Applicant, came to see me in my office and informed me that she was having marital problems with her husband and he no longer wanted to live full time in their home in Ajax, Ontario. She said the title is registered in his name and there was not much equity in the home for her to take out and purchase another property. She also stated that her credit was not good enough to qualify for a mortgage on her own and proceed [sic] to ask me if I would purchase a house with her.
The Applicant further stated that she would live between the two residences. She said she would stay in Ajax during the week for work purposes and return the property in the west end on the weekends. She said for this purpose she would only need to occupy one room with her daughter and her mother, sister’s family and I would occupy the rest of the property.
At the time, I was looking into purchasing a place to live, as I was living with [Ms. Dacosta’s] other daughter, Krystal Kelly, and her husband and child, in an apartment that was too crowded. So, I agreed to purchase a house with her. We agreed that we each would contribute $50,000.00 to the purchase.
Shortly after coming to that agreement, I suggested that we should invite her mother, [Ms. Dacosta] to join us in purchasing the property. She agreed and I immediately telephoned [Ms. Dacosta] and informed her of our plans, and asked her if she wanted to be a part of it. [Ms. Dacosta] did not immediately agree as she did not understand the payments structure that we were proposing. I advised [the Applicant] to speak with her mother and explain our plans to her in more detail, to see if she would be convinced to invest with us
[Ms. Dacosta] eventually agreed to join us in purchasing the property and we agreed to an equal share in the transaction. We agreed that we each would contribute $50,000.00 toward the purchase for a total of $150,000.00.
[61] Mr. Da Costa’s evidence is that after reaching this agreement, he forwarded to the Applicant the link to Treetops’ website as he was already corresponding with Treetops about purchasing one of their properties. He states that while negotiating with Treetops, the Applicant and he continued looking at other proposed developments in the west end of the Greater Toronto Area. According to Mr. Da Costa, it was agreed that: (1) the Applicant and Ms. Dacosta would sign the agreement and hold his interest in trust; and (2) the Applicant would be the one to communicate with the Vendor for future communications after the agreement was signed.
[62] Mr. Da Costa states that he and Ms. Dacosta did not know that the Applicant was going to sign the APS with her husband. His evidence is that the Applicant advised him that she had done so on January 28, 2021, i.e. 10 days after she signed the APS. According to Mr. Da Costa, the Applicant indicated to him that she still intended to go ahead with Mr. Da Costa and Ms. Dacosta, and that she had signed the APS with her husband because Ms. Dacosta “was not moving fast enough to secure the deal” and the Applicant did not want to lose the chance to purchase the Property. Mr. Da Costa mentions that they “had a deadline to accept the offer by January 28, 2021.”
[63] Mr. Da Costa states the following in his affidavit with respect to what happened next:
I telephoned Heidi [of Treetops] and asked her if we could amend the Agreement and removing [sic] Adrian and add [Ms. Dacosta]. She said it could be done after we made the initial deposit of $10,000.00. On January 30, [Ms. Dacosta, the Applicant] and my self [sic] attended at the vendor[’]s sales office and Met [sic] Heidi Crowther, who prepared the amendment to the amercement [sic].
I gave Applicant $3,500.00 cash on or about January 28, 2021, as my share of the initial $10,000.00 to deposit. Thereafter, I sent my share of the deposits to [Ms. Dacosta] through my friend, Alecia Reece who emailed it to [Ms. Dacosta] and; [Ms. Dacosta] would then email it to [the Applicant]. [The Applicant] recognized these payments in our group chat she created called Alliston. Where in [sic] on March 23, 2021 she showed a schedule of the remaining payment to be made up to May 28, 2021 and I had only $5,000.00 reaming [sic] to pay to bring my total up to $10,000.00[.] […]
On or about May 5, 2021, the Applicant, [Ms. Dacosta] and I attended at the vendor’s Decor Center to pick colours. When we got there, [the Applicant] began to select up grades [sic] that we did not agree to and that would increase the purchase price significantly. The Representative, who was dealing with us at the time, proceed [sic] to prepare the amendment adding the upgrade and had [the Applicant] signed it not withstanding, [sic] [Ms. Dacosta’s] and my protest. [Ms. Dacosta] sent an email to the vendor requesting that the upgrades be cancelled. A new date of May 26th was given by the builder to discuss any changes. […]
I began to become suspicions of [the Applicant’s] intentions and decided that I wanted my name added to the agreement. I stated my wishes and [Ms. Dacosta] sent an email to the vendor asking that my name be added to the agreement. When [the Applicant] was informed of this, she sent an email to the vendor stating that she did not want me to be added at this point. […] There was nothing I could do about it as I was not a party to the Agreement of Purchase and Sale.
