COURT FILE NO.: CV-20-00005029-00ES DATE: 2023-06-26

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF VIOLET MANOUSHAG HOUGASSIAN, deceased

BETWEEN:

SOLINA (SOLINEE) BRADSHAW, personally and in her capacity as named Estate Trustee of the Estate of Violet Manoushag Hougassian, deceased Plaintiff

– and –

JACK HOUGASSIAN, SONA SHEA and JDJ MANAGEMENT INC. Defendants

Lionel Tupman and Devin McMurtry, for the Plaintiff

Jarvis K. Postnikoff, for the Defendants, Jack Hougassian and JDJ Management Inc. Sona Shea, acting in person

HEARD: January 23, 24, 25 and 26 and February 24, 2023

REASONS FOR JUDGMENT

A.A. SANFILIPPO J.

Overview

[1] Violet Manoushag Hougassian immigrated to Canada on May 23, 1966 at the age of thirty-two. She would work in a factory for some twenty-two years, while raising her three children, the Plaintiff, Solina Bradshaw, and the Defendants, Jack Hougassian and Sona Shea.

[2] In the 14-year period from 1966 to 1980, Violet and her husband, Harry Hougassian, purchased three properties in or around Waterloo Region while raising their young family. By 1980, Violet’s relationship with Harry had deteriorated, and the children knew that she was about to leave the marriage. On September 30, 1980, Violet and Jack, then 22 years old, entered into an Agreement of Purchase and Sale to purchase a modest semi-detached house known municipally as 323 Cyrus Street, Cambridge, Ontario (the “Property”). On the closing of this purchase in November 1980, Jack took title to the Property, alone.

[3] Violet moved into the Property, along with her children but without Harry, who she would divorce a year later, in 1981. Jack moved out of the Property when he married in 1985, as did Solina in about 1991, but Violet would live in the Property for about 37 years until she died on August 14, 2018.

[4] Violet left a Last Will and Testament that she executed on November 18, 2002 (the “Will”). After Violet’s death, Sona found the Will under one of Violet’s potted plants, soiled and stained. The Will appoints Solina as the Estate Trustee and Solina and Sona are the residual beneficiaries of Violet’s Estate. The parties all testified that Jack was not absent from Violet’s Will because of any disaffection with Jack, but rather because of Violet’s recognition that Jack was well-accomplished financially and his sisters were not.

[5] On her death, Violet had some personal belongings that Jack either donated or disposed of without his sisters’ involvement, and in disregard of Solina’s authority as Estate Trustee. Violet also left some jewelry that Solina and Sona divided with their accustomed acrimony. At the foundation of the parties’ dispute, and thereby the focus of this trial, was whether Violet’s Estate has a beneficial interest in the Property and, if so, to what extent.

[6] Solina submitted that Violet set out to purchase the Property, alone. Solina testified that when Violet discovered, in 2006, that she was not on title to the Property, Violet implored Jack to convey title to her. Jack, supported by Sona, submitted that Violet’s request for title to the Property was contrived and promoted by Solina to give some substance to her inheritance when Violet had nothing to give. Jack stated that the Property was always his alone and that Violet, and now her Estate, has no interest in the Property. Jack submitted, further, that if Violet’s Estate has a beneficial interest in the Property, the value of this interest must be set-off from amounts that he spent in improving the Property and for the expenses that he paid for his mother’s funeral. Last, Jack contended that this Application is statute barred.

[7] For the reasons that follow, I have determined that Solina established that Jack held title to the Property in purchase money resulting trust for Violet, and then the Estate, to a beneficial interest of 26% of the net realized property value. The Plaintiff shall obtain judgment for this beneficial entitlement, which I have found to total $115,900.44, and is granted judgment of $10,000.00 for the loss of personal property. This Application is dismissed as against Sona.

[8] For brevity and clarity, I will refer to the parties in these Reasons by their first names, respectfully.

I. PROCEDURAL BACKGROUND

[9] Solina initiated this proceeding, in her personal capacity and as Estate Trustee of Violet’s estate (the “Estate”) by Notice of Application issued on February 5, 2020 (the “February 2020 Application”). She claimed an Order to rectify the title to the Property and a declaration that Jack, and his company, JDJ Management Inc. (“JDJ Inc.”) hold title to the Property in trust for the Estate. Solina’s claim for a beneficial interest in the Property was based on resulting trust and, alternatively, on unjust enrichment with a proprietary remedy of constructive trust.

[10] By Notice of Application issued on October 13, 2020 in court file number CV-20-00649325-00ES (the “October 2020 Application”), Solina brought a second Application seeking relief identical to the February 2020 Application, but claimed additional remedies, including: (a) a declaration that Jack improperly diverted property belonging to the Estate to himself or to JDJ Inc.; (b) that Jack was an actual or de facto fiduciary of Violet and breached his duties as a fiduciary by not returning the Property to Violet; and (c) a declaration that Jack engaged in fraud by failing to transfer title of the Property to Violet, and fraudulently concealed that he did not add Violet’s name to the title to the Property.

[11] By Order Giving Directions issued December 9, 2020, Justice Conway ordered that the October 2020 Application be joined and consolidated with the February 2020 Application.[^1] By the time of that Order, Jack had sold the Property on the consent of the Plaintiff. On the parties’ agreement, Justice Conway ordered that the net sale proceeds, consisting of $486,858.39 (the “Net Sale Proceeds”), be held in trust and preserved until determination of the consolidated applications (collectively, the “Application”).[^2]

[12] On February 10, 2022, Justice Dietrich ordered that this proceeding be converted from an Application to an Action (the “February 2022 Order”). The Trial Record filed by the parties consisted of the records filed in the Application, and any orders affecting the trial, consonant with Rule 48.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The parties agreed that the affidavit evidence filed in the Trial Records would be used as the parties’ direct examination evidence, as supplemented by additional questioning that the parties choose to conduct, including to frame the witnesses’ testimony, tender the affidavit evidence and present the witnesses’ evidence.[^3]

II. ISSUES

[13] The February 2022 Order set out 14 issues to be tried. The 13 issues listed for the Plaintiff all emanated from the core position that the claim that the Property belonged to the Estate, in whole or alternatively in part. The single issue listed by Jack and JDJ Inc. was that the claims advanced by Solina were statute barred.

[14] The overarching issue presented in this trial is the entitlement to the value of the Property, now monetized in the Net Sale Proceeds ($486,858.39). Solina affirmed, and Jack denied, that the Net Sale Proceeds belong, in their entirety, to the Estate. In closing submissions, the parties refined the Plaintiff’s issues requiring determination to the following:

1. Did Jack hold title to the Property, and now the Net Sale Proceeds, subject to a purchase money resulting trust for the benefit of the Estate, or alternatively constructive trust, in whole or in part?

2. Is Jack liable to the Estate in unjust enrichment, and thereby required to pay the Net Sale Proceeds to the Estate, in whole or in part?

3. Did Jack engage in fraud in: (i) concealing that he held title to the Property, alone; (ii) concealing that he did not add Violet as a registered owner of the Property; (iii) failing to transfer title of the Property to Violet; and (iv) diverting the Property to himself and his company, JDJ Inc.?

4. Was Jack a fiduciary of Violet and, if so, did he breach his fiduciary duty by failing to return title to the Property to Violet? Did Jack exert undue influence on Violet?

