Edna Kostiuk v. Jay Porchuk
COURT FILE NO.: CV-21-672465
DATE: 20221031
ONTARIO SUPERIOR COURT OF JUSTICE
RE: EDNA KOSTIUK by her litigation guardian CAROLYN PLUMMER, Applicant
-and-
JAY PORCHUK, Respondent
BEFORE: FL Myers J
COUNSEL: Alan Honner, for the applicant
Allen Gerstl, for the respondents
HEARD: October 26, 2022
ENDORSEMENT
Background and Outcome
[1] Edna Kostiuk is ninety-three-years old and lives in a long-term care facility in Haliburton. She lacks capacity to care for herself or to manage her property. She is represented by her niece Carolyn Plummer under powers of attorney.
[2] Ms. Kostiuk owns a house in Toronto. Before suffering a stroke a few years ago, she had lived in her house for almost 60 years.
[3] The cost of Ms. Kostiuk’s long term care exceeds her monthly income by almost $1,000 each month. Ms. Kostiuk also has to pay for utilities and taxes on her house.
[4] Ms. Kostiuk has savings and investments of around $75,000. She could fund her monthly deficit and house expenses for a few years provided she has no expensive medical needs and no significant additional expenses or need for capital expenditures on her house.
[5] Ms. Kostiuk’s niece, as her attorney, has decided that is prudent to sell the house to which Ms. Kostiuk will never return.
[6] The respondent Jay Porchuk is Ms. Kostiuk’s nephew and Ms. Plummer’s cousin. He is 68 years old. He has lived in Ms. Kostiuk’s house with her for the past six years. He asserts that he has a right to remain in the house for the rest of his life.
[7] The applicant seeks a writ of possession to require Mr. Porchuk to leave the house so that it can be sold.
[8] For the reasons that follow, I find that Mr. Porchuk has not established a right to remain in the house to prevent its sale by or on behalf of Ms. Kostiuk. I grant leave for Ms. Kostiuk to issue a writ of possession to evict Mr. Porchuk. But I stay this order until February 1, 2023.
Facts
[9] Mr. Porchuk worked as a machinist until he was 47 years old. He took retraining courses to study numerical computer operations for a year. When he was 48, someone told him that he was too old to work. So, he retired.
[10] In his affidavit, Mr. Porchuk swears that he retired “at about 60 years of age”. He corrected this evidence on cross-examination.
[11] Until his retirement, Mr. Porchuk had always lived with his mother and he continued to do so in his retirement.
[12] Mr. Porchuk’s mother passed away in 2005. He inherited her house.
[13] By 2015, Mr. Porchuk had amassed mortgage debt against the house of about $600,000 which was then nearly 90% of its fair market value. At that time, Mr. Porchuk had also borrowed $50,000 from Ms. Kostiuk. He also had incurred debt through a line of credit with his bank plus credit card debt totalling another $80,000.
[14] Mr. Porchuk’s sole source of income was an early CPP pension that commenced when he turned 60 in 2014. He started to receive Old Age Security later when he turned 65 in 2019.
[15] In 2015, Mr. Porchuk ran out of money to carry his debts and he had insufficient equity left in his house to support further borrowing.
[16] Ms. Kostiuk offered to let Mr. Porchuk live with her. He agreed in cross-examination that the offer was “a financial life saver” for him.
[17] After moving in with Ms. Kostiuk, Mr. Porchuk sold his house for $680,000. He then went through a consumer proposal under the Bankruptcy and Insolvency Act to resolve the indebtedness that remained.
[18] In his affidavit, Mr. Porchuk testifies:
In 2015, after the death of both of my parents, I was all alone and my aunt Edna Kostiuk, the sister of my late mother was also alone. She was then about age 85 and she asked me to come and live with her and help take care of her including also to be a handyman for house repairs at her home. She told me that if I thus came to live with her that I would have life-interest in her house at 38 Van Stassen Boulevard, Toronto and could [sic] thus I could feel secure when I sold my parents house. As indicated, she is like a second mother to me and I was happy to move in with her and accepted her offer to me.
On the basis of my Aunt Edna's aforesaid agreement with me, I therefore sold my late parents' house that was located at 26 Magwood Court, Toronto.
