IN THE MATTER OF THE ESTATE OF STEPHEN JOSEPH STREN

COURT FILE NO.: CV16-00013266-00ES DATE: 20230306 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Morrissa Amsel, Claimant/Responding Party AND: Cynthia Stren in her capacity as Estate Trustee of the Estate of Stephen Stren, Estate Trustee/Moving Party

BEFORE: C. Gilmore, J.

COUNSEL: Mark A.B. Donald, Counsel for the Moving Party Estate Trustee Arash Jazayeri, Counsel for the Claimant, Responding Party

HEARD: February 8, 2023

ENDORSEMENT on motion for summary judgment

INTRODUCTION

[1] The purpose of limitation periods is to promote certainty, fairness and diligence. A plaintiff must pursue its claim with reasonable diligence once aware of the claim and a defendant must be able to defend the claim within a reasonable period of time. Allowing claims to languish results in the possibility of lost or destroyed evidence, faded memories and the risk of miscarriages of justice.

[2] In this case, the Estate Trustee, Cynthia Stren (“Cynthia”), brings a motion for summary judgment against a claimant of the Estate, Morrissa Amsel (“Morrissa”) on the grounds that Morrissa’s Claim is statute-barred.

[3] Morrissa claims a trust and contractual interest in an asset owned by the late Stephen Stren (“the deceased”) and located at 373A Lawrence Avenue West, Toronto (“the Property”). The claim is based on an Agreement entered into between Morrissa and the deceased on October 5, 2006 (“the Agreement”). The Property was purchased on October 6, 2006 for $825,000 and registered solely in the deceased’s name. The property was subject to a first mortgage of $536,250 and a second mortgage of over $100,000. A third mortgage for $52,000 was placed on the Property some time later.

[4] The deceased died on December 23, 2012. Cynthia obtained a Certificate of Appointment of Estate Trustee Limited to Assets in the Will on October 23, 2016. The son of Cynthia and the deceased, Scott Stren (“Scott”), has resided in the Property since 2013 and became the owner of the Property in 2016.

[5] The Agreement specifies that Morrissa does not have a beneficial, equitable or legal interest in the Property. There is, however, an acknowledgement by Cynthia that Morrissa contributed $8,000 towards the cost of Land Transfer Tax on the purchase. Morrissa, who was a real estate agent at the time also claims that she waived her agent’s commission on the purchase and sale. In total, she claims a contribution to the original purchase price of $50,000. Cynthia challenges Morrissa’s contention that she contributed more than $8,000 to the Property.

[6] If the Property was sold, Morrissa was to receive one-third of the net profits subject to certain conditions. The Agreement stipulates that Morrissa is to receive one-third of any rental income and pay one-third of the expenses of the Property if she does not reside at the Property. The expenses are particularized in the Agreement. Morrissa never received any rental income, nor is there any reliable evidence that she paid any expenses.

[7] Morrissa commenced a claim against Cynthia and Scott in September 2013. She sought an Order to sell the Property, an accounting of all rents, and damages.

[8] In July 2014 Scott brought a motion to have Morrissa’s claim against him struck. The claim against Scott was dismissed and Morrissa was ordered to pay Scott $4,000 in costs. Those costs have never been paid.

[9] On September 5, 2014, the claim against Cynthia was dismissed on consent by Associate Justice Haberman. The Order dismissing the claim specifies that it is without prejudice to Morrissa’s right to commence a new claim against the Estate. Morrissa was ordered to pay Cynthia costs of $5,000 with interest accumulating at the rate of three percent. Those costs have never been paid. As no claim was commenced within two years of the deceased’s death or within two years of the 2014 Order, Cynthia assumed no claim would be made by Morrissa.

[10] In 2014 Scott commenced a claim against the Estate with respect to entitlements under his father’s Will. The matter was settled and not having received any further claim from Morrissa, Cynthia transferred the Property to Scott in accordance with the judgment of Penny J. dated September 6, 2016. Cynthia used Estate funds and her own funds to pay off the mortgage on November 24, 2017, as the Penny Order required her to transfer the Property free of any encumbrances. Cynthia had been making the mortgage payments on the Property until that date.

[11] In January 2018 Morrissa commenced a new claim against the Estate for one-third of the value of the Property. In March 2018, Morrissa amended her claim against the Estate to add a trust claim and sought $225,000 or a one-third interest in the Property.

[12] Cynthia now seeks summary judgment to dismiss Morrissa’s Claim on the grounds it is statute barred. In the alternative, Cynthia seeks a stay of Morrissa’s claim and security for costs.