5. Is Jack liable for the value of Violet’s personal property, situated in the Property at the time of Violet’s death?

[15] Jack and JDJ Inc. raised the following issues for determination:

1. Are the Plaintiff’s claims statute barred by expiry of the applicable limitation period?

2. If Jack is found liable to the Plaintiff regarding the Property, what is the monetary amount of the Net Sale Proceeds that he and JDJ Inc. are liable to pay the Estate considering that they paid renovation costs to prepare the Property for sale?

3. Is Jack entitled to set-off from the Net Sale Proceeds for the expenses that Jack paid for his mother’s funeral?

[16] Solina objected to the set-off claims for renovation costs and funeral expenses on the basis that they were not pleaded or specifically listed for determination at trial and, in the case of the funeral expenses, also because Jack agreed to pay this expense.

III. FACTUAL BACKGROUND

[17] I begin by setting out the factual background.

A. The Parties

[18] Violet was born on September 25, 1934. Upon her arrival in Canada in 1966, Violet settled in Cambridge, Ontario, along with her husband, Harry. Violet became the first female machine operator at a food manufacturing plant, a position that she would hold for some 22 years. In the period from 1966 to 1980, Violet and her husband had, through hard work, purchased three properties in or around Waterloo Region. No party disputed that Violet was an intelligent, astute person, who coped with English as a second language but who was, in the 1980s, confident and capable in confronting life’s challenges.

[19] In 1980, the family lived in a house located at 79 Henry Street, Cambridge, Ontario (the “Henry Street Property”). At that time, Jack was a 22-year-old University student, and Solina was 18 years old. Sona was the youngest child. Harry was barely spoken of at trial. Violet would leave him in 1980, exiting the family home and the marriage without a word to Harry while he was at work.

A. The Purchase of the Property

[20] On September 30, 1980, Violet and Jack executed an Agreement of Purchase and Sale (the “APS”) to purchase the Property.[^4] The $38,500.00 purchase price of the Property was supported by a deposit of $100.00 and was conditional on Violet and Jack obtaining mortgage financing of “approximately $27,000.00”. There was no dispute that both Violet and Jack executed the APS as co-purchasers.

[21] The Transfer Deed for the Property, dated November 17, 1980, shows that the vendor transferred title to the Property, not to both mother and son, but rather only to Jack.[^5] Jack executed the Land Transfer Tax Affidavit on an illegible date in November 1980 before Calvin G. Johnson, the real estate conveyancing lawyer who acted in the Property transfer. The Land Transfer Tax Affidavit shows that the purchase price paid on closing was $38,500.00 and states that Jack was “a person in trust for whom the land conveyed in the above-described conveyance is being conveyed.” I heard no dispute that this description is inapplicable to this conveyance.[^6]

[22] On November 24, 1980, Jack granted a mortgage to Victoria and Grey Trust Company (“Victoria and Gray”) in the amount of $20,500.00, at the interest rate of 13.75%, with monthly payments of $237.00, repayable in full in one year (the “V/G Mortgage”). Violet signed the V/G Mortgage as guarantor. This established that the amount paid on the purchase of the Property, referred to by the parties as the “Down Payment”, was $18,000.00 and that the balance due on closing, $20,500.00, was financed.

[23] There was no dispute that Violet advanced at least $10,000.00 of the Down Payment.

[24] The conveyancing lawyer, Mr. Johnson, does not have any written records of the purchase of the Property, and believes that the file was destroyed as part of normal file housekeeping due to its age. There was much debate at trial regarding whether Mr. Johnson met with Violet and Jack together or at different times. However, Mr. Johnson’s Affidavit of Subscribing Witness showed that Mr. Johnson was present and witnessed the execution of the V/G Mortgage by both Violet and Jack on Thursday, November 27, 1980.

[25] Jack’s acquisition of the Property closed on Monday, December 1, 1980, through registration that day of the Transfer Deed and the V/G Mortgage.

B. Use of the Cyrus Street Property

[26] Sometime in 1981, Violet fled the Henry Street Property, and Harry, and moved into the Property, together with Solina, then an 18-year-old student, and Jack, then a 22-year-old full-time university student. Violet would divorce Harry in 1981, who would die in January 1996.

[27] Violet paid the monthly expense for the first year of the V/G Mortgage, and the Property’s utility expenses. In 1985, Jack married and moved out of the Property. On July 31, 1985, Jack bought a house in Kitchener for $115,000.00, supported by a $60,000.00 mortgage to the Toronto Dominion Bank. In or around 1992, Solina married and moved out of the Property. For the 37 years from 1981 to her death in 2018, Violet lived in the Property. For 26 years, from 1992 to 2018, Violet was the only occupant of the Property.

C. Violet’s Circumstances

[28] In 1988, at the age of 54, Violet had a fall at work and injured her back. Violet received disability payments as she was no longer able to work. She would never be employed again. Jack had become financially well-accomplished and supported Violet when the need arose. Jack showed that he established a joint banking account into which he would deposit money for Violet’s use. This stopped when, according to Jack, Violet became addicted to gambling and was squandering her money and wasting the money Jack provided to her.

[29] Violet executed her Last Will and Testament on November 18, 2002 (the “Will”). Violet appointed Solina as the estate trustee in the Will, with Sona as the alternate. Solina and Sona were named as the residual beneficiaries in the Will. The Will does not make any reference to the Property. Sona deposed that she found the Will beneath a planter, and that it was “clearly not something that my mother was trying to protect.” No one challenged the Will, which was admitted to probate by Order Giving Directions rendered on December 9, 2020.[^7]

[30] On March 30, 2006, Violet assigned into bankruptcy.[^8] The bankruptcy records showed that Violet declared total liabilities of $18,341.00 and total assets of $17,650.00. Violet did not declare the Property as an asset in her bankruptcy filing. The evidence at trial did not establish why Violet assigned into bankruptcy at the age of 71 with a declared debt of $691.00 and a wealthy son with a history of providing her with financial support. Jack blamed Solina for “talking her” into bankruptcy, while Solina contended that Jack “instigated and forced my Mother into bankruptcy as a form of punishment or revenge”. Sona deposed that Violet “developed a gambling problem in which she acquired a heavy gambling debt” and that Violet “came up with a plan to get rid of her debt, which was to file for bankruptcy”.

[31] Violet’s health began to fail in 2014. In January 2015, Violet suffered a ruptured aortic aneurysm and underwent emergency open heart surgery, necessitating six weeks in hospital. In the spring of 2017, Violet was diagnosed with terminal cancer and was projected to live only a matter of months. Violet was hospitalized from May 2018 to her death in August 2018.

[32] Solina alleged that Jack made a promise to Violet, in the period approaching her death, that Jack would convey the Property to Violet. Jack admitted that Violet, near the time of her death, implored him to “look after his sisters”, and Jack conceded that he promised Violet that he would “take care of them”.[^9] I do not accept Solina’s evidence that Jack said that he would convey the Property to Violet. Later, I will explain why I had concerns about the credibility and reliability of Solina’s evidence. Even if I had accepted Solina’s evidence on this point, I would nonetheless have declined to accept the Plaintiff’s submission that this constitutes a legally binding agreement by Jack to convey the Property to Violet, and now to her Estate.

D. The Parties’ Toxic Relationship

[33] The relationship between Jack, Solina and Sona has been marred by conflict, played out publicly, spanning some two decades. Jack testified that he provided money and a rental car to an ungrateful Solina to assist her through her divorce and bankruptcy. Solina deposed that Jack falsely included Solina, and indeed Violet, on his company’s payroll when they were not employed by him and provided Solina with use of a company car.