My Aunt-Edna had previously assisted me financially and, while I do not now know the extent of her assistance to me previously, it was substantially less that $50,000.00. From the approximately $83,000.00 remaining after the sale of the home of my late parents, in 2015 I thereupon provided my Aunt-Edna with a cheque for $50,000.00 which was provided not only to repay her for her financial assistance to me, that I considered a loan and so indicated, but also as further consideration for her aforesaid offer to me. Now shown and produced before me and marked as exhibit "A" hereto is a true copy of a 2015 bank statement for my chequing account in 2015 and a cancelled cheque that had been deposited by my aunt to her bank account for the sum of $ 50,000.00 from funds received by me after I sold my late parents' house in 2015.
[19] Mr. Porchuk’s testimony then is that he purchased a “life interest” in his aunt’s home partly for money and partly with a promise to help care for her and work as a handman at the house.
[20] In cross-examination, Mr. Porchuk was clear that he and his aunt entered into an oral agreement for consideration. (“You can live here if you do…X, Y, and Z for me.) This is not a case dealing with a gift therefore.
[21] Mr. Porchuk also conceded under cross-examination that Ms. Kostiuk never used the words “life interest”. He first heard that term in discussing the matter with his lawyer. What he understood from his agreement with Ms. Kostiuk is that he would have a “permanent home” with her.
[22] Mr. Porchuk also conceded in cross-examination that despite swearing that he owed his aunt less than $50,000, so that his payment to her of $50,000 included a payment for his “life interest”, that evidence too was incorrect. In fact, he had borrowed at least $49,000 from his aunt. With even a modicum of interest, he agreed there was no portion of the $50,000 debt repayment available to pay for a transfer of a property interest. The $50,000 payment was entirely repayment of debt.
[23] Mr. Porchuk agrees that he took no steps to record his purchase of a “life interest” from his aunt although it was a big part of his financial security.
[24] Unfortunately, Ms. Kostiuk is not capable of giving evidence in this proceeding. But it is known and conceded that she never made a change to her signed powers of attorney to reflect any limitation on her rights with respect to her home. In addition, she did not amend her will to reflect Mr. Porchuk’s alleged “life interest”.
[25] Mr. Porchuk concedes that there is no written record evidencing his alleged agreement with his aunt.
[26] Mr. Porchuk provided the following evidence of his side of the bargain under cross-examination:
A. I was to take care of her, drive her around to her appointments, take her shopping, pick her up again, do handy work around the house, fix -- fix the broken utility -- what do you call it. Like fixing, like, um, toasters, a toaster, doing electrical work, doing plumbing and help where I can around the house. If I can cut some of the lawns or shovel some snow.
109 Q. What about personal care?
A. I had no -- well, personal care would be taking her to her doctors appointments.
Q. Okay. Other than that, was there any other personal care that you would be doing for her?
A. No .
[27] He also testified that he would buy some small items of groceries when asked by aunt. He agreed that he consumed them as well.
The Evolution of Mr. Porchuk’s Position
[28] There are several months of email exchanges between Mr. Porchuk and Ms. Plummer around the time that Ms. Kostiuk moved into her long-term care facility.
[29] In December 2020, Mr. Porchuk expressed his happiness that Ms. Kostiuk would be living in the long-term care facility run by Ms. Plummer in Haliburton. He asked:
Now that Auntie is moving out of the hospital setting what do you plan to do with the house.
I suppose that it will cost to have her stay there.
What options will you be considering if any.
[30] On December 29, 2020, Mr. Porchuk wrote to Ms. Plummer to ask if she couuld find out how he can apply for subsidized housing near to her and Ms. Kostiuk (in Minden, Ontario). Ms. Plummer responded with general ideas and also suggested that Mr. Porchuk might want to consider moving to Alliston, Ontario to be near other family members.
[31] Mr. Porchuk responded that he wanted to move up to Minden because he likes the area and the housing is newer. He wrote:
That means no bed bugs no cockroaches no rotting walls and floors and no stench of abused apartments which is what all that's available in this area.
[32] On January 5, 2021, Mr. Porchuk told Ms. Plummer that he had learned that there was a five to seven year waiting list for subsidized housing near her and he could not find any mention of subsidized housing in Alliston.
[33] Mr. Porchuk’s mood changed as his housing situation became more unsettled. On March 11, 2021, he wrote to Ms. Plummer to accuse her of “selling Aunt Edna’s home out from under her”.