[13] Morrissa defends the motion and submits that her claim is not statute barred and that security for costs is not appropriate given her interest in the Property. Morrissa claims that she was under a form of disability at the relevant times which prevented her from commencing a claim within the prescribed periods. She further claims that neither the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“the Limitations Act”), nor the Trustee Act, R.S.O. 1990, c. T.23 (“the Trustee Act”), bar her claim as it is an equitable claim in land which falls under the Real Property Limitations Act, R.S.O. 1990, c. L.15 (“the RPLA”), for which the limitation period is 10 years.

[14] For the reasons set out below, the motion of the Estate Trustee is granted and Morrissa’s claim is dismissed. The claim is statute-barred under the Limitations Act. If not statute-barred under the Limitations Act it is statute-barred under the Trustee Act. Morrissa has not adequately explained or provided sufficient evidence of her reasons for delay. Her evidence does not amount to any incapacity or disability that would have prevented her from issuing a claim.

[15] Further, the RPLA does not apply. Morrissa’s claim is not in equity. It is a contractual claim based on a profit-sharing arrangement. In any event, the Agreement specifically excludes Morrissa from having any equitable interest in the Property.

[16] At the conclusion of the motion, I granted the relief sought and gave a brief oral ruling with reasons to follow. These are those reasons.

THE REQUEST TO ADMIT LATE FILED AFFIDAVITS

[17] Before the motion began, Morrissa requested leave to file two affidavits which were served after the date of her cross-examination. Those affidavits were the affidavit of Omar Sulaiman sworn February 2, 2023 (“the Sulaiman affidavit”) and the affidavit of David Heier sworn January 25, 2023 (“the Heier affidavit”).

[18] This motion was originally scheduled to be heard on October 24, 2022 but was adjourned to February 8, 2023 on consent. Mr. Jazayeri has had since that date to put Mr. Donald on notice of his intention to file additional evidence and seek his position. When Mr. Donald contacted Mr. Jazayeri to confirm this motion was proceeding, there was no mention of a request to file further evidence. Instead, the Heier affidavit was served on January 25, 2023 (the date the motion confirmation was sent in) and the Sulaiman affidavit was served on February 2, 2023 at midnight.

[19] Mr. Donald’s position on the affidavits was set out in his email to Mr. Jazayeri on February 7, 2023. He stated that the Sulaiman affidavit contained many documents which were already contained in other parts of the record. There were also new documents on which Mr. Jazayeri sought to rely which could have been introduced earlier and required technical or expert opinions. Mr. Donald challenged both the relevance and probative value of the Sulaiman affidavit.

[20] Mr. Donald’s position on the Heier affidavit was that it was both late and irrelevant to the issues on the motion.

[21] Mr. Jazayeri submitted that he thought the Sulaiman affidavit would be helpful as it compiled a number of relevant documents that were contained in various places in the record and put them all together. The new documents in that affidavit, the MLS listings and Bank of Canada interest rates, are public domain documents available to anyone.

[22] As for the Heier affidavit, the Facebook material filed as exhibits to that affidavit only became available recently. Mr. Jazayeri offered to adjourn the motion if Mr. Donald sought to cross-examine on the new affidavits. Mr. Donald did not want to adjourn the motion as an adjournment would presume that the affidavits were admissible. He submitted they are not and requested that this Court exclude them on the grounds of relevance and admissibility.

Ruling on Late Filed Affidavits

[23] The Court declined to admit the late-filed affidavits and gave an oral ruling on the issue prior to the commencement of submissions on the main motion. Some additional reasons for the refusal are set out below.

[24] In addition to these affidavits offending r. 30.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I find they are both unnecessary and lack relevance. I note as well that despite Sanfilippo’s J. specific ruling that court records be hyperlinked in this case, Morrissa’s expansive Responding Record dated February 3, 2023 contained no hyperlinks, making it virtually impossible for this Court to navigate in Caselines through the massive number of documents contained in it. Those documents included both the Sulaiman affidavit and the Heier affidavit.

[25] The Heier affidavit in particular contains dozens of pages of Facebook extracts which appear to be a form of character assassination of Cynthia. As I reminded counsel on several occasions, this motion is not about the parties’ opinions about the other party’s character. It is about a substantive and important legal issue which does not engage the parties’ mutual animosity. As such, my decision below consciously avoids any recitation concerning the parties’ allegations about the other’s conduct as it is irrelevant to whether Morrissa’s claim is statute-barred.

[26] Apart from the issues of relevance and admissibility it would simply be unfair to Mr. Donald’s client for the Court to rely on the late-filed affidavits. The parties need to move on with this case and, as counsel rightly conceded, the record without the impugned affidavits is more than ample for the Court to decide the case.