[Ms. Dacosta] and I decided that it would be in my best interest to transfer my interest to her, as the arrangement was not going the way it was we agreed. I contacted my Lawyer Elaine Gordon, and requested that she draft an agreement, wherein I would transfer my 1/3 interest to [Ms. Dacosta]. […] I asked my lawyer to email her a copy for her agreement.
The Applicant responded through her lawyer, Romesh Hettiarachi [sic], denying my equitable claim in the property and that she would send a cheque directed to Mr. [Da Costa] constituting all monies Mr. [Da Costa] has landed [sic] to her. […]
[Ms. Dacosta] and I decided that it would be in our best interest to make all future deposits directly to the Vendor and not to pay it through her.
I continued to give my share of the deposits to [Ms. Dacosta], who would then pay it directly to the vendor. In May I made a further contribution of $2,500.00 and in June another $4,000.00.
At the end of June my total contribution was $15,000.00. The deposit scheduled with the vendor, required $35,000.00 to be paid by June 28th. I had deposited more than my one third share of $11,667.00 at the time. […]
[64] During his cross-examination, Mr. Da Costa gave inconsistent evidence with respect to the payment in the amount of $3,500 that he allegedly made to the Applicant in January 2021. At some point, he said that he gave these monies to the Applicant at the end of January when they all attended a meeting with Treetops. Later in his cross-examination, he stated that he gave the $3,500 to Ms. Dacosta who gave it to the Applicant on his behalf. This evidence is contrary to the evidence set out in paragraph 16 of his affidavit (reproduced above).
DISCUSSION
[65] There are two main issues on this Application: (1) whether Mr. Da Costa has an interest in the APS or the Property; and (2) whether the Applicant is entitled to the relief she is seeking as against Ms. Dacosta. I will discuss each issue below. Before I do so, I wish to comment on the evidence adduced by the parties in this case.
[66] In my view, the evidence adduced by the parties was selective and largely unsatisfactory. The evidence of the Respondents was unclear, incomplete, confusing and at times inconsistent. Their evidence on cross-examination was all over the place, especially Mr. Da Costa’s. As for the Applicant, her evidence was also selective and she completely failed to provide satisfactory responses or explanations with respect to serious points or documents raised by the Respondents. Further, I find that the Applicant’s counsel improperly interfered with the conduct of the cross-examination of the Applicant by counsel for the Respondents. I also note that the parties failed to provide answers to undertakings before the hearing of the Application.
A. Interest of Mr. Da Costa in the APS or the Property
[67] Section 4 of the Statute of Frauds, R.S.O. 1990, c. S.19 provides as follows:
No action shall be brought to charge any executor or administrator upon any special promise to answer damages out of the executor’s or administrator’s own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of any other person, or to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which the action is brought, or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some person thereunto lawfully authorized by the party. [Emphasis added.]
[68] This provision is engaged in this case as Mr. Da Costa’s alleged interest in the APS and the Property is the result of an alleged verbal agreement. There is no agreement (or some note or memorandum thereof) in writing and signed by the Applicant and/or FirstView.
[69] Mr. Da Costa relies on the doctrine of past performance in support of his position. This equitable doctrine was created in order to prevent the Statute of Frauds from being used as a variant of the unconscionable dealing which it was designed to remedy. The doctrine exists to prevent a person from relying on the Statute of Frauds to excuse performance of an agreement when that person stood by while the other party to the agreement performed, to his or her detriment. See Erie Sand and Gravel Limited v. Tri-B Acres Inc., 2009 ONCA 709 at paras. 49, 78 (“Erie Sand”).