[34] Solina testified that Jack stopped providing any financial support to Violet and Solina in 2004, when the Canada Revenue Agency (“CRA”) initiated a tax enforcement proceeding against Jack. Solina deposed that Jack has not spoken to her since, believing that she had a role in reporting Jack to the CRA and in the provision of evidence harmful to Jack’s defence, and that Jack now “holds a grudge and a vendetta” towards her.

[35] Jack and Sona’s relationship became strained in 2016 by reason of a proceeding before the Ontario Labour Relations Board (“OLRB”), in which Jack, as employer, was pitted against Sona, at that time an employee of his company, Tech-Hi Consultants Ltd..[^10] Sona testified that Jack had his employees swear false evidence about her to avoid his company having to pay Sona severance. In the OLRB proceeding, Solina filed a letter in support of Sona’s claim for a severance payment, stating to the OLRB that Jack tricked their elderly mother by not including Violet on title to the Property.

[36] Jack and Solina in particular, but also to a lesser extent Sona, who at times has been allied with Jack and at other times in litigation with his company, have made unworthy comments towards each other in their written communications and in their evidence. Besides being destructive to their relationships, this conduct did not flatter any of them.

IV. ANALYSIS – PURCHASE MONEY RESULTING TRUST

[37] The main basis for the Estate’s claim to the Net Sale Proceeds, in total or alternatively in part, is that the Property was subject to a purchase money resulting trust in favour of Violet.

A. Applicable Legal Principles – Purchase Money Resulting Trust

[38] As the Supreme Court has explained, “the underlying notion of the resulting trust is that it is imposed ‘to return property to the person who gave it and is entitled to it beneficially, from someone else who has title to it. Thus, the beneficial interest ‘results’ (jumps back) to the true owner’”[^11]

[39] A resulting trust arises where the property is in one party’s name, but impressed with an obligation to return the property either because the holder is a fiduciary or because the transferee gave no value for the property.[^12] To determine whether the transfer of property was made for no value, the actual intention of the transferor at the time of the transfer is the governing consideration.[^13] Where a gratuitous transfer is made, there is a rebuttable presumption that the transferor intended to create a trust rather than to make a gift, on the principle that “equity presumes bargains and not gifts”.[^14] The onus is on the person receiving the transfer to demonstrate that a gift was intended, failing which the transferee holds the property in trust for the transferor.[^15]

[40] The Supreme Court explained that “[t]he 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.”[^16] A purchase money resulting trust presumptively arises when a transferor advances funds to contribute to the purchase price of a property, but legal title to that property is taken in the name of another, unrelated person.[^17] Despite the apparent limitation that the presumption of resulting trust arises between “unrelated” persons, the Courts have applied the presumption where funds are advanced between a parent and an adult child, particularly in matrimonial claims.[^18] The Court of Appeal justified this with reference to Pecore, where the Supreme Court abolished the presumption of advancement between parents and adult children and put in place the presumption of resulting trust:

Except where title is taken in the name of a minor child, where property is acquired with one person’s money and title is put in the name of another, there is a presumption of resulting trust. While some authorities refer to a presumption of resulting trust arising when a gratuitous transfer is made between unrelated persons, the presumption of advancement between spouses was abolished by statute in Ontario (see Family Law Act, R.S.O. 1990, c. F.3, s. 14) and between parents and adult children by the Supreme Court in Pecore: see para. 36.[^19]

[41] The Plaintiff submitted that Jack’s legal ownership of the Property is subject to a purchase money resulting trust in favour of Violet, and now her Estate. The basis of this position is Solina’s evidence that Violet, not Jack, paid for the Property. I will now assess the evidence pertaining to this issue.

B. The Evidence Regarding the Property

[42] The acquisition of the Property required a total payment of $38,500.00. I saw no dispute that this purchase price was satisfied by: (a) the Down Payment, in the amount of $18,000; and, (b) the V/G Mortgage, in the amount of $20,500. There was no dispute that these amounts were paid, and there was no dispute that Violet advanced the amount of at least $10,000.00. The dispute between Solina and Jack focused on the determination of which party or parties paid the Down Payment, and which party or parties paid the V/G Mortgage. Sona conceded that she does not know any of the details regarding the purchase of the Property.

(i) Jack’s Evidence Regarding the Property

[43] Jack testified that by 1980, although 22 years old and enrolled full-time in university, he had saved a considerable amount of money by working after school and during the summer and set out to purchase a property on his own. Jack stated, and it was not disputed, that his parents were “experiencing severe difficulties in their marriage and it was a matter of time before they separated.” Jack stated that he looked at a number of properties by himself and decided to purchase the Property. Jack testified that his mother was named in the Agreement of Purchase and Sale as a co-purchaser only so that it would be easier for him to qualify for a mortgage as a first-time home purchaser.

[44] Jack conceded that Violet advanced $10,000.00 of the Down Payment but stated that she did so as a loan to him, not as a contribution to the joint purchase of the Property. Jack deposed that Violet “suggested that she had some money saved up and that she could loan it to me in order to conserve my savings and to lower the monthly mortgage costs.” At trial, Jack testified, as well, that Violet thought that it would be beneficial for him to preserve his money so that he would have it available in pursuing his objective of setting up his own business.

[45] Jack testified that he paid the further $8,000.00 required to complete the Down Payment and that he, alone, entered into the V/G Mortgage. Jack testified that his mother acted as a guarantor to facilitate obtaining the mortgage as he was a student with limited credit history.

[46] Jack stated that he repaid his mother the alleged $10,000.00 loan within one year, and that he paid the V/G Mortgage, which would later be discharged from title. Jack testified that Violet signed the V/G Mortgage as guarantor because Jack had no established credit history and only part-time income as he was a full-time student.

[47] Jack testified that his mother recommended that he retain Mr. Calvin Johnson to act in the real estate conveyance as she was familiar with him. Jack stated that he attended at Mr. Johnson’s office to sign the closing documents together with Violet and that they were both aware that title was being taken only by Jack and that Violet signed the V/G Mortgage only as guarantor.

[48] Jack conceded that his mother paid the monthly mortgage payments of $237.00 for the first year of the V/G Mortgage, and that she paid the monthly utility bills. According to Jack, this was in consideration of his mother living in the Property and thereby contributing to its carrying costs. Jack stated that when he moved out of the Property in 1985, he continued to pay the property taxes because he wanted to support his mother financially and provide her with a comfortable home.

[49] Jack testified that he paid off the V/G Mortgage in full. He swore that after the first year that she resided in the Property, Violet did not pay any money toward the V/G Mortgage, at all.

[50] Jack admitted that in 2000, Violet asked him, for the first time, whether he “would put her name on the house deed.” Jack deposed that he denied his mother’s request because he had paid for the house, and because he had supported Violet financially for many years. Jack deposed that he also told Violet that “the Property was my first investment that I paid for myself and that I would not share it with my sisters.” Jack attributed his mother’s request to what he considered to be constant cajoling by Solina to lobby Violet to demand that Jack transfer the Property to Violet to enhance Solina’s inheritance.