[27] The late-filed affidavits were therefore not admitted into evidence and were not relied upon by the Court in deciding this motion.

FACTUAL BACKGROUND

[28] The Agreement signed between Morrissa and the deceased is the key document in this case. Morrissa reviewed and signed each page of the Agreement. Morrissa described herself as a sophisticated individual with a college degree and a licence to sell real estate. She had experience in both real estate transactions and mortgage financing. Her evidence on cross-examination was that she also had experience with property law documents.

[29] As to Morrissa’s interest in the subject Property, the Agreement specifies as follows [my emphasis]:

WHEREAS pursuant to an Agreement of Purchase and Sale accepted September 13, 2006, Stren is to become, on October 5, 2006, the legal, beneficial and registered owner of the property legally described as Part of Lots 104 and 105, Plan 1786, being Part 2, Plan 66R-20166, City of Toronto and municipally known as 373A Lawrence Avenue West, Toronto, Ontario (the "Property");

AND WHEREAS Amsel has contributed funds towards the purchase of the Property, but is to have no beneficial, equitable, registered or legal interest in the Property.

Amsel acknowledges and agrees that she has no beneficial, legal or equitable interest in the Property, and shall not register any Notice, Caution, Claim or any such similar document against Title to the Property.

[30] With respect to Morrissa’s right to occupy the Property and her obligations to maintain it, the Agreement specifies as follows:

a. Morrissa could occupy the Property (Section 2);

b. Morrissa would be permitted to occupy the Property if she paid all the carrying costs (sections 4.1 & 4.2);

c. If Morrissa did not occupy the Property, she was to assume 1/3 of the carrying costs (Section 4.3);

d. Morrissa was to receive 1/3 of the rents collected if the Property was rented (Section 4.6);

e. If the Property were ever sold - which sale was in the deceased's sole discretion – Morrissa was to receive 1/3 of the net profit (Sections 5 & 7)

[31] In fact, Morrissa did occupy the Property for up to two years commencing in 2006. According to Cynthia, Morrissa was asked to leave in August 2008 because she did not pay her share of expenses or rent. Morrissa does not agree that she was asked to leave, but she does agree that she left on her own accord because she was unable to pay rent or other expenses due to financial difficulties including her bankruptcy in 2008.

[32] The deceased, and after his death, Cynthia, paid all the carrying costs of the Property until it was transferred to Scott. Cynthia has provided evidence of the expenses she paid with respect to the Property. While Morrissa claims to have paid some expenses between 2006 and 2008, she has not provided any evidence of such payments. Morrissa’s position is that the rent for the property would have exceeded the expenses and there was therefore no reason for her to contribute to expenses.

[33] Morrissa claims that the reason she did not commence a new claim earlier than January 2018 is that she was depressed, had lost her job, and that her mental and psychological condition rendered her incapable of proceeding with another claim until early 2018. Just before her cross-examination on September 19, 2022, Morrissa served two additional affidavits attempting to explain why she had waited so long to take steps.

[34] In answer to an undertaking given on her examination, Morrissa provided a physician’s note dated November 30, 2022, which sets out as follows:

To whom is may concern. The patient is under my care since December 2015 and was suffering from depression and other mental health issues for a long time. I feel she did not have the capacity to deal with litigation matters because of her medical illness.

[35] No further medical evidence or diagnosis was provided by Morrissa.

[36] In her fourth supplementary affidavit sworn September 19, 2022, Morrissa states that in the period between the September 5, 2014 dismissal Order and early 2018, she was severely depressed as she had lost her job, made an assignment in bankruptcy and had other problems in her life. She deposed that her mental and psychological condition rendered her incapable of proceeding with a claim during that time frame.

[37] An affidavit from Morrissa’s friend Vito Romita and sworn September 19, 2022, states that Mr. Romita has known Morrissa since 2008. He confirms Morrissa’s statements about depression, losing her job and her assignment in bankruptcy. He concludes his affidavit by stating that he does not believe that Morrissa was in any mental state to be able to be involved in litigation during the period of 2014 to 2018.

[38] Morrissa was asked during her examination to detail what “problems” were in her life that contributed to her inability to commence a claim within two years of 2014. Her evidence was as follows (my summary):

a. She had problems putting up her mother’s gravestone.

b. Her five half-siblings created problems for her which she was unable to detail due to a “gag order.”

c. She refused to provide any further information on the basis that the information was personal.