[34] Ms. Plummer responded:
To clarify - she is not in a hospital, she is in a long-term care home. As I have shared previously, based on her care needs she is no longer able to live in her house, even with homecare; it is not an option. Her need to move into a long-term care setting was confirmed by Home and Community Care (i.e., homecare) coordinators.
In my last email to you, I had asked you a question about your progress on your hunt for housing options for yourself; I do not see a response to that question. Please let me know, as I do need to proceed with the sale of the house.
[35] The first time that Mr. Porchuk ever suggested that he had a right to remain in Ms. Kostiuk’s house was in his next email dated March 16, 2021:
The answer to your question is no I haven't found a place.
I ran into a road block a little while back with regards to me not having a credit card or credit or credit rating.
The few people I spoke to wanted to do a credit check on me and when I couldn't produce a credit card the answer was sorry I can't help you.
Now this month is the last month I have to pay A Farber for the proposal they did for me 5 years ago.
As of yet I have not been notified by them as to the state of my credit after the last payment and when I will be allowed to have a credit card again.
I know that after a bankruptcy they don't allow a credit card for 3 years after.
This situation has destroyed what little life I had when I moved into this home 6 years ago.
It seems that you have no interest in exploring any other options other than selling the property.
I thought that becoming a senior would come with some consideration but I now find that is not the case.
Auntie Edna talked me into moving here because she knew the extent of my problems I had on 26 Magwood Court.
She told me that I now had a home here on Van Stassen a place that I have spent 2/3rds of my childhood where I could recover and not have to worry any more but she didn't mention that I would have to worry about family.
She promised me that I would not have to leave here at any time.
Her word doesn't seem to have any value now like myself.
I feel that I have been reduced to garbage and am going to be discarded like garbage.
I have nowhere to go and there is no one in this so called family that has any interest in helping me.
[36] By letter dated May 18, 2021, counsel for the applicant Mr. Honner demanded that Mr. Porchuk vacate the home by the end of that week. Mr. Porchuk then consulted with Mr. Gerstl. By letter dated May 31, 2021, Mr. Honner sent a trespass notice to Mr. Gerstl for Mr. Porchuk.
[37] Mr. Gerstl responded that day. He set out Mr. Porchuk’s position that he is a tenant of Ms. Kostiuk and therefore he cannot be evicted except by an order of the Landlord Tenant and Board. Mr. Gerstl wrote:
Mr. Porchuk indicates that he was asked by his aunt, Ms. Edna Kostiuk to reside at her home as a roomer and has been living legally at the house in that capacity and also had been assisting her.
Roomers are protected by the provisions of the Residential Tenancies Act.. Your notice under the Trespass to Property Act, is, therefore, a nullity.
I also note, parenthetically, that all orders for evictions under the Residential Tenancies Act remain suspended except in cases of special urgency such as in those of willful damage of property.
[38] In June, 2021, the police attended at the house at the request of the applicant. They refused to intervene because Mr. Porchuk told them that he was a tenant.
[39] In January, 2022, Mr. Gerstl conceded in a Motion Request Form that Mr. Porchuk had never paid rent and could not claim status under the Residential Tenancies Act. He then set out Mr. Porchuk’s evidence as stated to him that has become the genesis of the current position:
The respondent states that he sold his own house on his aunt agreeing that he could live with her throughout her lifetime and that he provided her with funds from that sale. In effect that his aunt had granted him a life interest in the property.
[40] However, the facts now are clear that Mr. Porchuk sold his house because he was in debt. He did not pay to buy an interest from Ms. Kostiuk in her house. Rather, she threw him a financial life saver. Of greatest significance, however, is that the agreement as stated by Mr. Porchuk to his counsel last January was that he could live in Ms. Kostiuk’s house for her lifetime.
[41] It is apparent that Mr. Porchuk’s position has evolved from his initial realization that he had to leave the house, to upset at being forced out with nowhere to go, to being a roomer or tenant, to having bought an interest to live in the house for the duration of Ms. Kostiuk’s life, to the current position, that he has a right to stay in the house for the rest of his life.
Analysis
[42] Mr. Porchuk submits that he has a right to remain in possession of Ms. Kostiuk’s house for the rest of his life. That right, he says, supersedes her right to sell the property or at least binds her successors including a bona fide purchaser for value.