[70] The doctrine of past performance has two requirements: (1) detrimental reliance; and (2) acts of part performance that sufficiently indicate the existence of the alleged contract such that the party alleging the agreement is permitted to adduce evidence of the oral agreement. See Erie Sand at para. 79 and Mountain v. TD Canada Trust Company, 2012 ONCA 806 at para. 87 (“Mountain”).
[71] With respect to the second requirement, the acts of part performance must be “unequivocally referable in their own nature to some dealing with the land”. The first step is to determine whether the acts of part performance are connected to the land, i.e. the conduct is unequivocally referable to the property in question. The second step is to determine whether the conduct, in and of itself, indicates that there had been “some dealing with the land”. To determine whether or not the acts relied upon in any particular case are within this description, the court must determine the context or the relevant circumstances, and then consider the acts of part performance having regard to the way in which reasonable people carry on their affairs. If the acts relied on are of such a character that, judged by the standards in accordance with which reasonable people commonly act, they would not be done except in part performance of a contract such as is alleged, that is sufficient part performance to avoid the operation of the statute. See Erie Sand at paras. 87-90, 93-94 and Mountain at paras. 82, 86.
[72] The mere payment of money does not qualify as part performance unless it can be said to be unequivocally related to the alleged contract: Starlite Variety Stores Ltd. v. Cloverlawn Investments Ltd., 1979 CanLII 1879 (C.A.); Clark Machine Inc. v. R. Difruscia Holdings Limited, 2010 ONSC 5449 at para. 40; Little Shoe Palace v. Pelmark Developments Ltd., 2017 ONSC 5268 at para. 52; Ontario (Minister of National Revenue) v. Sunset Recreational Vehicles Ltd., 2003 CanLII 30337 at paras. 24, 29.
[73] In my view, the requirements of the doctrine of part performance are not met in this case. First, there is no evidence of detrimental reliance. The Respondents state the following in their Factum:
It is submitted that Mr. Da Costa’s [sic] relied on the verbal agreement with the Applicant to his detriment. When the Applicant approached him to buy a property with her, he was already look [sic] to buy a property. What Mr. Dacosta [sic] would have paid for a properly [sic] in 2021 is much less than what he would pay today. He states that he has been making inquiries into similar properties in the same development and has been informed that they are now selling for $1,200,000.00[.] He believes that it will be much harder if not impossible for him to purchase a property in the Greater Toronto Area at this time because of the increase in prices. He therefore relied on the verbal agreement to his detriment.
[74] This paragraph is improper as it contains information and allegations that are not included in or supported by the evidentiary record on this Application. Among other things, there is no evidence in the record before me about any changes in property prices since January 2021. Further, I note that Mr. Da Costa’s argument about detrimental reliance is seriously undermined by the Draft Agreement which shows that he is prepared to transfer his interest in the Property to Ms. Dacosta for the same amount as he allegedly agreed to contribute in January 2021, i.e. $50,000. While Mr. Da Costa alleges that he made certain payments that were used to make deposit payments, the Applicant has offered to reimburse him and, in any event, there are other recourses available to him to recover these funds. Such payments are insufficient to establish detrimental reliance in relation to the purchase of the Property.
[75] Second, I am not satisfied that Mr. Da Costa has established acts of performance that sufficiently indicate the existence of the alleged contract. On the issue of acts of part performance, Mr. Da Costa relies mainly on the payments that he says he made. However, there is no evidence that Mr. Da Costa has made any payments. The e-transfers to Ms. Dacosta did not come from him – they came from Alecia Reece, and there is no evidence as to where the funds sent by Ms. Reece came from. The e-transfers did not contain any note referring to Mr. Da Costa, the Property or any alleged ownership interest. In addition, there is no documentary evidence of any of the alleged other financial contributions of Mr. Da Costa, including the alleged payment of $3,500 in January 2021.