[39] Morrissa was also asked if she had ever been diagnosed with depression by her treating physician. She replied that she believed she had been diagnosed with depression. When asked if there were other things that may have rendered her incapable of commencing her claim until 2018 her response was that she was not sure. Morrissa did not provide any other medical evidence which provided a diagnosis or medical/expert opinion related to her depression or psychological condition between 2014 and 2018.

ANALYSIS AND RULING

Issue #1 – Is this an Appropriate Case for Summary Judgment

[40] Rule 20.04(2)(a) of the Rules of Civil Procedure states:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[41] According to Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 49, 51 and 67, a case appropriate for summary judgment is one where the record permits the Court to make findings of fact and apply the evidence to those facts. The Court may also consider whether summary judgment is a more proportionate and expeditious manner to determine the result as opposed to a trial.

[42] In the case at bar, there is a complete record including transcripts of the two days of cross-examination of both parties on all issues. The parties also filed multiple affidavits (Morrissa filed five) and expansive facta.

[43] There is no reason not to proceed by way of summary judgment in this case. The law on whether a case may be statute-barred is clear. The evidence in the affidavits filed provides the necessary record for the Court to make the required determinations of the facts based on the applicable law. Morrissa did not object to proceeding by way of summary judgment and provided a full defence of her objection to the dismissal of the case.

Issue #2 – Is the Claim Statute-Barred Based on the Limitations Act and/or the Trustee Act

[44] The legal issues on this issue are quite discrete; is Morrissa’s claim statute-barred by either the Limitations Act and/or Trustee Act and are there any exceptions to the limitation period which would take Morrissa outside the scope of the two Acts mentioned above.

[45] Dealing first with the Limitations Act. The relevant provisions are set out below:

Basic limitation period

4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.

[46] Morrissa’s own evidence was that she had experience with real estate transactions and documents. There is no argument that Morrissa was acting as the deceased’s agent in the real estate transaction and in law owed him a fiduciary duty. There was no duty going the other way as inferred by Morrissa.

[47] I find that Morrissa was not an unsophisticated party to the Agreement, and I reject that the Agreement was inherently unfair to her. She may not have made the best bargain by agreeing to exclude any legal, beneficial or equitable rights in the subject Property in exchange for her contributions, but the Court will not interfere when capable and informed people enter into bad bargains.

[48] It is conceded that Morrissa made an $8,000 contribution towards Land Transfer Tax on the purchase. Her contribution by way of waived commission is disputed and no proof was offered of that contribution. In the end, the amount she may have contributed, whether $8,000 or $50,000, becomes irrelevant in the context of the considerations on this motion. The Agreement gave Morrissa contractual rights to profit sharing and rental income. Such rights do not amount to any proprietary interest in the Property.

[49] I also note Morrissa’s own evidence that in 2008 she could no longer pay her share of expenses and left the Property. Morrissa went bankrupt in 2008. Whether she left on her own or was asked to leave (as alleged by Cynthia) is of no import. The fact is that at that point Morrissa made a determination that she was no longer going to honour the Agreement. That determination was borne out in her actions over the intervening 15 years as she has never made a contribution to the Property since 2008. Even her alleged contributions between 2006 and 2008 are in dispute as she was unable to provide any evidence that she made such contributions.

[50] In contrast, there is significant evidence that the deceased, and subsequently the Estate and Cynthia personally paid all of the expenses for the Property including mortgage, taxes and utilities from the date of purchase. Cynthia paid out the mortgage in 2017 to comply with the terms of the settlement with her son. All of this was done before Morrissa started her claim in January 2018.

[51] Morrissa complains that she never received an invoice for expenses nor any share of rental income. First, I note that the Agreement did not bind the deceased (or his heirs) to rent the Property. Further the Agreement is clear that the requirement for Morrissa to pay her share of expenses was not dependent on whether rental income was received. Therefore, her argument that rental income would have more than offset her share of expenses is simply not borne out. While this Court is not tasked with determining the merits of Morrissa’s claim, there is a good argument that the Agreement may have already been at an end in 2008 when Morrissa left the Property.

[52] If the Agreement was not at an end in 2008, certainly Morrissa was aware that she had a claim by that date. However, she did not actually issue a claim until 2013. The claim is made against Cynthia and Scott notwithstanding that the deceased had died in December 2012. It is clear that the death of the deceased certainly provoked Morrissa to assert her claim.

[53] Paragraph 2 of the dismissal Order of Master Haberman dated September 5, 2014, states as follows:

2. THIS COURT ORDERS that the action be and it is hereby dismissed as against the defendant Cynthia Stren on consent, without prejudice to the plaintiff to commence a new action against the Estate of Stephen Stren.