An Agreement to Convey an Interest in Land must be Evidenced in Writing or by Part Performance
[43] Mr. Porchuk’s principal position is that he acquired his right to remain in the house by agreement with his aunt. Alternatively, he advances an estoppel – either proprietary or promissory – that prevents Ms. Kostiuk’s attorney from evicting him to sell the house.
[44] It is common ground that under the Statute of Frauds, RSO 1990, c S.19, any agreement between Ms. Kostiuk and Mr. Porchuk under which she agreed to sell to him a life interest in the house is unenforceable unless it is evidenced in writing. The rule is principally one of evidence. The law requires written evidence of an agreement affecting land to protect against fraudulent oral claims.
[45] Mr. Gerstl correctly submits that despite the Statute of Frauds, an agreement concerning land can be proved by oral evidence where the buyer has partly performed the agreement. There is little likelihood for fraud where a party can prove that he or she has acted on an oral agreement that can be discerned from the actions themselves. See: Ireland v. Cutten, 1993 CanLII 68 (ON SC).
[46] However, it is not quite so simple. As Kelly J. discussed in the Ireland case, to ensure that the acts of part performance actually support the existence of an agreement, the acts must be “unequivocally referable” to the alleged oral agreement. That is, one needs to be able to see that the acts that are said to amount to part performance of an oral agreement concerning an interest in land are only consistent with the existence of the agreement alleged. It is only where the acts of part performance have no other purpose or reason that they effectively can prove the existence of the oral contract.
[47] Consider, for example, two people who make claims to have an oral agreement to buy vendors’ lands. In one case, the buyer proves that he or she spent months and tens of thousands of dollars to obtain rezoning of the property and to create future development plans. In the other case, the alleged buyer proves that he or she had coffee with the vendor once a week after making the alleged oral agreement.
[48] A person can have coffee with another person for any number of reasons. The act of having coffee with another does not relate to or help establish the likelihood that they are parties to an oral agreement of purchase and sale of the other’s land. By contrast, absent additional facts that are not present in this example, there is no reason for one person to spend tens of thousands of dollars and months of effort on rezoning and redeveloping another person’s property. The steps taken to perform under the alleged agreement can only be explained by there being an oral agreement for the purchase of the land. The steps are “unequivocally referable” to the existence of an agreement to buy the land. There is no other purpose for the developer/buyer to have taken those steps.
[49] It is only the latter case that the law recognizes as sufficient to displace the writing requirement under the Statute of Frauds. Where acts of alleged performance are equivocal, or do not point only to an agreement to transfer an interest in the land, then they provide too little assurance against fraud to displace the writing requirement in the statute.
[50] In Ireland, Kelly J. explained it this way:
The doctrine is also discussed in Volume 31 of Halsbury's Laws of England, 2nd edition, commencing at page 359. The following passage appears at page 360:
"If, however, the acts of part performance are referable to some contract, and are consistent with the contract alleged, evidence is admissible as to the precise terms of the particular contract which is alleged. In effect, the necessity of writing is dispensed with, and the Court is entitled to find what the parties have actually agreed, although the terms of the agreement g[o] beyond those to which the acts of part performance in themselves point."
There is no doubt that equivocal acts will not constitute part performance so as to dispense with the necessity of writing. Thus, the rebuilding b[y] a tenant of a party wall was not part performance of an alleged contract with the landlord for a further lease for ten years in return for such rebuilding: Frame v. Dawson (1807), 14 Ves. Jun. 386. Mere continuance by a tenant in possession was not part performance of an oral agreement to grant a further lease: Brennan v. Bolton (1842), 2 Dr. & War. 349. Continued service as housekeeper was not part performance of an oral contract with the master to devise a life estate in land in return for such service: Maddison v. Alderson (1883), 8 App. Cas. 467. In Noecker v. Noecker (1917), 41 0.L.R. 296, it was held that a son's taking his mother to live with him might be referable to the relationship existing between them and was therefore not an unequivocal act of part performance of an alleged oral contract to leave her estate to him in return for such maintenance. Coulter v. Elvin (1911), 2 O.W.N. 678, and Menzies v. Bartlet (1918), 15 O.W.N. 8, also cited by Mr. Hughes, are cases of plainly equivocal or quite unconnected acts held to be insufficient, as part performance of the oral contracts alleged, to dispense with the written memorandum required by statute. But these cases differ widely from the case at bar, which, indeed, appears to me to be the model or type case of part performance sufficient to cure the absence of any written memorandum...