(ii) Solina’s Evidence Regarding the Property

[51] Solina tendered affidavit evidence as part of her examination in chief at trial,[^20] and amplified this in testimony at trial. Solina provided direct evidence in relation to the purchase of the Property in 1980 but also, in at least 34 instances, deposed about something that Violet “told her”, “advised her” or spoke with her about.[^21] Jack objected to all this evidence, and more, on the basis that the evidence was inadmissible hearsay as it constituted out of court statements by the deceased declarant, Violet, tendered for the truth of its content.[^22]

[52] I will first explain Solina’s direct evidence in relation to the purchase of the Property and will then address the evidence tendered by Solina that was subject to objection based on hearsay.

a. Solina’s Direct Evidence Regarding the Property

[53] Solina recalled that in 1980 Jack did not have enough disposable income from his part-time job as a bartender or from his summer jobs to buy a house. She testified that her parents did not pay for Jack’s university tuition or expenses, including his car, and that money earned by Jack was applied to these expenses and not retained in savings for the purchase of a house.

[54] Solina testified that in 1980 Violet was working full-time at her factory job and had a 50% interest in the matrimonial home owned jointly with Harry. Solina stated that she was a student at that time and recalled accompanying Violet to view properties. Solina swore that she had a specific recollection of viewing the Property with Violet, and that Jack was not present.

[55] Solina conceded that she was not present when the Agreement of Purchase and Sale was signed by Violet and Jack. Solina has no direct knowledge of their discussions. Solina testified at trial that Violet paid the entire Down Payment of $18,000.00 but deposed in her affidavit that Violet paid $10,000.00 in down payment.[^23] Solina denied that Violet loaned any money to Jack and testified that she is not aware of any loan agreement by which this payment would constitute a loan from Violet to Jack. Solina testified that she moved into the Property with Violet and Jack in 1981, at the time of her mother’s separation from Harry.

[56] Solina explained, through tendering of the Parcel Registry, that Harry sold the Henry Street Property on July 1, 1981, for $49,000.00, and stated that her mother received one-half of the net sale proceeds.[^24] Solina deposed that in 1991, Violet applied a $30,000.00 Investment Certificate to payment of the V/G Mortgage, which she then caused to be discharged in August 1992. Solina testified that Jack is lying when he deposed that he paid the V/G Mortgage.

b. Solina’s Hearsay Evidence Regarding the Property

[57] Solina tendered the following statements by Violet for the truth of their contents regarding the purchase and ownership of the Property:

(a) Violet told Solina that she had saved $10,000.00 in a secret bank account because she was planning to leave Harry.

(b) Violet told Solina that the $10,000.00 would be used as a down payment in the purchase of the Property, and not as a loan to Jack.

(c) Violet advised Solina that she only allowed Jack’s name to be included on the Agreement of Purchase and Sale for the Property to avoid any interference from Harry.

(d) Violet told Solina that she assumed that the title of the Property would be in her name.

(e) Violet advised Solina that the V/G Mortgage was registered under Jack’s name alone because “she was precluded from having another mortgage while the one for the matrimonial home was still under her name.”

(f) Violet told Solina that “Jack stole her house” because she understood that she would be a registered owner of the Property.

(g) Violet told Solina that she asked Jack “numerous times to put her name back on title” and that Jack agreed to honour Violet’s request, made after Violet’s diagnosis of terminal cancer, to put Violet “back on title to the Property and/or sell it and share the proceeds” with Solina and Sona.

[58] This evidence is relevant to the purchase and ownership of the Property. The Supreme Court has instructed that “[e]vidence that is relevant to an issue at trial is admissible, as long as it is not subject to an exclusionary rule and the trial judge does not exercise their discretion to exclude it.”[^25] This evidence is relevant because it tends to increase or decrease the probability of a fact at issue: in this case, the payment and ownership of the Property.[^26]

[59] While this is relevant evidence, and thereby generally admissible, hearsay evidence is presumptively inadmissible.[^27] “Hearsay is an out-of-court statement tendered for the truth of its contents.”[^28] This evidence by Solina constitutes hearsay. It is therefore presumptively inadmissible because in the absence of the declarant, Violet, there is no ability for the Defendants to contemporaneously cross-examine the declarant, making it difficult to assess the truth of the statements.[^29] As the Supreme Court has explained, “hearsay can threaten the integrity of the trial’s truth-seeking process and trial fairness” because the “truth-seeking process of a trial is predicated on the presentation of evidence in court.”[^30]

[60] Hearsay may be admitted into evidence if it comes within certain categorical exceptions which were established in recognition that some hearsay evidence “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding.”[^31] Apart from the categorical exceptions, the Supreme Court explained that hearsay can exceptionally be admitted into evidence under the principled exception when the tendering party establishes, on a voir dire, that the twin criteria of necessity and reliability are established on a balance of probabilities.[^32] The starting presumption in consideration of the principled exception is that the hearsay is inadmissible, and the analysis of necessity and reliability must be conducted in full.[^33] Even when the trial judge, acting as an evidentiary gatekeeper for the purpose of determination of threshold admissibility, is satisfied that the hearsay evidence is necessary and reliable, the trial judge has the discretion to exclude the hearsay evidence if its prejudicial effect outweighs its probative value.[^34]

[61] Here, Solina submitted that her hearsay evidence on the purchase and ownership of the Property, and indeed on other issues that I will explain later, should be admitted under the principled exception. The first requirement for threshold admissibility, necessity, is met because the declarant of the out of court statement, Violet, is dead. Courts have held that death of the declarant is sufficient to prove the necessity at common law for the purpose of an exception to the hearsay rule.[^35]

[62] This then leaves the requirement of threshold reliability, which is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.”[^36] Threshold reliability can be established by the tendering party proving: (i) that there are adequate substitutes for testing the truth and accuracy of the out of court statement, referred to as “procedural reliability”; or (ii) that there are circumstantial or evidentiary guarantees that the statement is inherently trustworthy, referred to as “substantive reliability”; or (iii) a combination of both.[^37] Procedural reliability can be established through video recording of the statement, the presence of an oath, and a warning about the consequences of lying.[^38] Substantive reliability calls for assessment of the circumstances in which the statement was made and whether there is evidence that corroborates or conflicts with the hearsay statement.[^39]

[63] Here, the Defendants conceded that the hearsay evidence satisfied the requirement of threshold reliability, and thereby allowing for admissibility, subject to the determination of ultimate reliability and, if established, the weight to be attributed to the evidence. In my view, the hearsay evidence tendered by Solina did not establish procedural reliability, even for the purpose of threshold admissibility. There was no recording or process pertaining to the declarant’s statements that would assist in determining the reliability of the statements. However, I accepted the parties’ agreement that the hearsay statements met the requirement of substantive reliability sufficient to allow for threshold admissibility. This was based on the potential for corroboration of this evidence through the documentary evidence, including the APS and the V/G Mortgage, and the anticipated testimony of Solina’s family members, including her uncles and aunt.

[64] On the agreement of the Defendants, and in the exercise of my discretion, I admitted the hearsay evidence tendered by Solina of out of court statements said to have been made by Violet, subject to determination of ultimate reliability and weight, which I will address later.

(iii) Other Witness Testimony Regarding the Property

[65] The other sources of evidence regarding the Property purchase and ownership was tendered from Violet’s siblings, and from the accountant who prepared Violet’s tax returns.

a. Violet’s Siblings’ Evidence

[66] Janik (Jean) Hadjian and Souren Hadjian are Violet’s brothers. Lousin Hadjian is Violet’s sister. They are elderly. They reside in Montreal and would call Violet and, on occasion, travel to Cambridge to visit with her. They testified to what Violet said to them at indeterminate times in their telephone calls and visits. To the extent that this evidence was tendered as proof of the truth of statements made by Violet – and it was unclear whether this was the purpose of this evidence – the Defendants did not object to its threshold admissibility.