[54] It is this Court’s view that nothing could be clearer with respect to the start of the limitation period than this paragraph. However, despite this direction from the Court, Morrissa did not commence a new claim until January 2018, more than three years after the Haberman Order.

[55] Morrissa submitted two main defences to this motion. First, she lacked the required capacity to start a new claim within the prescribed time, and second, that the limitation period under the RPLA applies with respect to her equitable claim in land.

[56] With respect to her arguments related to capacity, Morrissa provides a letter from her doctor dated November 30, 2022, the affidavit of Mr. Romita and her own evidence.

[57] Dealing first with the letter from her doctor, it should be noted that this letter was produced by way of an answer to undertakings on December 6, 2022. It did not form part of any of her evidence prior to September 19, 2022 (the date of her cross-examination). It is the only medical evidence that she offers.

[58] The doctor’s letter is not in the form of an affidavit and therefore there was no possibility for Mr. Donald to cross-examine upon it. The doctor states that he “feels” Morrissa was not capable of dealing with litigation matters after 2015. The doctor does not provide what qualifications he has to opine on Morrissa’s capacity, it is apparently just a feeling. Further, there is no information on Morrissa’s medical condition prior to 2015.

[59] The doctor’s note is neither a capacity assessment nor a legal diagnosis. It is a vague self-serving note to which the Court accords no weight. It is also inadmissible as it purports to offer an expert opinion without the required affidavit or Acknowledgement of Expert’s Duty under the Rules. As such, I find that Morrissa has failed to medically support her limitations defence and is presumed to have had capacity from the date of the Haberman Order (October 5, 2014) to the date of the commencement of her claim in January 2018.

[60] Morrissa also provides the affidavit of Mr. Vito Romita sworn October 19, 2022 (also provided immediately before Morrissa’s cross-examination.) I agree with Mr. Donald that this evidence simply repeats the evidence of Morrissa in her affidavit sworn the same date. I agree that the evidence of Mr. Romita is in the form of oath-helping and should be given no weight in this proceeding.

[61] Morrissa’s own evidence with respect to her medical diagnosis is vague and unreliable. She is “not sure” if she has ever been diagnosed with depression. She relies on personal problems as part of her reason for not taking action after the Haberman Order but refuses to provide any particulars. The issues related to her step-siblings and her mother’s gravestone are offered without corroboration or any form or explanation as how those issues would render it impossible for Morrissa to have commenced a new claim within two years of the date of death or two years of October 5, 2014.

[62] I find, therefore, that Morrissa has not put her best foot forward with respect to any medical defence of incapacity or disability. As per Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, Morrissa has failed to demonstrate that she has medical evidence to explain her delay which could reasonably succeed at trial.

[63] There is no discoverability issue in this case which would serve to toll the limitation period. Morrissa was clearly aware of her claim as early as 2013 when she issued her first claim against Scott and Cynthia. If I am wrong with respect to any discoverability principle in relation to the Limitations Act, then the Trustee Act certainly provides a line in the sand for the commencement of the limitation period. In short, Morrissa would have two years from the date of death (December 23, 2012) to make her claim against the Estate. That limitation period expired on December 23, 2014, long before she commenced her January 2018 claim.

[64] With respect to the limitation period in the Trustee Act, s. 38(3) sets out as follows:

Limitation of actions

(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased. R.S.O. 1990, c. T.23, s. 38.

[65] As per Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, 154 O.R. (3d) 587, at paras. 17 (2) and (3), the principles related to s. 38(3) of the Trustee Act are clearly defined. It is an absolute limitation period to which the discoverability principles under the Limitation Period do not apply to toll the limitation period:

(2) Section 38(3) of the Trustee Act prescribes a "hard" or absolute limitation period triggered by a fixed and known event -- when the deceased dies -- and expires two years later: Levesque v. Crampton Estate, 2017 ONCA 455, 136 O.R. (3d) 161, at para. 51; Bikur Cholim Jewish Volunteer Services v. Penna Estate, 2009 ONCA 196, 94 O.R. (3d) 401, at para. 25.

(3) The discoverability principles under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B do not apply to toll the limitation period under s. 38(3) of the Trustee Act: Giroux Estate v. Trillium Health Centre (2005), 74 O.R. (3d) 341 (C.A.), at para. 33; Bikur Cholim, at para. 26; and Levesque, at para. 47. Although this can sometimes be harsh, since a claim under the Trustee Act can be time-barred even before it is discovered, this can be mitigated by common law rules, such as the doctrine of fraudulent concealment: Levesque, at para. 56; Bikur Cholim, at para. 25.

