SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Vinh Quang Do and Nguyet Thi Tran, Applicants
AND:
Lan Thi Phuong Do, Respondent
BEFORE: Doi J.
COUNSEL: Manny Rai and Amandip Sahi, for Applicants
Mayssia Elajami and Dennis Loveridge, for Respondent
HEARD: April 19, 20, 21, 22 and May 24, 25 and 26, 2022
REASONS FOR JUDGMENT
Overview
[1]
Overview
The Applicants, Vinh Quang Do (“Vinh”) and Nguyet Thi Tran (“Nguyet”), seek an order vesting title to a residential property on Kinglet Avenue in Mississauga (“Kinglet”) in their names.1 Although their daughter, the Respondent Lan Thi Phuong Do (“Lan”), is named as the registered owner on title to the Kinglet property, Vinh and Nguyet seek title to Kinglet based on a purchase money resulting trust. Alternatively they claim that Lan held title only as a bare trustee for their benefit. In the further alternative, they seek title by way of a constructive trust.
2Lan asserts that her brother, Dau Huy Do (“Dau”), gifted the Kinglet property to her in 1999 after buying Kinglet using proceeds from the sale of a property on Warwick Castle Court (“Warwick”) in Scarborough that he had bought from his brothers. Dau corroborated Lan’s account with testimony that was supported by transaction records, parcel registers and various other documents for the Warwick and Kinglet properties. For their part, Vinh and Nguyet claim that they paid for Warwick and had a beneficial interest in its sale proceeds which Dau used to purchase Kinglet. However, the position taken by Vinh and Nguyet is based solely on oral evidence without any supporting financial or transactional documentation.
3For the reasons that follow, the claim for relief by Vinh and Nguyet is dismissed.
Background
[4]
Background
Vinh and Nguyet are elderly parents in their twilight years. In early 1989, they immigrated to Canada as refugees from a camp in Thailand where they lived after fleeing Vietnam following the end of the Vietnam War. Together with Lan and two of her sisters, Vinh and Nguyet landed in Toronto where they reunited with their sons who had arrived in Canada earlier as refugees after separately fleeing Vietnam via Malaysia, Indonesia, and Singapore, respectively.
5Upon arriving in Toronto, the parties initially lived in a hotel for a few weeks. Most of the reunited family members then began to live together in a rented home on Sadlee Cove Crescent in Scarborough. On September 1, 1989, they moved to the Warwick home in Scarborough. Title to the Warwick home was held by four (4) of the sons, namely Thai Huy Do (“Thai”), Chuc Do (“Chuc”) and Hoang Do (“Hoang”) who each had a 1% share, and by Kinh Huy Do (“Kinh”) who is the eldest son and had a 97% share. The mortgage for Warwick was initially with Municipal Savings and Loan Corporation before it was refinanced with RBC on August 12, 1991.
6On December 14, 1992, Thai, Chuc and Hoang sold their respective 1% shares in the Warwick property to Dau. At the time, Dau was studying at the University of Waterloo and working at Nortel, an Ottawa-based telecom company, where he went on to work as a software engineer. Dau initially paid Thai, Chuc and Hoang the sum of $3,870.00 to buy their collective 3% interests in Warwick, but they later returned his money to effectively gift their respective interests to him. Later on, Dau paid Kinh $85,000.00 to acquire his 97% interest in the property and became the sole owner on title to Warwick on December 30, 1993. All of these transfers were documented in transaction records and set out in the parcel register for the Warwick property.
7The parties and most of the siblings lived at Warwick as a family after moving to the home in September 1989. Dau did not reside at the Warwick home but paid for its mortgage and property taxes and made contributions to certain household purchases which included buying a television and a sewing machine for the family. For their part, the parties and the other siblings who resided at Warwick jointly paid for other household and living expenses. For a period of time, Dau rented a basement apartment to a tenant and applied the rental income against various carrying costs and other expenses for the property. Over time, most of the siblings married and moved out from the
Warwick home to live with their own families. For instance, Hoang lived at Warwick until about 1994 when he married and moved to his own home.