[76] Further, and in any event, I find that the payments on which Mr. Da Costa rely are not unequivocally related to the alleged contract or “unequivocally referable in their own nature to some dealing with the land”. These payments could be loans, as alleged by the Applicant, or assistance to family members. While the schedule of payments posted in the Alliston group chat on WhatsApp appears to support Mr. Da Costa’s position, this schedule is also not unequivocally related to an alleged contract of co-ownership, for the same reasons as outlined above. In addition, I note that this schedule appears to have been created for the first time more than two months after the alleged verbal agreement was entered into, and no other messages/responses posted in the group chat have been produced.
[77] While Mr. Da Costa was present at some of the meetings between the Applicant and Ms. Dacosta and Treetops/FirstView, there is no documentary evidence showing that he had direct communications with Treetops/FirstView about the Property after the APS was signed. The fact that he was present at some of the meetings is not unequivocal as he could have been present as a supportive family member and/or as someone who was interested in purchasing another property in the same development.
[78] Ultimately, even leaving aside the issue of the Statute of Frauds, I am not satisfied that the Respondents have established the verbal agreement that they allege. I prefer the Applicant’s evidence with respect to how the decision was made to have Ms. Dacosta replace the Applicant’s husband on the APS as it is more consistent with the documentary evidence and the sequence of events. In my view, there are serious issues with the Respondents’ evidence, including the following:
a. Mr. Da Costa’s evidence is that the Applicant wanted to purchase another property because she was having marital problems and she needed his help to do so. However, Mr. Da Costa also states in his affidavit that the Applicant advised him that she would stay in Ajax during the week and only stay at the Property on the weekends. Thus, it does not appear that the Applicant needed another place to live because of marital problems. This allegation is also difficult to reconcile with the fact that the Applicant’s husband agreed to: (i) sign the APS with the Applicant on January 18, 2021, and (ii) sign an amendment on January 31, 2021 stating that the APS was firm and binding.
b. The Respondents’ evidence as to when they allegedly entered into an agreement with the Applicant to each own a 1/3 interest in the Property is inconsistent. Ms. Dacosta states that the agreement was entered into on January 15, 2021. In contrast, Mr. Da Costa states that Ms. Dacosta did not immediately agree to join in the purchase. Further, he states in his affidavit that the Applicant told him that she had signed the APS with her husband because Ms. Dacosta “was not moving fast enough to secure the deal”, which suggests that Ms. Dacosta had not yet agreed to be a purchaser by the time the APS was signed on January 18, 2021, or even by January 28, 2021, i.e. the date on which the Applicant told Mr. Da Costa that she had signed the APS with her husband.
c. The discussions that are alleged to have taken place between the Respondents and the Applicant before January 15, 2021 – the date on which the parties entered into an agreement according to Ms. Dacosta – appear to have been general discussions about purchasing a house. There is no evidence that the parties were discussing a specific lot/house at that time. I also note that the purchase price mentioned in Ms. Dacosta’s affidavit ($767,000) is not the same as the purchase price in the APS ($767,900). Further, Mr. Da Costa does not mention a purchase price in his affidavit, but only individual contributions of $50,000. In the absence of an agreement on a specific lot/house and on all essential elements of the contract, there cannot be a binding agreement.
d. If, as alleged, the parties had reached a firm agreement to purchase a property together from the Vendor in or around mid-January 2021, one would expect the parties to take steps to sign an agreement of purchase and sale with the Vendor prior to the January 28, 2021 deadline. This did not happen and, in fact, it does not appear that the parties had further discussions about purchasing the property between January 18 – the date on which the Applicant and her husband signed the APS – and January 28, 2021 – the date on which the Applicant advised Mr. Da Costa that she had signed the APS with her husband.
e. There is no explanation as to why Mr. Da Costa allegedly chose to have his interest in the Property held in trust by the Applicant and Ms. Dacosta instead of having his name on the APS as a 1/3 owner.