[66] Morrissa argues that the Trustee Act does not apply to this case on the grounds that equitable claims in land under the RPLA are subject to a 10-year limitation period. She relies on McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561. In that case, the Applicant sought a remedial constructive trust claim. The Applicant became aware of the claim in 2007 but did not bring her claim until 2012. The Respondent moved by way of summary judgment to dismiss the action as statute-barred. The Court found that a claim for unjust enrichment is a claim for a right in land and the limitation period in the RPLA would therefore apply.

[67] Subsequent cases such as Hartman Estate v. Hartfam Holdings Ltd. (2006), 205 O.A.C. 369 (C.A.), and Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623, 80 R.P.R. (5th) 173, confirm that remedies for a constructive or resulting trust are claims in respect of an interest in land.

[68] While I do not dispute the principles set out in the line of cases which confirm the nature of constructive and resulting trusts in relation to the limitation period in the RPLA, I find that the RPLA does not apply in this case.

[69] Rather, the limitation periods in both the Limitations Act and the Trustee Act apply as Morrissa’s claim is a contractual one arising out of an Agreement for profit sharing. It does not matter if the limitation period began two years after the date of death (December 23, 2014) or two years after the Haberman dismissal Order (October 5, 2016), the claim does not survive either limitation period.

Issue # 3 – Does Morrissa have an Equitable Claim in Land such that the RPLA Would Apply?

[70] Section 4 of the RPLA states as follows:

No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

[71] Notwithstanding the clear exclusion in section 6 of the Agreement that Morrissa does not have any legal, equitable or beneficial interest in the Property, Morrissa effectively asks the Court to read such an interest into the Agreement. Even if the Court accepts Morrissa’s position that she contributed $50,000 towards the purchase of the Property, that does not equate to her having an interest in the property. As per the principles in Kopf v. Hepting, 2015 BCSC 285, her contribution does not equate to an interest in the Property where such an interest has been specifically excluded and where she did not comply with the terms of the Agreement (see para. 147 of Kopf).

[72] Morrissa’s position is that her contributions of Land Transfer Tax and foregone commission create a beneficial interest arising from a constructive trust. In order to prove such an interest Morrissa must show that Cynthia and the Estate have been unjustly enriched or that Cynthia has breached an equitable duty which would prevent her from retaining the profit from the Property.

[73] Morrissa wishes to obtain her one-third share of the net profits of the Property and any increase in value in those profits due to market conditions. However, her contribution of commission has never been proven. If her only conceded contribution is $8,000, that is nominal compared to the contributions of Cynthia, the Estate and now Scott. Further Cynthia transferred the Property to Scott relying on no claim having been brought within two years of the dismissal of the 2013 claim. Cynthia and the Estate have no profits to share. Even if I am wrong and the Respondents have breached some equitable duty which would prevent them from retaining any profits from the Property, their contributions far outweigh those of Morrissa. As such there is no causal connection between Morrissa’s only proven contribution of $8,000 and the preservation, maintenance and improvement of the Property (see Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57, [2013] 3 S.C.R. 477).

[74] Alternatively, Morrissa argues that her contributions create a purchase money resulting trust because she advanced funds for the purchase but did not take legal title. There is a presumption that where a person who is unrelated to the purchaser advances funds for the purchase, a beneficial interest in the property is created. However, that presumption can be rebutted. Morrissa must show that she supplied all or part of the purchase price and that she acted throughout as a purchaser (see Nishi v. Rascal Tracking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 1). In order to determine whether she was acting as a purchaser, Nishi directs that it is the intention of the person advancing the contribution at the time of contribution that is determinative (see para. 2 of Nishi). In this case, I find that Morrissa advanced funds for two primary reasons; she needed a place to live (as per her own evidence) and she intended to profit share on the sale of the Property. That is borne out in the Agreement itself which precludes such an interest.

[75] In Karen Patterson, Roxanne Edwards, Rohan Barnes and Sedan Lewis v. Nadeen Patterson and The Estate of Barbara Patrick, 2018 ONSC 6884, 41 E.T.R. (4th) 175, four of the five children of the deceased brought a claim against their sister Nadeen. Nadeen and her mother jointly owned a home, the main asset of the Estate, of which Nadeen became the owner on death by right of survivorship. Nadeen’s siblings claimed that the home belonged to the Estate and that Nadeen had obtained her interest by way of resulting trust.