[51] Before getting to acts of part performance, first the oral agreement alleged must be specific and clear. The evolution of Mr. Porchuk’s position and, especially, the change from an interest for the remainder of Ms. Kostiuk’s
life to claim a right to stay for the duration of his own life, puts the certainty requirement very much in issue. This also raises a question of the credibility of Mr. Porchuk’s evidence and his claim.
[52] For current purposes, Mr. Honner submits that I should accept Mr. Porchuk’s current evidence as true. I return briefly to the question of credibility at the end of this endorsement below. For this analysis, I accept Mr. Porchuk’s evidence in this proceeding and I ignore the attribution of statements to Mr. Porchuk in Mr. Gerstl’s May 31, 2021 letter and his Motion Request Form from earlier this year.
[53] In cross-examination, Mr. Porchuk agreed, as one would expect, that his aunt did not use the words “life interest” at all. What Mr. Porchuk said in cross-examination was that his aunt told him that he would have a “permanent home” and be a “permanent member of [the] household”.
[54] The agreement that Mr. Porchuk asserts grants him permission to stay in the house. It is not a conveyance of any type of interest. Rather than the evolving theories from roomer/tenant, to an interest for Ms. Kostiuk’s life, to a “life interest” himself, Mr. Porchuk’s evidence is that he was actually just told that he could come and live with Ms. Kostiuk permanently and he would not have to leave. This implies no limits on Ms. Kostiuk’s entitlement to sell her house when she wishes or to devise it in her will as she pleases or to change her mind.
[55] In other words, on the actual evidence of Mr. Porchuk, there is no oral agreement to transfer an interest in the house property to him.
[56] Moreover, without considering the credibility of Mr. Porchuk’s evidence, even if it is all true, none of the acts on which he relies to try to prove an agreement is unequivocally referable to an oral agreement under which he bought a “life interest” or obtained some other enforceable right to live in Ms. Kostiuk’s house permanently.
[57] That is, all his efforts to help around the house and to drive his aunt to appointments are equally consistent with a nephew who is grateful to his aunt for allowing him to stay in her house rent-free. Nothing about any of the acts relate to either his purchase of an interest in the property or even some form of lesser licence or right to remain in the house permanently. Like the cases referred to by Kelly J. in Ireland above, all the facts of alleged part performance are explicable other than by an oral agreement giving Ms. Kostiuk rights in the house.
[58] I accept Mr. Gerstl’s submission that one can create a “life interest” without using those specific words. But Mr. Gerstl was not able to define an interest that allows someone to possess property for his or her life that is not the property right of a life interest. He suggested that there may be a licence to stay. But a licence is an in personam right. It could not prevent the owner from transmitting title to the house free and clear in her will or otherwise. He suggested that there may be such a thing as an “equitable permission” as was mentioned in Hill v The Attorney General of Nova Scotia, 1997 CanLII 401 (SCC), [1997] 1 SCR 69. But that case involved clear acts of part performance and very specific oral terms. Nothing about this case is similar.
[59] The one significant finding of fact that I make on all of this is that nothing done by Mr. Porchuk as alleged part performance is consistent only with him buying a life interest in the property. Nothing in any of the acts that he performed has any reference to an agreement to purchase an interest in the land.
[60] There was no argument before me about whether a licence to remain in the property is the type of agreement that would trigger the writing requirement of the Statue of Frauds. Even if it does not, I find nothing in the oral agreement alleged that would allow Mr. Porchuk to stay after a sale of the property or that imposes any limitation on Ms. Kostiuk’s right to withdraw her permission when she pleased.
[61] Accordingly, on the evidence adduced by Mr. Porchuk, I find he has not proven that he and Ms. Kostiuk entered into an enforceable agreement to transfer a life interest in the property to him or any other binding right to stay in the house beyond a sale or other transmission of title by Ms. Kostiuk.