[67] Janik Hadjian testified that Violet told him, approximately 10 years ago, that she realized that her name was not on title to the Property, that it was owned entirely by Jack and that Jack “had somehow removed her name without her knowledge or consent”. Janik Hadjian stated that Violet told him, in the time before she was hospitalized, that she had paid the mortgage that had been registered against title to the Property. Janik Hadjian said that Violet told him that she asked Jack to give one half of the Property to his sisters.

[68] Souren Hadjian testified that Violet told him over many phone calls that she learned at some undefined point in time that she was not a registered owner of the Property and said that “Jack had somehow removed her name without her knowledge and consent.” Lousin Hadjian testified that Violet told her that she paid the property taxes for the Property but did not have an ownership interest. Lousin had no evidence about the purchase of the Property.

b. Violet’s Tax Returns

[69] Kevin Scott Kuppers is a chartered professional accountant who prepared personal tax returns for Jack, his spouse Sandy Hougassian, and their children and their spouses, as well as corporate tax returns for Jack’s company, TechHi Consultant Inc. Mr. Kuppers has been Jack’s accountant for about ten years. Jack asked Mr. Kuppers to prepare Violet’s tax returns for the years 2014-2017, and he did so.

[70] Mr. Kuppers testified that he never met Violet, never spoke with her or communicated with her by email. Mr. Kuppers would email Violet’s tax returns to Jack and Sandy’s email address and would provide paper copies of the returns to Jack or Sandy as part of the collection of tax returns that he would prepare for them each year. Mr. Kuppers would electronically file Violet’s tax return based on an efiling authorization. In some instances, Sandy would sign tax returns on behalf of Violet.

[71] In the tax returns filed for the years 2014 to 2017, Violet claimed an “Ontario Senior Homeowners’ Property Tax Grant” (the “OSHPT Grant”). This is a Grant of $500.00 that helps to offset property taxes for seniors who own their home and who have low to moderate incomes. The Plaintiff tendered this as proof that Jack recognized that the Property was owned by Violet, considering that Jack arranged for the preparation of Violet’s tax returns.

[72] Mr. Kuppers testified that no one told him that Violet owned the Property. Indeed, he did not know who owned the Property. Rather, he just saw that Violet’s address was the Property and, without investigation of the registered ownership on title, prepared a tax return by which Violet applied for, and received, the OSHPT Grant. Mr. Kuppers conceded that if Jack is the registered owner of the Property, Violet’s application for this Grant was an error as only the property owner is eligible for the OSHPT Grant.

C. Is Jack’s Legal Ownership of the Property Subject to a Resulting Trust in favour of the Estate?

[73] To determine whether the Property is subject to a purchase money resulting trust, I will determine the following:

(a) Does the $10,000.00 advanced by Violet constitute a loan to Jack?

(b) Did Violet pay the further $8,000.00 required for the Down Payment, or was this paid by Jack?

(c) Did Violet pay the V/G Mortgage or did Jack?

[74] In considering these issues, it is important to recall the admitted facts. There is no dispute that Violet advanced $10,000.00 toward the $38,500.00 needed to purchase the Property. No party alleges that Violet advanced the $10,000.00 as a gift to Jack. All parties agree that the purchase of the Property was supported by the V/G Mortgage in which Jack was the only mortgagor and that the V/G Mortgage was repaid and discharged.

(a) Was the $10,000.00 a Loan?

(i) The Onus

[75] Violet’s advance of $10,000.00 is not a gratuitous transfer if it is a loan. If it is not a gratuitous transfer, the presumption of resulting trust does not arise.[^40] This raises the question of which party bears the onus of establishing that the $10,000.00 is a loan: the transferor or the transferee.

[76] British Columbia courts have held that the onus is initially on the transferor to show that the advance was a gratuitous transfer and not a loan before the presumption of resulting trust can arise.[^41] The Alberta Court of Appeal reached a different conclusion and, on the basis of Nishi, held that the transferor needs only to show that they made a contribution to the purchase price to activate the presumption of resulting trust, and that the characterization of the contribution as a loan or a gratuitous transfer then becomes relevant.[^42] The presumption of resulting trust would be rebutted where the transferee can establish a loan.[^43]

[77] While I am not aware of the consideration of this specific issue at the appellate level in Ontario, the Ontario Court of Appeal has affirmed that in matrimonial claims, the transferor parents’ contribution to the purchase of the matrimonial home gives rise to the presumption of a resulting trust. From there, the court must weigh the evidence to determine whether the transferor’s intention was to make a gift or a loan.[^44] This follows from the Supreme Court’s pronouncements in Nishi, Pecore, and Andrade. Here, requiring Solina to disprove that the $10,000.00 was a loan would be contrary to the principles stated in these cases.

[78] Justice M. Doi of the Ontario Superior Court of Justice recently held, relying on the Alberta Court of Appeal decision in Singh and the Supreme Court decision in Pecore, that the presumption of resulting trust arises once a transferor shows that they made a monetary contribution to the purchase price of the property, without any additional requirement to prove that they acted in the character of a purchaser.[^45] I agree.

[79] Violet’s admitted advance of $10,000.00 to the Down Payment activated the presumption of resulting trust. Jack conceded that this was not a gift and Jack bears the burden of rebutting the presumption by proving, on a balance of probabilities, that the $10,000.00 was a loan.

(ii) Jack’s evidence of a loan must be corroborated

[80] Section 13 of the Evidence Act, R.S.O. 1990, c. 23, provides as follows:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

[81] The Ontario Court of Appeal has held that the common law requires corroborating evidence to rebut the presumption of resulting trust, and that when the transferor is deceased, corroborative evidence is required under s. 13 of the Evidence Act.[^46] While many cases applying s. 13 to the resulting trust analysis involve attempts to rebut the presumption by way of proving an intention to gift, I see no reason why the corroboration requirement would not apply where the party seeks to rebut the presumption by proving the contribution was advanced as a loan.[^47]

(iii) Did Jack Establish that Violet’s Contribution was a Loan?

[82] To rebut the presumption of resulting trust, the onus is on Jack, as the transferee to lead evidence demonstrating, on a balance of probabilities, that Violet intended the contribution as a loan at the time of the transfer.[^48] An intention not to hold the beneficial interest in the property is the legal equivalent of an intention to make a loan just as it is the legal equivalent of an intention to make a gift.[^49]

[83] Jack relies on his testimony that, although he had enough money to purchase the Property on his own, he acceded to his mother’s recommendation that he preserve his money for other purposes and take a loan from her in the amount of $10,000.00. I do not accept this evidence, for two reasons. First, Jack’s evidence that Violet’s $10,000.00 contribution to the Down Payment was a loan is not corroborated by any evidence. Jack did not produce a loan agreement, a promissory note, a memorandum, a diary entry or any document in support of his evidence of a loan. Jack’s evidence of a loan was not corroborated by any other witness testimony. Jack did not produce any evidence of repayment – even in the form of banking records. The only evidence of a loan was Jack’s word, alone.

[84] The Court of Appeal has instructed that “[t]he corroborating evidence can be direct or circumstantial, and it can consist of a single piece of evidence or several pieces considered cumulatively.”[^50] Jack adduced none on the issue of whether Violet’s advance of $10,000.00 was as a loan.