[76] Nadeen defended the claim on the grounds that she co-signed the mortgage and made contributions to the mortgage payments and utilities. The Court cited Nishi for the proposition that the relevant time to determine intention is at the time of acquisition of the subject property. The Court held that Nadeen’s contributions were in exchange for the opportunity for her and her daughters to live in a better living situation than they had before. As such, in Patterson, the Court found that no beneficial interest existed even where monthly contributions had been made towards expenses. In the case at bar, there is no evidence of such contributions. Even if Morrissa’s evidence is accepted, those contributions ended in 2008.

[77] Given the above, I do not find that Morrissa has provided sufficient evidence for a remedy in either constructive or resulting trust. Her contributions were either nominal or unproven and the Agreement specifically excludes Morrissa from claiming either a beneficial or equitable interest in the Property. As such, her claim does not come within the s. 4 of the RPLA and is therefore subject to the limitation periods in both the Limitations Act and the Trustee Act.

Issue #4 – Do the Doctrines of Unconscionability or Contra Proferentum Apply?

[78] Morrissa submits that the Agreement is unconscionable because it is an improvident bargain and because of the inequality of bargaining power between her and the deceased.

[79] I do not agree that there was any inequality of bargaining power in this case. As described above, Morrissa went to great lengths to describe her sophistication in real estate matters. In the within case she entered into an Agreement with her long-time friend and business partner, Stephen Stren, whom she trusted. Morrissa and the deceased had been involved in a number of business transactions over the years.

[80] While it is true the Agreement was signed the day before closing, Morrissa was not precluded from obtaining independent legal advice had she chosen to obtain it. That is, there was no evidence that she was pressured into signing the Agreement. It was a business transaction which is presumed to have been understood by both parties both on its face and in terms of its longer-term implications.

[81] In Uber Technologies Inc. v. Heller, 2020 SCC 16, 3 B.L.R. (6th) 1, the Court dealt with a class proceeding against Uber. All Uber drivers were required to sign a Terms of Service Agreement. The Agreement required that any disputes with Uber had to be resolved through mediation and arbitration in the Netherlands with an up-front administration fee of $14,500 USD. This amount was more than the representative plaintiff made in a year. The Supreme Court did not find the Agreement to be contrary to either the Employment Standards Act, 2000, S.O. 2000, c. 41, or under public policy. Rather, the Supreme Court required Uber to advance the administration fee to those who could not afford it and found that while the Arbitration Clause was unconscionable, it could be considered separately from the contract as a whole.

[82] Morrissa’s counsel interpreted this part of the Uber decision to mean that Morrissa could choose to excise from the Agreement those provisions she did not like (such as the exclusion of any beneficial or equitable interest in the Property) and keep those that she did (such as the profit-sharing part). I do not agree with this interpretation. In the Uber decision there can be no doubt that there was inequality of bargaining power which I have already found does not exist in this case. Further, the considerations in Uber in relation to the Arbitration Clause were fact specific and the Court found the Arbitration Clause to be a self-contained contract which was collateral to the main contract (see para. 96). In the case at bar, no such exceptions exist. The Agreement must be read as a whole.

[83] Morrissa’s argument with respect to contra proferentum assumes there is an ambiguity in the contract. The requirement to find an ambiguity before proceeding to apply the contra proferentum principles is well established. In Lien Trustee v. Toronto-Dominion Bank (1994), 17 O.R. (3d) 363 (C.A.), the Court of Appeal for Ontario writes as follows:

The approach taken by the trial judge, as stated at p. 23 of his reasons, is the general approach quoted above from Anson and from the McClelland & Stewart case. The problem with applying these principles is, first, that one must find an ambiguity in the contract before applying the rule, rather than after, as done by the trial judge; and second, there is no indication in the evidence that the Bank induced the Stolp companies to contract on the supposition that the agreement meant one thing, while hoping that the court would adopt a construction more favourable to it. In our view, the contra proferentem rule has no application in this case.

[84] I do not see that there is any ambiguity raised in the Agreement. It is very clear as to the parties’ rights and responsibilities. It is true that Morrissa’s actual contribution is not set out in the Agreement. It simply states that she has contributed funds towards the purchase but does not say how much. I do not view this as invoking any form of contra proferentum interpretation of the Agreement against the Estate. It is well known that her contribution was either $8,000 or $50,000. In any event, I have already found that the mere fact of a contribution of $8,000 or $50,000 was insufficient to give rise to any already excluded beneficial interest in the Property.

[85] Finally, Morrissa’s counsel filed a supplementary factum the evening before the motion was argued. He submitted that because Morrissa had already given her consideration prior to the signing of the Agreement, no fresh consideration was given. As such, the provisions of the Agreement that purport to deny Morrissa an equitable interest in the Property must be found to be void ab initio.