Estoppel Prevents People from Enforcing their Rights
[62] Even if Ms. Kostiuk has the right to withdraw her permission or licence allowing Mr. Porchuk to stay in the house rent-free, Mr. Porchuk submits that she should be estopped from doing so. He submits that he has acquired a right to stay by proprietary estoppel or that, under the doctrine of promissory estoppel, a Court of Equity will prevent Ms. Kostiuk from enforcing her legal right to evict him.
[63] Taking Mr. Porchuk’s evidence as being true, would lead to a finding that Ms. Kostiuk told him that if he takes care of her and the house, he can stay permanently and rent-free.
[64] There is no evidence however that he altered his position or relied on the aunt’s statement to his detriment.
[65] Selling his house to pay the debts he could no longer carry (and still needed bankruptcy to resolve) does not reflect any detriment to Mr. Porchuk based on his aunt’s statement.
[66] Ms. Kostiuk allowed Mr. Porchuk to come and live with her. She saved him from the impending consequences of his indebtedness. He did not suffer any reliance to his determent. He paid no rent, but he helped out. I accept that giving labour can be a form of detrimental reliance. Not in this case, however. He could not get room and board anywhere else for less. Ms. Kostiuk’s generosity was all gratuitous upside for Mr. Porchuk.
[67] Even if Ms. Kostiuk said that he could live at the home permanently, and even if a promise of future conduct amounts to a representation of fact that can be relied upon to create an estoppel, and even if he can be said to have relied on the representation to his detriment, it cannot be reasonable to presume or find that Ms. Kostiuk meant to bind herself in a situation in which she no longer lived in the house. Without her presence, there is no household. It is one thing to allow a relative to live with you while he helps you out. It is another thing to bind oneself to support the relative living for free in one’s own house to the point of impoverishment. If she or her estate runs out of cash, is it reasonable to conclude that Mr. Porchuk has a right to sue Ms. Kostiuk (or her estate) to continue to pay for upkeep and capital repairs and improvements to the house and to provide for him as long as he lives? To ask the question is to answer it.
[68] Absent a binding agreement to convey a life interest to Mr. Porchuk or an indication in her powers of attorney and will that she had intended to do so, even accepting Mr. Porchuk’s evidence to be true, I do not find this a case where it can be reasonable for Mr. Porchuk to have relied on his aunt’s offer of a ”permanent home” to give him rights to stop her from selling the house or withdrawing her permission for him to live there on notice. Estoppel can be withdrawn on notice in any event.
[69] I do not give effect to Mr. Porchuk’s claim that Ms. Kostiuk should be estopped from withdrawing her permission for him to live at her house. He has had the best part of two years to organize his affairs. Even if an estoppel could have arisen, Ms. Plummer has given more than ample notice to preclude Equity from intervening to prevent Ms. Kostiuk from enforcing her rights.
Process
[70] Mr. Gerstl submitted that this was not a proper matter for a summary application. He relied on pre-Hryniak caselaw and the Rules of Civil Procedure before the amendment to Rule 14.05 (3)(h). He says that Mr. Porchuk has a right to appear in person if his credibility is to be questioned.
[71] There are three answers to that concern. First, Mr. Honner is content not to cross-examine Mr. Porchuk further. There are no other witnesses. Accordingly, apart from Mr. Porchuk reading his affidavit aloud to me, there is no evidence to hear.
[72] Second, all my findings above turn on the evidence of Mr. Porchuk being accepted except to the extent that he himself accepted deviations from his affidavit evidence in cross-examination. I find an absence of an oral agreement to convey an interest in the land, a lack of part performance, an absence of a licence that precludes a sale or devolution of the house, and an absence of an enforceable estoppel, all on Mr. Porchuk’s evidence as it stands post-cross-examination. It is not necessary to make any credibility findings.
[73] Finally, if necessary, I would find that this is a case in which the enhanced powers to make findings of fact, draw inferences, and make credibility findings on a motion for summary judgment under Rule 20.04 (2.1) are also available to a judge hearing an application.
[74] There is no point ordering a trial of an issue if the plaintiff could then move successfully for summary judgment. A motion would be identical to the application that I have already heard. That is why Rule 14.05 (3)(h) incorporates the summary judgment language into the application procedure. See: BlackBerry Ltd. v. Marineau-Mes, 2014 ONSC 1790, at para. 2.