f. Mr. Da Costa states in his affidavit that he spoke to Treetops after the APS was signed and inquired as to whether the APS could be amended to remove the Applicant’s husband as a purchaser and add Ms. Dacosta, and he was told that it could be done after the initial deposit of $10,000 was paid. He then states that on January 30, 2021, he attended at the Vendor’s sales office with Ms. Dacosta and the Applicant and a Treetops sales representative prepared the amendment. This is inconsistent with the documentary evidence. The first amendment to the APS that was signed after January 30, 2021 is the amendment signed by the Applicant and her husband on January 31, 2021 stating that the APS was firm and binding. The amendment to the APS substituting Ms. Dacosta for the Applicant’s husband was only prepared on February 9, 2021 and signed on February 16, 2021.
g. There is no supporting evidence that Mr. Da Costa gave $3,500 to the Applicant in January 2021 (either directly or through Ms. Dacosta), and both Ms. Dacosta and Mr. Da Costa have given inconsistent and contradictory evidence on this point. Further, their evidence is unclear as to when and how that payment allegedly happened.
h. The Respondents’ evidence includes gratuitous and unsubstantiated allegations against the Applicant, including about her alleged involvement in a pyramid scheme.
[79] As stated above, there appears to have been discussions between the parties about contributions and payments. However, most of the documentary evidence related to such discussions appears to have been created in March 2021, approximately two months after the APS was signed. Further, the context of these discussions and documents has not been provided as the parties have adopted a selective approach to the evidence. Because of the lack of context and evidence and the fact that the communications that are relied upon are not unequivocal, I am not satisfied on a balance of probabilities that the Applicant, Ms. Dacosta and Mr. Da Costa reached a binding verbal agreement that they would each own a 1/3 interest in the Property.
[80] Thus, I conclude that Mr. Da Costa has not established that he has an interest in the APS and/or the Property.
B. Relief sought by the Applicant against Ms. Dacosta
[81] The Applicant relies on section 3(1) of the Vendors and Purchasers Act, R.S.O. 1990, c. V.2 (“VPA”) as the legal basis to obtain the relief that she is seeking as against Ms. Dacosta. I note that the relief sought is broad-ranging and would have the effect of depriving Ms. Dacosta of many recognized attributes of ownership.
[82] Section 3(1) of the VPA states as follows:
A vendor or purchaser of real or leasehold estate or the vendor’s or purchaser’s representative may at any time and from time to time apply to the Superior Court of Justice in respect of any requisition or objection or any claim for compensation or any other question arising out of or connected with the contract, except a question affecting the existence or validity of the contract, and the court may make such order upon the application as may be considered just.
[83] While the language of this provision appears to be broad, it has been given a restricted interpretation. Courts have consistently held that the jurisdiction under section 3(1) of the VPA is only with respect to requisitions or objections to title: see Re Dai and Kaness Investment Ltd. (1979), 24 O.R. (2d) 51, 1979 CanLII 1709 (H.C.J.).
[84] In Re Mullin and Knowles (1965), [1966] 1 O.R. 324 (C.A.), 1965 CanLII 209, the Court of Appeal stated the following with respect to section 3 of the VPA:
It will be noted that in all these cases the emphasis has been laid upon an adjudication by the Court of a question of title, viz., whether a requisition (on title) has been sufficiently answered (according to the practice of conveyancers), or whether a requisition (on title) is precluded by the conditions, and related questions. It was never designed or intended to enable the Court in summary proceedings as authorized by s. 3 to try disputed questions of fact. The words “any requisition or objection or any claim for compensation” are taken from the language of conveyancers and unquestionably refer to requisitions on title or objections to title. The “claim for compensation” referred to touches and concerns the right of a purchaser to take with an abatement of the purchase price by reason, e.g., of want of title as to part of the area of land intended to be conveyed under the terms of the contract for sale. Every section of the Vendors and Purchasers Act substantially bears upon the proof or establishment of title to land, and the contextual influence of the Act read in its entirety leads irresistibly to the conclusion that the words of s. 3(1), just discussed, should be construed as relating to matters of title to land and to nothing beyond that. It is too plain for discussion that the general words “or any other question arising out of or connected with the contract” are to be likewise restricted through the operation of the ejusdem generis rule which is clearly applicable here.