8Dau testified that he bought the Warwick property as an investment and also to support his parents and siblings who resided there. To afford the property, Dau lived quite modestly and made a number of personal sacrifices in order to provide the home for his parents and remaining siblings as their family residence. Dau periodically stayed at the Warwick home when he visited his family or attended business trips in Toronto.
9Over time, Vinh and Nguyet came to regard the Warwick property as their own home. When asked about this, Dau explained that his parents resided there and felt a sense of ownership due to Vietnamese cultural sensibilities even though they never bought the property themselves. Although Vinh and Nguyet told others that they owed Warwick, Dau never corrected them to avoid offending his parents or their sensibilities and because he wanted them to feel comfortable in the home which he willingly provided to them and his siblings to help and support them.
10On February 21, 1997, Dau sold the Warwick home to third parties for $185,500.00 and used the sale proceeds to buy a newly-built home on Kinglet Avenue in Mississauga for the parties and the remaining siblings to use as their residence. Around the end of 1996, Dau paid several
$5,000.00 deposits for his purchase of the Kinglet property which he bought for $210,566.62 on April 25, 1997. As Dau had moved to California for career opportunities, he instructed his solicitor on January 7, 1997 to have Lan sign the transaction papers as his power of attorney. To buy the Kinglet home, Dau took out a BMO mortgage and made bi-weekly mortgage payments before the mortgage was paid out and discharged on June 18, 1998.
11After purchasing Kinglet, Dau took out home insurance for the property and set up pre- authorized payments for his monthly premiums and property taxes. He also paid for certain home maintenance items and repairs, bought a fridge, purchased new door and windows, and paid for other household or upkeep items for the property.
12On May 19, 1999, Dau gifted the Kinglet home to his sister Lan and transferred title to her for nominal ($2.00) consideration. Dau chose to gift Kinglet to Lan on the understanding that she would reside there with their parents and care for them as they aged. By this point, Lan, Vinh and Nguyet were the only ones still living at Kinglet. Although Dau did not require Lan to care for
their parents as a condition of residing at the Kinglet property, Lan and their parents had lived together for 60 years and had enjoyed a positive relationship up until then. Dau understood that Lan and their parents would continue to reside at the Kinglet home and assume its various upkeep costs by themselves. In turn, Lan, Vinh and Nguyet jointly paid for their various household and living expenses as they continued to live together the Kinglet property.
13All of the above-mentioned transactions were documented. In this litigation, Lan produced extensive records to corroborate her account of how the various Warwick and Kinglet interests were acquired and transferred. She also produced records to show the various payments and financial contributions that she and Dau made for both properties, respectively.
14Title to the Kinglet property was transferred from Dau to Lan by a deed that his solicitor prepared in which Dau clearly had certified on May 18, 1999 that he is “not a spouse”. However, the deed includes a handwritten notation stating “husband to wife – natural love and affection” immediately above his solicitor’s signature on the deed sworn May 18, 1999. On balance, I accept that the notation, which suggests that the siblings were spouses, was made inadvertently.
15Lan and her parents had always resided together until January 2020 when Vinh and Nguyet left the Kinglet home in Mississauga to live with other family members in California. Up until then, Lan had helped her parents to buy groceries, attend church and medical appointments, and otherwise cope with various aspects of daily living while they had resided together. Earlier, when Vinh and Nguyet had been relatively healthy and mobile, Lan’s efforts to support them were more limited. Over time, Vinh and Nguyet grew more dependent on Lan as they aged. Vinh and Nguyet are now 89 and 86 years of age, respectively. In recent years, Nguyet underwent eye surgery, began using a walker, and experienced the onset of diabetes for which she needs help managing her blood sugar. Vinh also requires more support these days. More recently, Lan had assumed a more active role supporting her parents by taking them on outings (i.e., which led her to obtain a disabled parking permit for their vehicle) and by generally taking on more responsibility to care for them. Among other things, Lan brought Nguyet to the hospital in 2019 for emergency care after her mother sustained a fall and later suffered a blocked blood vessel in her eye.