[75] This is a case where there is no genuine issue of material fact that requires a trial. All the evidence is out of Mr. Porchuk’s mouth or Mr. Gerstl’s pen. There is no more evidence to be given at a mini-trial. The contemporaneous documents demonstrate the evolution of Mr. Porchuk’s position and evidence perfectly well. There is nothing missing that can be supplied by available evidence of others. Concerns about the litigation as a whole militate in favour of the earliest and most affordable resolution. Neither party can afford a sustained legal dispute. In my judgment, this is a case in which the use of the enhanced powers will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. Hryniak v Mauldin, 2014 SCC 7, at para 66,
[76] I give little credence to the glosses developed by Mr. Porchuk after he learned of the existence of a “life interest” from Mr. Gerstl. Similarly, he is not a tenant despite what he told the police after an earlier consultation with counsel.
[77] I have no doubt that the evidence in para. 10 of Mr. Porchuk’s affidavit that Ms. Kostiuk agreed that “if I thus came to live with her that I would have [a] life-interest in her house” is not true and reflects words put into his mouth. He admitted as much on cross-examination. Similarly, there is no credibility in the evidence of the terms now asserted by Mr. Porchuk. There was only one conversation or at least conversations all in one brief period prior to Mr. Porchuk moving in with Ms. Kostiuk. The agreement made at that time never changed. The evolution of the agreement terms attested to by Mr. Porchuk from first being offered to become a “permanent member of the household” to being offered permanence “for Ms. Kostiuk’s life”, to his current claim of permanence “for his own life”, lacks credibility. Truthful evidence does not change as one’s counsel tests different theories of the case.
[78] The main reason I can reject this evidence with confidence is that I accept Mr. Porchuk’s evidence that Ms. Kostiuk said that he could come and live with her permanently as a permanent member of the household. I reject only the spin drafted for Mr. Porchuk. His own voice emerges in cross-examination. I accept his evidence in cross-examination that Ms. Kostiuk did not use the words “life interest” but said “permanent”.
[79] As I found above already, permanence does not reflect the sale of an interest or permission exceeding Ms. Kostiuk’s ownership of the property or life. Once Ms. Kostiuk went into long-term care, Mr. Porchuk had no complaint when he realized that he would have to move. In fact, he raised the question of what Ms. Plummer intended to do with the house. He looked around for subsidized housing. It was only on realizing how difficult it would be to replicate the benefits bestowed on him by Ms. Kostiuk, that his tone changed.
[80] Moreover, Mr. Porchuk is already pinned to the key admissions in the transcript of his out-of-court cross-examination. Nothing can change in court. If he develops a renewed recollection of his aunt using the words “life interest” or discussing an actual transaction to give him rights to preclude a sale or that endure beyond Ms. Kostiuk’s death, the evidence will have no credibility at all in light of the contemporaneous email correspondence and the existing transcript in which he did not attest to any such recollection.
[81] In all, nothing turns on this because (a) I do not need to make credibility findings to reach a result; and (b) the credibility finding that I would make could not change with a trial process.
[82] It follows that Mr. Porchuk has no legal right to remain in the premises if they are to be sold. I grant leave to the applicant to issue a writ of possession, but, under s. 106 of the Court of Justice Act, RSO 1990, c C.43, I stay that order until February 1, 2023. The stay reflects that it will take some time for Ms. Plummer to sell the house. It also allows Mr. Porchuk time to arrange his affairs.
Costs
[83] I do not agree with Mr. Gerstl’s submission that as a general rule costs should not be ordered against people of modest means who cannot afford to pay. A person’s circumstances can certainly be a factor to consider. But the normative approach in Ontario is that people bear some responsibility for the legal expenses they inflict on others by advancing unsuccessful positions in litigation. This provides settlement impetus for all. It requires people to think carefully about advancing positions with little merit. It prevents people who cannot afford to pay from inflicting costs with impunity on others who have to pay their lawyers.
[84] Whether Mr. Porchuk’s financial circumstances are a significant factor in this case remains to be seen therefore.
[85] The applicant may submit no more than three pages of costs submissions by November 7, 2022. The respondent may submit no more than three pages of costs submissions by November 14, 2022. Both sides shall submit Costs Outlines. All materials are to be uploaded to Caselines.
FL Myers J
Date: October 31, 2022