[86] I concede that I found Morrissa’s counsel’s argument on this point difficult to follow. The amounts contributed by Morrissa were conceded to be contributions towards the purchase of the Property. The consideration was the terms of the Agreement itself and most importantly the right to live in the Property on certain terms. Morrissa left the Property and did not comply with the required terms. I do not see that Morrissa’s alleged failure to provide “fresh” consideration as fatal to the Agreement. No such fresh consideration was required.

ORDERS AND COSTS

[87] Given all of the above, the Respondent’s motion for summary judgment is allowed. The Claimant’s claim is dismissed as statute-barred.

[88] Given the results of the motion, it is not necessary to deal with the request for a stay or security for costs.

Costs

[89] Cynthia had four lawyers during the course of this proceeding, Mr. Avrum Slovodnick, Ms. Margaret Rintoul from Blaneys, Mr. Lucas Lung from Lerners and Mr. Donald who argued the motion. Cynthia provided a Bill of Costs from all counsel. The costs sought from Mr. Lung’s retainer were $13,044.72 in partial indemnity costs and $19,567.08 in full indemnity costs. Cynthia provided an unattested Bill of Costs from Ms. Rintoul for $22,311.83. The Bill of Costs from Mr. Slovodnick sought full indemnity costs of $9,537.20, substantial indemnity costs of $8,297.36 and partial indemnity costs of $5,531.57. The costs sought from Mr. Donald’s retainer were $33,228.45 in partial indemnity costs, $49,433.22 in substantial indemnity costs and $54,928.75 in full indemnity costs.

[90] Mr. Donald submits that his client should receive full indemnity costs for the following reasons:

a. There were two full days of cross-examinations.

b. There were at least eight affidavits from Morrissa and her witnesses which required responses. Many were late filed. Morrissa’s latest factum was filed the night before the motion was argued.

c. The issues on the motion were quite discrete but Morrissa raised many corollary arguments. While Mr. Donald submitted many of the arguments were irrelevant, they all required a response.

[91] Mr. Jazayeri’s costs outline provided for full indemnity costs in the amount of $40,745 and partial indemnity costs in the amount of $28,226. He submitted that some of the affidavits were required because of the multiple adjournments requested by Cynthia. Cynthia caused substantial delays and her multiple changes of counsel resulted in a duplication of work.

[92] I asked that Mr. Jazayeri provide me with an amount which he thought was fair in terms of the costs his client should pay. He advised that he did not have instructions at that time. I invited him to provide his position on Caselines if he obtained such instructions. To date, I have seen nothing in Caselines with respect to Mr. Jazayeri’s position on what his client should pay by way of costs.

Analysis on Costs

[93] This was a very important motion for both parties. Either the Claimant would be permitted to pursue her claim under the 2006 Agreement, or she would not. After years of litigation which started in 2013, recommenced in 2018 and took five years to get to this summary judgment motion, a decision on the motion was critical from both sides.

[94] While the main legal issue with respect to whether the claim was statute-barred was straightforward, the entire matter was clouded with Morrissa’s many defences, all of which were dismissed and many of which were found to be completely without merit (such as her medical defence). Further, the animosity between the parties and the ever-enlarging defence mounted by Morrissa led to thousands of pages of material being filed.

[95] Nine affidavits were filed in Morrissa’s material. Cynthia filed four affidavits. She also filed three factums because she was required to respond to the medical note produced after examinations and a response to Morrissa’s factum which was not filed until February 2, 2023. Each party was examined for an entire day. The transcripts are rife with objections and personal attacks on the other party.

[96] This is not a case for either full or substantial indemnity costs. Both sides were responsible for delays at certain points and both side’s conduct prolonged the matter.

[97] I agree with Morrissa’s counsel that some duplication of fees was inevitable in relation to Cynthia’s change of counsel on three occasions.

[98] Morrissa’s counsel did not accept that his client should have to fully indemnify Cynthia for Mr. Lung’s fees which were at a much higher scale, Ms. Rintoul’s fees which were unattested or Mr. Slovodnick’s fees which he submitted related to the previous Claim in 2013. Morrissa’s counsel also submitted that his client was of modest means and that Mr. Donald’s hours billed were excessive.

[99] In the end, the most reasonable approach is to require Morrissa to pay what she would have expected Cynthia to pay her in the event she was successful, on a partial indemnity scale. A premium should be added to reflect that, as the moving party on a critical motion, Cynthia’s counsel had the greater burden of legal work. I therefore order Morrissa to pay the all-inclusive sum of $45,000 in costs to Cynthia. The costs are due and payable forthwith.

C. Gilmore, J. Date: March 6, 2023