16Eventually, Dau chose to sponsor Vinh and Nguyet for US naturalization so that he could invite them to live with him and his family at their home in Sunnyvale, California which has a
warmer climate than Mississauga. Lan preferred to remain at Kinglet by herself after her parents relocated to California. However, events did not unfold as they had anticipated.
17In 2019, Dau and his children visited his brother Duc Do (“Duc”) and his family at their home in California. During the visit, Duc’s wife Lin Ho (“Lin”) approached Dau to suggest having Lan removed from the Kinglet home. At the time, Dau did not understand why Lin wanted Lan to leave Kinglet although Duc had called him previously in 2018 to also suggest that Lan leave the Kinglet home. During the 2019 visit, Dau learned that Vin and Nguyet were not getting along with Lan and had made allegations of elder abuse against her. Among other things, Lan’s sister Hoa Do (“Hoa”) claims that Lan had dropped off Vinh and Nguyet in the middle of a roadway sometime in May or June 2019 which forced them to walk several blocks to return home to Kinglet with Nguyet using her walker. Hoa also claims that Vinh had asked her not to raise the incident with Lan to lower tensions and to avoid retaliatory abuse. Believing that Lan had been a good caregiver for their parents, Dau was skeptical of the allegations against her and wanted to discuss them privately with his parents but lacked an opportunity to do so during his visit with the extended family. Dau later booked a flight to see his parents but the COVID-19 pandemic forced him to abandon his visit with them.
18Regrettably, the dynamics within the Do family grew tense after January 8 and 9, 2020 when Vinh shared video clips on social media with family members who later told Lan that her brother Duc had recorded video footage of her using video cameras that he had hidden throughout the Kinglet home without Lan’s knowledge or consent. Hoa claims that the surveillance footage depicted Lan purportedly harassing Vinh and Nguyet. However, for reasons that are unexplained, none of these surveillance videos were ever produced. Lan never saw the videos and flatly denies the allegations against her. On January 11, 2020, Lan reported the hidden cameras and surveillance videos to police who investigated her complaint which led to the cameras begin removed from the Kinglet home. In her complaint to police, Lan also reported a prior disturbance when Duc attended the Kinglet home on March 28, 2019 unannounced and began to yell at her. When Lan purportedly began to video Duc’s conduct with her cellphone, Duc allegedly hit Lan’s arm as he tried to take her phone. Lan claims that Duc’s behaviour led to swelling on her arm and a bruise on her wrist which she photographed and showed to police who noted the injuries in an occurrence report. Lan initially chose to not report the assault and forgive Duc to maintain peace within the family but
later chose to report the alleged assault after learning of the hidden video cameras in her home. In making her complaint, Lan told police that she did not wish to have Duc charged but simply wanted the video cameras to be removed from her home.
19In January 2020, Vinh and Nguyet left the Kinglet home and arrived in California to reside with their son Duc and his wife Lin to escape the alleged abuse that Lan is said to have directed against them. Embittered, Vinh and Nguyet believe that Lan forced them from the Kinglet home, which they claims is rightfully their property, and seek to remove Lan from the home so they may return to take up residence without her there.
20On or about October 21, 2020, Dau learned of a will that Vinh had sent to his grandchildren. As his daughter was on the distribution list, Dau received a copy of the will which Vinh had signed on October 21, 2020. For reasons that are unclear, the names of the co-executors were redacted from the version of the will that was circulated which Dau believes is highly suspicious.
21At this time, the parties acknowledge that title to the Kinglet property is currently held solely in Lan’s name.2
Analysis
a. The Purchase Money Resulting Trust Claim
[22]
Analysis
As set out below, I do not find that Vinh and Nguyet have shown a sufficient basis for granting a purchase money resulting trust in this matter.
23A resulting trust arises when title to property is in the name of a party who, because they are a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner: Andrade v. Andrade, 2016 ONCA 368, at para 57, citing Pecore v. Pecore, 2007 SCC 17 at para 20.