[85] Second, I had concerns about the credibility and plausibility of Jack’s evidence on certain points. This was one such instance. Jack’s evidence on the existence of a loan was not plausible. In 1980, Violet was a 46-year-old with Jack and two teen-aged daughters who was desperate to escape her marriage. She was a factory worker on a fixed salary with limited potential to earn more. All agreed that Violet had managed to save about $10,000.00 in a bank account hidden from Harry to start a new life. From this, I accept that Violet was focused on using the $10,000.00 to purchase a home away from Harry. I accept that Violet was knowledgeable on home acquisition by reason of the three homes that she had by then acquired. I cannot accept that paramount in Violet’s planning at that moment was to loan money to her 22-year-old son who, by his evidence, had already amassed tens of thousands of dollars through part-time and summer employment. On Jack’s evidence, in 1980 Violet had limited money, limited prospects and the overwhelming need to become independent while Jack had enough money to purchase the Property outright, yet Violet decided to loan all her money to Jack in furtherance of the completion of an Agreement of Purchase and Sale that they had entered jointly. I do not accept this evidence because it is not credible or plausible.

[86] I similarly do not accept as credible or plausible Jack’s evidence that he was advised by deceased real estate agent, Don Dyer, that the APS should be executed by Violet to make it easier for Jack to qualify for a mortgage. This could have been achieved by Violet’s guarantee of Jack’s mortgage, which was done.

[87] The Supreme Court instructed that “credibility must always be the product of the judge or jury’s view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter”.[^51] In considering the plausibility of witness testimony, the British Columbia Court of Appeal explained that: “In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”[^52] To be credible, a witness’ evidence must be internally consistent, logical or plausible.[^53] Jack’s evidence on the issue of a loan did not satisfy these criteria.

[88] On these reasons, I conclude that Jack did not establish that Violet made a loan to him of $10,000.00.

[89] This conclusion is reinforced by my finding that Violet advanced the $10,000.00 in furtherance of her objective to have an interest in the Property. The APS shows that Violet intended to purchase the Property as a co-purchaser. This corroborates the substantive reliability of the testimony of Violet’s brothers, Janik and Souren, that Violet believed, throughout, that she had an interest in the Property. Although hearsay, I have assessed whether, and to what degree these statements should be believed and relied upon.[^54] This evidence is reliable not only because it is corroborated by the APS and the undisputed evidence of Violet’s circumstances at the time of the purchase of the Property, but also because it is corroborated by Jack in his testimony that Violet asked him, in or about 2000, to take steps to register her as an owner of the Property. Although Solina’s evidence also supports this finding, I do not rely on Solina’s evidence, for reasons that I will shortly explain and I do not rely on the Plaintiff’s submission that Violet’s application, and receipt, of the OSHPT Grant establishes that Jack acknowledged that the Property belonged to Violet. I accept Mr. Kuppers’ evidence as truthful and sincere that the application for this Grant was made without any investigation, much less determination or admission by any party of the ownership of the Property.

(iv) Conclusion – Violet’s Advance of $10,000 was Not a Loan

[90] Based on these reasons, I conclude that Jack did not rebut the presumption of resulting trust arising from the $10,000.00 Violet contributed to the purchase of the Property for $38,500.00. Based on this finding, Jack held the Property in resulting trust for Violet, and now her Estate, in proportion to Violet’s contribution.[^55] Subject to my determination of the remaining issues, the Estate’s beneficial interest in the Property is 25.974% (10,000/38,500), which I have rounded to 26%.

(b) Did Violet Pay the Entirety of the Down Payment?

[91] Solina testified that Violet paid the remainder of the Down Payment, in the amount of $8,000.00, disputing Jack’s testimony that he paid the remainder of the Down Payment. I do not accept Solina’s evidence on this issue. I will explain why.

[92] In her January 2020 Affidavit, Solina deposed that “my mother paid the $10,000.00 down payment on the Property.” In that affidavit, Solina annexed both the APS and the V/G Mortgage as exhibits, leaving no doubt that the Down Payment was $18,000.00. In her July 2020 Affidavit, filed in response to Jack’s affidavit sworn April 29, 2020, Solina did not dispute Jack’s statement that he paid $8,000.00 toward the Down Payment. Solina stated, as did Jack, that Violet saved and advanced $10,000.00 toward the Down Payment, but Solina did not provide any affidavit evidence that Violet paid the additional $8,000.00.

[93] At trial, Solina testified that Violet paid the entire $18,000.00 required for the Down Payment. Solina stated that the additional $8,000.00 came out of the bank account that Violet held jointly with Harry. In cross-examination, Solina conceded that she had not make any mention of Violet’s payment of $8,000.00 in her affidavit evidence and admitted that she had no documents to support Violet’s payment of this amount. This testimony shows that Solina was not truthful in her statements to Jack that she had documentary proof that Violet had paid all the down payment, as follows:

(a) In an email to Jack on March 12, 2019, Solina wrote: “Mom also gave me her financial records showing the money trail for the downpayment, mortgage payments and also the proceeds she received from the sale of her house on Henry Street, which was applied to the mortgage on Cyrus Street (emphasis added).”

(b) In an email to Jack on April 15, 2019, Solina wrote: “Mom gave me the original Agreement of Purchase and Sale documents with her name on it, plus proof of payment for the down payment, as well as mortgage payments and bank statements (emphasis added).”

[94] These statements by Solina were shown to be false. These documents that Solina claimed to have received from her mother regarding the Down Payment were not produced in this proceeding or tendered at trial. If Solina possessed these documents, I infer that they would have been produced in support of her case. As I will explain shortly, these findings are equally applicable to my assessment of whether Solina showed that Violet paid the V/G Mortgage.

[95] Further, in her email to Jack of March 12, 2019, Solina wrote that “Mom had saved a secret sum of $10,000 on her own behind Harry’s back, which she used towards the purchase of her house.” Solina did not make any reference to any payment by Violet of the other $8,000.00.

[96] I had concerns about the credibility and plausibility of Solina’s evidence. Her first-time testimony at trial about Violet taking money from a bank account held jointly with Harry, with no evidentiary foundation, which I found contrived, was but one example. I will refer to others in explaining my findings in relation to the payment of the V/G Mortgage. Solina’s inconsistent evidence and credibility concerns were compounded by the lack of corroborative evidence. Only Solina and Jack testified to the funding of the Down Payment. Sona had no meaningful, direct evidence on the payment for the Property.

[97] Since Solina did not establish that Violet advanced the additional $8,000.00 to fund the Down Payment, there was no gratuitous transfer to give rise to a presumption of resulting trust. Therefore, Jack did not have to rebut the presumption of resulting trust in relation to this amount. Jack’s evidence that he paid the remaining $8,000.00 to fund the Down Payment is plausible, in the context of having entered into the APS and the V/G Mortgage and in the context of the evidence at trial of the family circumstances. The parties agree that the full Down Payment was paid, and since I reject Solina’s evidence that it was advanced by Violet, the only other plausible payor is Jack. I accept Jack’s evidence that he did so. I so find.

(c) Did Violet pay the V/G Mortgage or did Jack?

[98] Solina’s testimony that Violet paid the amounts required under the V/G Mortgage to secure its discharge was based on unfounded conjecture. Violet may have received a payment in resolution of her matrimonial litigation with Harry, but there is no evidence that any such amount was applied to the discharge of the V/G Mortgage. Similarly, Violet may have had an Investment Certificate in 1991showing the principal sum of $30,000.00, but Solina did not establish that the V/G Mortgage was still unpaid at that time, or that these funds were applied to the V/G Mortgage.