It is sufficient to say that the subject-matter of the requisition upon which the Court was asked to rule, not being a matter of title, does not come within the purview of s. 3 of the Vendors and Purchasers Act, hence the judgment in appeal was pronounced without jurisdiction and is without effect.
[85] Thus, while section 3(1) provides an efficient means of resolving title disputes that arise between parties to an agreement for purchase and sale of land, it does not apply to matters that do not relate to title or the ability of the vendor to convey good title: 2296608 Ontario Inc. v. DHMK Properties Inc., 2014 ONSC 2875 at paras. 31-32.
[86] In light of the foregoing, I conclude that the relief sought in this Application – which is relief sought many months before the closing of the transaction by a co-purchaser against another co-purchaser without any involvement by the vendor – does not fall within the narrow scope of section 3(1) of the VPA.
[87] In my view, there is no legal basis to grant the relief sought. The extent of the evidence before me as to the agreement between the Applicant and Ms. Dacosta, which is set out in the Applicant’s affidavit, is that they agreed to purchase the Property together and to contribute their respective shares of finances towards the mortgage, maintenance and upkeep of the Property. There is no evidence of any additional obligation on the part of Ms. Dacosta, including an obligation to prove before the closing date that she will be able to have the necessary financing to close the transaction.
[88] The Applicant knew about Ms. Dacosta’s unemployment at the time they agreed to purchase the Property together and, despite that, there is no evidence before me that additional terms were discussed with respect to their co-ownership. The Court cannot make an agreement for the parties.
[89] Further, there has been no repudiation or anticipatory breach on the part of Ms. Dacosta. She has not shown an intention to breach the APS or her agreement with the Applicant. She has not stated that she will not have the necessary funds for the closing. On the contrary, she has stated the opposite. I note that under the Draft Agreement sent to the Applicant by counsel for the Respondents, Ms. Dacosta would be responsible for two-thirds of the balance of the downpayment and purchase price on closing.
[90] While the Applicant has alleged that Ms. Dacosta has refused to sign legal documents required to purchase the Property, there is no evidence supporting this statement and I conclude that it is unfounded.
[91] I also find that there is no basis to order a constructive trust. As stated by the Supreme Court of Canada in Moore v. Sweet, 2018 SCC 52 at paras. 32-33, a constructive trust is understood primarily as a remedy in Canada, and a proper equitable basis must exist before a court will impress certain property with a remedial constructive trust. No such equitable basis – like a breach of fiduciary duty – has been established in this case. Further, and in any event, ordering a constructive trust at this stage would be premature. The parties do not own the Property yet and it is not possible to determine before closing whether there will be any unjust enrichment. The Applicant cannot unilaterally create an “unjust enrichment” by making extra deposits ahead of the deposit schedule. The Applicant must abide by the agreement she has with Ms. Dacosta, which is that they would contribute their respective shares of finances towards the mortgage, maintenance and upkeep of the Property.
[92] As a result, I find that there is no legal basis to order the relief sought by the Applicant as against Ms. Dacosta.
CONCLUSION
[93] Accordingly, and as set out in my endorsement dated May 13, 2021, I grant the order requested by the Applicant that Mr. Da Costa has no interest in the APS or the Property, but I dismiss the Application as against Ms. Dacosta and decline to grant the relief sought as against her.
[94] With respect to costs, my initial view is not to order costs given the fact that success was divided and in light of my comments above with respect to the evidence, the approach adopted by the parties and the failure to answer undertakings. If, despite the foregoing, the parties wish to seek costs, they shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, within 14 days of the date of this endorsement. The submissions should be sent to my assistant by e-mail and uploaded onto CaseLines.
Vermette J.
Released: May 24, 2022
COURT FILE NO.: CV-21-00668635-0000
DATE: 20220524
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FALLON MARGARET BATCHELOR
Applicant
– and –
ROSE MARGARET DACOSTA and LASCELLE DA COSTA
Respondents
REASONS FOR JUDGMENT
VERMETTE J.
Released: May 24, 2022
[^1]: It appears from the APS that the Applicant and her husband signed the APS on January 18, 2021 and that FirstView signed it on January 19, 2021.