24A purchase money resulting trust is a form of resulting trust and may arise where a person contributes to the purchase price of property without taking legal title: Andrade at paras 58-59. The concept of a purchase money resulting trust was summarized by the Supreme Court of Canada in Nishi v. Rascal Trucking Ltd., 2013 SCC 33 at paras 1, 2 and 21 as follows:
1A purchase money resulting trust arises when a person advances funds to contribute to the purchase price of a property, but does not take legal title to that property. Where the person advancing funds is unrelated to the person taking title, the law presumes that the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution. This is called the presumption of resulting trust.
2The presumption can be rebutted by evidence that at the time of the contribution, the person making the contribution intended to make a gift to the person taking title. While rebutting the presumption requires evidence of the intention of the person who advanced the funds at the time of the advance, after-the-fact evidence can be admitted so long as the trier of fact is careful to consider the possibility of self-serving changes in intention over time.
12The purchase money resulting trust is a species of gratuitous transfer resulting trust, where a person advances a contribution to the purchase price of property without taking legal title. Gratuitous transfer resulting trusts presumptively arise any time a person voluntarily transfers property to another unrelated person or purchases property in another person’s name (D. W. M. Waters, M. R. Gillen and L. D. Smith, eds., Waters’ Law of Trusts in Canada (4th ed. 2012), at p. 397).
25In considering the purchase money resulting trust claim, it is noteworthy that neither Vinh nor Nguyet adduced meaningful evidence to show that they ever advanced any funds to purchase Warwick in 1989. In support of their position that they purchased Warwick, Vinh gave a rather vague and largely impressionistic recollection of how they paid for the property. His account was devoid of particulars. The Applicants produced no documentary evidence to show the funds they used to purchase Warwick. In contrast, Dau gave detailed testimony (i.e., supported by transaction records including transfer deeds and a parcel register) that four of his brothers, namely Thai, Chuc, Hoang and Kinh, acquired Warwick on September 1, 1989 and held title to the property before Dau acquired their interests on December 14, 1992 and December 30, 1993, respectively, to take title to the property. As Dau indicated in his evidence, Thai, Chuc, Hoang and Kinh had landed in Canada several years earlier and had been fairly established before acquiring the Warwick property where the reunited family took up residence.
26In his evidence, Vinh was unable to say how much money he and Nguyet contributed to purchase the Warwick property, what their savings had been then, or how much they had been earning before they purportedly bought the home. Vinh did not know the amount of the down
payment to purchase Warwick, the amount of the mortgage, the cost of utilities, property taxes, or other carrying costs, when improvements were made to Warwick (i.e., by installing an interlock driveway and renovating the basement), how much the improvements cost, or how much rent the basement tenant at Warwick was paying, among other things. When pressed, Vinh responded with vague and impressionistic answers while testifying that Nguyet and himself had been able to buy the Warwick property with funds which they somehow had earned without detailing where or how, and without offering any particulars to meaningfully corroborate his narrative. Taking this all into account, I find that Vinh and Nguyet have not shown what, if anything, they paid to buy Warwick. Without a proper foundation to show how much Vinh and Nguyet actually paid in order to purchase the property, I do not find that they have established a purchase money resulting trust in this case.