[99] I have assessed Solina’s position that Violet paid the V/G Mortgage on the totality of the hearsay statements tendered by Solina, including that Violet stated that she paid for the entirety of the Property and all the mortgage payments, and that Violet considered that Jack had “stolen” the Property from her. I find that the hearsay statements do not satisfy the requirement of ultimate reliability. I will therefore not accept or rely on this evidence, as I will now explain.

[100] Solina’s evidence, including her testimony regarding what she was told by Violet, was inconsistent. The best example of this is that Solina testified that Violet told her that she owned the entirety of the Property, but the record showed that Solina stated on several occasions that Violet claimed only a 50% interest in the Property, including as follows:

(a) In an email to Jack on December 5, 2018, Solina wrote:

Mom had a very specific wish about what to do with her house after her death. She was very clear about what she wanted. We talked about it all the time. Her dying wish was for her house to be sold and that you keep you (sic) rightful half and the other half be split evenly between Sona and I. (Emphasis added.)

(b) In an email to Jack on March 12, 2019, Solina wrote:

She [Violet] gave you 50% ownership as tenants in common for your assistance in some payments and to act as a decoy to deceive Harry due to divorce proceedings. Both your names were on the original purchase document as 50% & 50% tenants in common ownership. Mom never thought otherwise. (Emphasis added.)

Solina continued as follows: “Our mother was adamant that she never knowingly or intentionally gave away her 50% ownership of her own house.”

(c) In an email to Jack on April 15, 2019, Solina wrote: “Mom gave you 50/50 ownership as tenants in common for your assistance during the time she was divorcing Harry. But she never knowingly gave you 100% ownership.”

[101] Further, the ultimate reliability of the hearsay statements tendered by Solina are adversely affected by my finding that Solina’s evidence lacked credibility on several material points, including the following:

(a) Solina testified that Violet could not enter into the V/G Mortgage as mortgagor because she was already a mortgagor in a mortgage registered on the Henry Street Property. There is no prohibition against having more than one mortgage. Further, the Parcel Register for the Henry Street Property showed that it was owned by Harry. Violet was not a mortgagor.

(b) Solina testified that Violet learned from a real estate agent that she had been “taken off title” for the Property, and frequently complained that Jack had improperly removed Violet from title to the Property. This was incorrect. The Parcel Registry for the Property shows that Violet was never on title.

(c) Solina testified that Violet paid the municipal property taxes associated with the Property. I accept that Jack has established, through corroborative documentary evidence, that he paid the property taxes from 2009 to 2018.

(d) Solina testified that she could not produce documents in support of her case because she was locked out of the Property in the months after Violet’s death. Jack did not change the locks on the Property until some 6 months after Violet’s death, providing Solina with time to enter and obtain materials. Further, Solina admitted that to that point, she had had unfettered access to the Property for decades.

[102] The credibility, plausibility, and reliability of Solina’s evidence, including the hearsay statements tendered by her, was significantly diminished by her inconsistent and contradictory testimony. Solina’s tendering of hearsay evidence was patently self-serving. Where Solina’s evidence in relation to the V/G Mortgage and, indeed, the payment of $8,000.00 to fund the Down Payment, conflicts with Jack’s evidence, I prefer Jack’s evidence over Solina’s evidence.

[103] Following the same analysis as with the $8,000.00 remaining on the Down Payment, as Solina has failed to establish that Violet paid the V/G Mortgage, Jack did not have to rebut the presumption of resulting trust in relation to the payment of the V/G Mortgage. The Plaintiff did not establish any advance of funds by Violet in payment of the V/G Mortgage that would necessitate rebuttal by Jack.

[104] Jack’s evidence that he paid the V/G Mortgage is corroborated by the documentary evidence. Jack was the mortgagor under the V/G Mortgage. The V/G Mortgage has been discharged. I do not put any weight on the V/G/ Mortgage having been discharged by registration on title on October 11, 2016, years after Jack states that it was repaid. I accept Jack’s evidence that there was an irregularity in registering the mortgage caused by oversight and by corporate change in the mortgagee.

D. Assessment of the Proportion of the Estate’s Beneficial Interest through Resulting Trust

[105] I have found that Violet paid the amount of $10,000.00 toward the Down Payment, and Jack paid the remaining $8,000.00. I have found, further, that Jack paid the amount necessary to discharge the V/G Mortgage: $20,500.00. Jack therefore paid $28,500 of the total purchase price of $38,500 for the acquisition of the Property, and Violet paid $10,000.00. That Violet paid monthly mortgage fees of $237.00 per month for the first year of the mortgage, and that Jack paid the property taxes does not affect my determination of the Estate’s proportionate ownership interest in the Property through purchase money resulting trust.

[106] Jack testified that he was generous in his financial support of Violet during her lifetime. No party denied that he was. Whether this totaled the amount of $260,000.00 stated by Jack or less is of no moment. This financial support cannot now be seen by Jack as payments in consideration of Violet’s interest in the Property, or even a justification for the denial of that interest.

[107] I conclude that Jack held title to the Property subject to a beneficial interest in purchase money resulting trust to Violet, and now her Estate, of 26% of the Property ($10,000/$38,500, rounded).

V. IS JACK LIABLE TO THE ESTATE IN UNJUST ENRICHMENT?

[108] To establish a claim in unjust enrichment, the Plaintiff must prove three elements: (i) an enrichment; (ii) a corresponding deprivation; and (iii) the absence of a juristic reason for the enrichment.[^56] Where unjust enrichment is established, the appropriate remedy would either be a monetary award rendered on a restitutionary and quantum meruit basis or, where a monetary award would be insufficient, a proprietary interest in the Property through a constructive trust.[^57] The onus is on the Plaintiff to establish that a monetary remedy would be insufficient.[^58] The Supreme Court has instructed that “where the court finds that a constructive trust would be an appropriate remedy, it will be imposed only to the extent of the plaintiff’s proportionate contribution (direct or indirect) to the acquisition, preservation, maintenance or improvement of the property”.[^59]

[109] Considering my findings and determination on the issue of purchase money resulting trust, it is not necessary to determine the issue of unjust enrichment as it would not provide the Plaintiff with any further remedy. The proprietary remedy that the Plaintiff sought in advancing her claim in unjust enrichment would, if successful, have provided the same beneficial interest that I have found on the basis of resulting trust. Put differently, based on my finding that Violet’s contribution to the purchase of the Property was $10,000.00 of the $38,500.00 purchase price, if I were to find that the Defendants are liable to the Plaintiff in unjust enrichment in the amount of $10,000.00, and if I were to grant a proprietary interest in the Property through constructive trust, the Plaintiff would receive the same remedy as I have already found based on resulting trust.

VI. IS JACK LIABLE TO THE ESTATE IN FRAUD?

[110] The Supreme Court has instructed that there are four elements to a claim in civil fraud: “(1) a false representation made by the defendant; (2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness); (3) the false representation caused the plaintiff to act; and (4) the plaintiff’s actions resulted in a loss”.[^60]

[111] Following these requirements, the Plaintiff submitted that Jack committed fraud against Violet by: (1) registering his name on title to the Property while telling Violet that she held title to the Property; (2) knowing that he had made a false representation to Violet; (3) which caused Violet to believe that she was a registered owner of the Property; and (4) Jack’s actions resulted in Violet sustaining a loss. The Plaintiff submitted that Jack’s fraud was compounded by providing assurances to Violet that she would be restored to title.