27In any event, having regard to the limited record before the court, I am satisfied that Vinh and Nguyet likely were not in a position to afford to purchase the Warwick property which closed on September 1, 1989. Vinh, Nguyet, Lan and her two sisters landed in Toronto on February 22, 1989 as refugees fleeing Vietnam under arduous circumstances. As set out in their records of landing, each arrived in Canada with no funds in their possession. Noting that his parents were refugees who had immigrated to Canada from a refugee camp in Thailand, Dau testified that his parents landed in Toronto without much more than what they had been wearing. Hoa claims that Vinh and Nguyet immigrated to Canada with family jewellery in their possession which they could have sold to raise funds to buy the Warwick property. But Vinh and Nguyet did not adduce any other evidence to show that they had any jewellery or valuables in their possession when they landed in Toronto, or that they sold their valuables to raise funds to buy Warwick. Hoa’s evidence about the valuables is uncorroborated. Moreover, the record seems to show that Vinh and Nguyet had an extremely tight budget after they landed in Toronto and initially lived on social assistance while they established themselves in their new surroundings. I accept without any hesitation that Vinh and Nguyet worked incredibly hard to diligently create a new life in Canada for their family. Shortly after arriving in Toronto, Vinh began to attend university to earn a teaching degree while Nguyet attended classes to learn new language skills, all while both worked multiple jobs to support themselves and their children. That said, I am unable to find on the limited record in this matter that Vinh and Nguyet had sufficient funds by September 1, 1989 to afford to buy Warwick. On the evidence, I find that there is an insufficient evidentiary basis to credibly conclude that Vinh and Nguyet had access to sufficient funds that would have enabled them to purchase the property.
b. The Bare Trust Claim
[28]
The Bare Trust Claim
For the reasons that follow, I am satisfied that Lan does not hold her interest in the Kinglet property as a bare trustee for Vinh and Nguyet.
29A bare trust, or a simple trust, arises where the trustee holds property without any further duty to perform except to convey the property to the beneficiary(ies) upon demand: Lyttleton v. Lyttleton, 2022 ONSC 5120 at para 25, citing D. Waters, Water’s Law of Trusts in Canada, 5th ed. (Toronto: Thomson Reuters, 2021) at 2.VIII. The distinguishing characteristic of a bare trust is that the trustee exercises no independent powers, discretions or responsibilities but to carry out the instructions of the principal(s): Trident Holdings Ltd. v. Danand Investments Ltd., 1988 194 (ON CA), [1988] OJ No 355 (CA) at para 30, citing M.C. Cullity, “Liability of Beneficiaries – A Rejoinder” (1985-86), 7 E7TQ 35 at 36; Lyttleton at para 26.
30A bare trust is a form of express trust, which must satisfy the following requirements in order to be valid:
The relevant parties to the trust must have capacity;
The three (3) certainties must be met:
i. Certainty of intention to create a trust;
ii. Certainty of subject matter; and
iii. Certainty of objects (i.e., beneficiaries);
The trust must be constituted, that is, the trust property must be transferred to the trustee; and
Any necessary formal requirements must be met, such as compliance with the Statute of Frauds, RSO 1990, c. S.19, ss. 4 and 9-11.
Rubner v. Bistricer, 2019 ONCA 733 at para 49, citing A.H. Oosterhoff, Robert Chambers & Mitchell McInnes, Oosterhoff on Trusts: Text, Commentary and Materials, 8th ed., (Toronto: Carswell, 2014) at 189; Tillsonburg Scout Association v. Scouts Canada, 2020 ONSC 747 at para 22. See also Markle v. Toronto (City), 2002 49627 (ONSC) at para 39, cited in Roberts v. Hyland, 2017 ONSC 2164 at para 152.
31The above-noted three certainties are reflexive in that, although they are considered one at a time, “consideration of the certainty of subject matter and certainty of objects may inform (reflect back on) the matter of certainty of intention”: Rubner at para 49, Angus v. Port Hope (Municipality), 2017 ONCA 566 at para 95, leave to appeal denied [2017] SCCA No 382.
32There is no real dispute that the parties all had capacity at the relevant material times. In addition, the subject matter of the alleged trust is clearly identifiable and is not in dispute. To this end, Vinh and Nguyet claim that a trust initially arose in respect of the Warwick property before it was sold and the proceeds were used to purchase the Kinglet property. In turn, Vinh and Nguyet submit that a bare trust was constituted when the alleged trust property was transferred to Lan who holds legal title to the Kinglet property.
33In my view, Vinh and Nguyet have not established a certainty of intention to create the alleged trust. They claim that a bare trust initially was established for them over the Warwick property and was later transferred to the Kinglet property. However, they adduced no evidence of any written trust agreement between the parties or any intention to create such an agreement, and Vinh conceded in his evidence that no trust documentation was ever created to establish Nguyet and himself as the beneficial owners of either Warwick or Kinglet, respectively. Instead, Vinh relied solely on vague assertions of purported discussions with his sons that occurred decades ago to show an intention to create the alleged bare trust by oral agreement. Importantly, Vinh and Nguyet did not call any evidence from any of their sons who allegedly created the bare trust for them. Moreover, Nguyet did not testify at trial.
34In her evidence, Hoa testified that a bare trust claim arose based on vague references to an unspecified oral agreement between her parents and her brothers, although exactly which of her brothers who entered into the alleged bare trust agreement is entirely unclear from her evidence. In light of this, I find that Hoa’s evidence was overly-broad and lacked meaningful particulars to establish a certainty of intention to create a bare trust over either the Warwick or Kinglet properties, respectively.
35In contrast, Dau gave detailed evidence in which he methodically explained how various interests in Warwick and Kinglet were acquired and transferred over time. Dau testified that a bare trust for Warwick or Kinglet was never created in favour of Vinh and Nguyet, respectively.
I found Dau to be a straightforward and credible witness whose testimony was supported by transaction records that verified the various transfers for both properties which did not hint of any intention to create a bare trust. Neither Vinh nor Nguyet asserted their bare trust claim until they brought these proceedings decades after the alleged trust was made. Having regard to all of this, I am not persuaded that a bare trust over Warwick or Kinglet was ever created for Vinh or Nguyet.
36In any event, I am satisfied that the bare trust claim brought cannot succeed given the absence of any records to establish their alleged trust interests in the Warwick or Kinglet properties. As this lack of documentation breaches the writing requirement found under s. 4 of the Statute of Frauds, I find that the bare trust claim must fail: Sundarampillai v Ponnambalam, 2015 ONSC 5466 at para 32; Roberts at para 156; Jansari v. Jansari, 2020 ONSC 2473 at paras 52-53.
c. The Constructive Trust Claim
[37]
The Constructive Trust Claim
As set out below, I am not persuaded that Vinh and Nguyet have established their unjust enrichment and constructive trust claim against Lan.
38To obtain the equitable remedy of a constructive trust, Vinh and Nguyet must prove a claim for unjust enrichment against Lan. The test for unjust enrichment is well-established, and has been described as follows:
a. The moving party must show he/she conferred a benefit or enrichment on the responding party;
b. The moving party must show there is a corresponding deprivation to them; and
c. There must be no juristic reason for the responding party to retain that enrichment.
Peter v. Beblow, 1993 126 (SCC), [1993] 1 SCR 980 at para 6; Sundarampillai at para 34, citing Aksman v. Shenderey, [2010] OJ No 3511 (SCJ) at para 77.
39In appropriate cases, the proprietary concept of a constructive trust may be an appropriate remedy to compensate for unjust enrichment by restoring a benefit that justice does not permit one to retain: Moore v. Sweet, 2018 SCC 52 at paras 35-36. For a constructive trust to be found, there must be a direct link to the property which is the subject of the trust by reason of a claimant’s
contribution, in addition to showing that monetary compensation is an inadequate remedy: Peter
at para 25 and 29.
40Vinh and Nguyet claim that they conferred a benefit or enrichment on Lan by having made financial contributions to acquire the Warwick property that, in turn, allowed the Kinglet property to be acquired and later conveyed to Lan. They also submit that they made various other financial contributions or payments for the maintenance or upkeep of Warwick and Kinglet that directly or indirectly benefitted and enriched Lan as a result.
41As set out earlier, Dau testified that he purchased his interest in Warwick from his brothers, Thai, Chuc, Hoang and Kinh with money that he earned by working at Nortel (n.b., before some of the funds were returned when Thai, Chuc and Hoang gifted Dau their interests in Warwick), and by taking out a mortgage which he paid using his own funds. Dau further testified that he sold Warwick and used its net sale proceeds to buy the Kinglet property, once it was built, by taking up a different mortgage which he paid off using his own funds. Dau’s account is corroborated by various transaction and financial records that Lan produced in this litigation.
42Among other things, Vinh and Nguyet claim that they conferred a benefit or enriched Lan by having made financial contributions over the years to the upkeep and maintenance of the Warwick and Kinglet properties while they resided in those homes. To this end, Vinh and Nguyet produced some limited evidence of certain contributions they made over the years to maintain and upkeep both properties. But neither Vinh nor Nguyet gave meaningful evidence to show the extent of their financial contributions to either property beyond making broad or vague assertions that were largely impressionistic or anecdotal.
43Although the record before the court on this point is limited, I accept that Vinh and Nguyet likely made financial contributions over the years to upkeep, maintain or renovate the Warwick and Kinglet properties, respectively, and likely contributed to expenses such as home insurance, property taxes, and other costs associated with owing the subject properties. But as Lan accurately observed, Vinh and Nguyet did not pay any rent and essentially benefitted from living rent-free for many years at the Warwick and Kinglet properties while paying for only a portion of their household and other living expenses that were otherwise shared by the family members who lived with them at the properties, or by Dau and Lan who came to own the properties, respectively. In
the circumstances, and despite making some payments to maintain or upkeep the properties and contribute to household expenses, I accept that Vinh and Nguyet effectively were in no different position than a tenant whose rent or lease payments typically assist an owner with keeping a mortgage in good standing. To this end, I find that making the types of contributions which Vinh and Nguyet purportedly made should not create a beneficial interest in property simply because the funds are used to fund a mortgage or defray other carrying costs or household expenses: Sundarampillai at para 40. Moreover, any money that Vinh and Nguyet contributed to pay for either Warwick or Kinglet, once given to Dau or Lan became their money even it the funds were intended to be used, and in fact were used, to support the family members by paying for carrying costs and household expenses: Andrade at para 45. Having regard to the limited evidence adduced by Vinh and Nguyet in this case, I am not persuaded that they have established that a benefit or enrichment accrued to Lan, let alone any corresponding deprivation to themselves, to properly ground their claim for unjust enrichment. In any event, I am not persuaded that Vinh and Nguyet have shown a lack of juristic reason for Dau or Lan to retain any alleged enrichment from their parents’ financial contributions as both Vinh and Nguyet lived rent-free and benefitted from the financial and other support that Lan and Dau willingly provided to their parents while they resided at the Warwick and Kinglet homes, respectively.
44There is conflicting evidence about the nature and extent of any support or care that Lan gave to Vinh and Nguyet, particularly after Lan is said to have committed elder abuse against her parents (i.e., before the parents left Kinglet to live with family members in Pennsylvania, and later in California), which Lan flatly denies. Vinh and Nguyet invited me to infer that Duc installed the hidden cameras in the Kinglet home to investigate his parents’ abuse allegations. In response, Lan submits that the surveillance videos uncovered no such impropriety which explains why none of the video recordings were ever produced in this litigation. Irrespective of what the alleged videos may or may not reveal, I am satisfied that Lan helped Vinh and Nguyet to buy groceries, brought them to medical appointments, took them on other errands or outings, and brought Nguyet to the hospital for emergency care on a couple of occasions, all of which Vinh and Nguyet did not seriously dispute at trial.
45Taking this all into account, I am not satisfied that Vinh and Nguyet have shown that their financial contributions for maintenance/renovation costs or their shared living expenses while they
lived rent-free at Warwick and Kinglet establish an enrichment, a corresponding deprivation, and the absence of a juristic reason for the enrichment to support an unjust enrichment and constructive trust claim. As set out earlier, Vinh and Nguyet described their financial contributions in only vague or imprecise terms and did not produce meaningful financial records to corroborate their alleged contributions. In any event, a court will impress a disputed property with a constructive trust only if: a) a personal remedy would be inadequate, and b) the contribution that founds the proceeding is linked or causally connected to the property over which a constructive trust is claimed: Moore v. Sweet, 2018 SCC 52 at para 91; Attanayake v. Mikhail, 2019 ONSC 5692 at para 31. Even where the court finds that a constructive trust would be an appropriate remedy, it will be imposed only to the extent of a claimant’s proportionate contribution (direct or indirect) to the acquisition, preservation, maintenance or improvement of the property: Ibid; Kerr v. Baranow, 2011 SCC 10 at para 51. From the limited record in this case, I find myself unable to determine the proportionate contributions that Vinh and Nguyet made towards the Warwick and Kinglet properties, respectively, which militates against granting a constructive trust remedy in this case.
46Accordingly, I am not persuaded that Vinh and Nguyet have made out an unjust enrichment and constructive trust claim against Lan.
Outcome
[47]
Outcome
Based on the foregoing, the application is dismissed. On consent of the parties, the Order of Woollcombe J. dated December 15, 2020 is hereby set aside.
48The Respondent may deliver written costs submissions of up to 5 pages (excluding her bill of costs and any offer(s) to settle) within 20 days. The Applicants may deliver costs submissions on the same terms within a further 20 days. Reply submissions may not be delivered without leave.
Doi J.
Date: November 28, 2022
COURT FILE NO.: CV-20-2026
DATE: 2022 11 28
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Vinh Quang Do and Nguyet Thi Tran, Applicants
AND:
Lan Thi Phuong Do, Respondent
BEFORE: Doi J.
COUNSEL: Manny Rai and Amandip Sahi, for
Applicants
Mayssia Elajami and Dennis Loveridge, for Respondent
REASONS FOR JUDGMENT
Doi J.
DATE: November 28, 2022
Footnotes
- For clarity, I shall refer to the parties and the family witnesses by their first names as many share the same surname. In doing so, I intend no disrespect to any of the parties or witnesses, respectively.
- The Applicants commenced this proceeding by bringing an urgent motion without notice on May 26, 2020 for leave to issue an interim certificate of pending litigation based on a draft application that was included in the materials for the motion. On May 28, 2020, Trimble J. ordered the motion materials to be served of the Respondent. The Respondent did not appear at the return of the motion on June 3, 2020 when Trimble J. granted the Applicants an interim CPL after Applicants’ counsel incorrectly represented to the court that the Respondent had received and opened the email that he had used to serve the full application record. The Applicants now acknowledge that the representation made to the court about service on that return was incorrect and that their counsel never actually got any notification that the Respondent had opened the email message. Later, the Respondent explained that she had discontinued using the email address to which the Applicants had emailed the application materials to her. The matter returned to court on December 4, 2020, effectively without notice to the Respondent, when the Applicants asked for various relief including a vesting of ownership of the Kinglet home to themselves. As the Respondent did not appear at the December 4, 2020 return, the court ordered the Applicants to file evidence of personal service of the application materials on the Respondent. Although the Applicants claim that they made efforts to affect service on the Respondent by regular mail and other alternate means of service, she claims that she did not receive the application materials before the matter returned to court on December 14, 2020 when Woollcombe J. granted an order vesting title of the Kinglet property to the Applicants, in the Respondent’s absence. For reasons that are unclear, the Applicants did not serve the time-sensitive application materials on the Respondent by personal service nor send the materials to her by registered mail or courier with a tracking code, nor otherwise call the Respondent to advise her of the impending return date and thereby bring the application to her attention despite having her phone number at all material times. In the circumstances, the Respondent asserts that the Applicants proceeded without proper service or notice to gain an unfair litigation advantage. When this matter returned for trial, the Applicants conceded the Respondent’s position that she had insufficient notice of the application due to the inadequacy of their efforts to serve her prior to the December 14, 2020 return, and they further conceded that Woollcombe J.’s vesting order dated December 15, 2020 should properly be set aside. Accordingly, the trial proceeded on the basis that Lan currently holds title to the Kinglet property as its sole owner.