[112] The Plaintiff devoted only 1 of the 134-paragraph written closing submissions to argue for civil fraud, and a few others to pursue fraudulent concealment. The claims that the Plaintiff listed for trial on the issue of fraud were that Jack engaged in fraud by failing to transfer title of the Property back to the Deceased; that Jack fraudulently concealed that his name was the sole name on title to the Property; and that Jack fraudulently concealed that he did not add Violet to title of the Property after representing that he would do so.[^61] The Plaintiff did not establish that Jack made a false representation to Violet about the state of title, or that he concealed the state of the title to the Property, which was a matter of public record. There is no basis for a claim in civil fraud arising from Jack’s refusal to convey the Property to Violet, as I have found that Jack did not make any promise to do so. The Plaintiff fell well-short of establishing any of the four elements required for civil fraud. The Plaintiff’s claim in civil fraud is dismissed.

VII. WAS JACK A FIDUCIARY OF VIOLET AND, IF SO, DID HE BREACH ANY FIDUCIARY DUTY?

[113] The Plaintiff submitted that Jack was a fiduciary of Violet. Relying on the principles set out by the Supreme Court in Galambos v. Perez, the Plaintiff maintained that Jack undertook to act with loyalty and trust in the best interests of Violet, above any self-interest.[^62] The Plaintiff submitted that as Jack conceded that Violet relied on him for financial well-being, transportation to medical appointments, the filing of her taxes and, for some time, joint banking, that Jack owed fiduciary duties to Violet.

[114] Jack adamantly denied that he was a fiduciary of Violet. Jack did not administer or control Violet’s assets. Jack engaged in the joint acquisition of property with Violet only once – when he was 22 years old. Jack hosted Violet on family vacations, supported Violet financially and emotionally, and provided for her in times of need. Jack testified that he did so as an attentive son, not as a fiduciary.

[115] The principal case the Plaintiff relied on in support of her submission that Jack owed fiduciary duties to Violet was Vincent v. Kirkpatrick, a 2004 decision of the Newfoundland and Labrador Supreme Court.[^63] There, an adult child took over the custody and management of an incapable parent as a de facto guardian, despite the absence of legal authority. The court ruled on the adult child’s requirement to account. The Plaintiff relied on this authority to submit that Jack stood in the capacity of a de facto fiduciary for Violet, considering her reliance on him, her trust in him and her vulnerability. The Plaintiff submitted that once a child-parent fiduciary relationship is established, it is accompanied by a rebuttable presumption that undue influence was exercised by the child in the transfer of property.[^64]

[116] The Vincent decision is distinguishable. Violet was not incapable at the time that funds were advanced in the purchase of the Property in 1980. Although the medical evidence pointed to Violet’s vulnerability through failing health in the period leading to her death, there was no evidence that Violet was incapable at any time material to the issues raised by this trial. Jack owed duties to Violet in that his registered ownership of the Property was subject to Violet’s beneficial interest through resulting trust. However, the Plaintiff failed to establish that Jack stood in a fiduciary relationship to Violet as a de facto guardian at any material time.

[117] The claim that the Plaintiff listed for trial arising from Jack’s alleged status as a fiduciary was that “Jack breached his fiduciary owed to the Deceased by failing to return title to the [Property] to her name.”[^65] Even had I determined that Jack was a de facto fiduciary of Violet, I would not have found this breach of fiduciary duty as I have determined that Violet was not, at any time, entitled to sole ownership of the Property

VIII. IS THE PLAINTIFF’S RESULTING TRUST CLAIM LIMITATION BARRED?

[118] The parties agree, in my view correctly, that the limitation period applicable to the Plaintiff’s claim in resulting trust is the ten-year limitation period set out in section 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 (the “RPLA”). Section 4 imposes a ten-year limitation period on actions to recover land.

[119] In Waterstone Properties Corporation v. Caledon (Town), at para. 32, the Court of Appeal explained that an action to obtain an ownership interest in land is an action to “recover any land” for the purposes of s. 4 of the RPLA, as follows:

The words “action to recover any land” in s. 4 of the RPLA are not limited to claims for possession of land or to regain something a plaintiff has lost. Rather, “to recover any land” means simply “to obtain any land by judgment of the Court” and thus these words also encompass claims for a declaration in respect of land and claims to the ownership of land advanced by way of resulting or constructive trust.[^66]

[120] Further, the Court of Appeal has held that the limitation period for the claim in resulting trust remains governed by s. 4 of the RPLA even if, like here, the real property subject to the claim for resulting trust has been sold and the claim is now against the net proceeds of the sale of the property.[^67] The monetizing of the real estate does not diminish the application of s. 4.

[121] Jack submitted that the ten-year limitation period commenced, at the latest, by March 30, 2006. This is the date that Violet assigned into bankruptcy and declared that she did not own any real estate. Jack submitted that by then, at the latest, Violet, who was capable, had discovered that she was not a registered owner of the Property. Accordingly, Jack contended that the ten-year limitation period expired on March 30, 2016, almost four years before the Plaintiff initiated this legal proceeding by Notice of Application on February 5, 2020.

[122] The Plaintiff’s primary submission on Jack’s limitation defence is that Jack pledged and/or represented that he would put the Property in Violet’s name as a promise made at the time approaching Violet’s death on August 14, 2018, and that this proceeding was initiated less than two years thereafter. I found that Jack’s assurance to Violet that he would “take care of his sisters” falls well-short of a legally binding agreement to convey real estate. Accordingly, this is not the correct assessment of the limitation period applicable to this matter.

[123] The Plaintiff submitted, further, that ss. 5(1) and 5(2) of the RPLA postpone the commencement of the ten-year limitation period until Violet’s death. Section 5(1) of the RPLA postpones the commencement of the limitation period under s. 4 where the claimant was in continuous physical possession of the real property, up to the time of dispossession or discontinuance of possession.[^68]

[124] Building on s. 5(1), s. 5(2) of the RPLA has the effect of postponing the commencement of the limitation period to the date of death of a deceased person who has continued in possession of the disputed property until death, as follows:

Where the person claiming such land or rent claims the estate or interest of a deceased person who continued in such possession or receipt, in respect of the same estate or interest, until the time of his or her death, and was the last person entitled to such estate or interest who was in such possession or receipt, the right shall be deemed to have first accrued at the time of such death.

[125] The Plaintiff contended that as Violet resided in, and thereby continued in possession of the Property until her death, the limitation period first accrued at the time of her passing on August 14, 2018, and was thereby brought in a manner compliant with the ten-year limitation period. The Plaintiff relied on Khan v. Estate of Ahmed I. Khan.[^69] There, a widow claimed that her deceased husband was the beneficial owner of a house that he resided in until his death. The widow initiated a legal action within a month of his death. The Court found that the limitation period under s. 4 was postponed until the date of the husband’s death by operation of s. 5(2).[^70] The Plaintiff also relied on Hartman, where the Court of Appeal observed that s. 5(2) postpones the limitation period to the date of death of the deceased person who continues in possession of the property until death.[^71]

[126] Jack submitted that s. 5(2) of the RPLA is not applicable because Violet did not “continue in possession” of the Property until her death, but rather occupied the Property, with Jack’s permission, until her death. Jack submitted, further, that Violet was not “entitled to” possession of the Property, as required by s. 5(2). The authorities relied on by Jack in this submission were of questionable relevance, as I will explain.

[127] Jack relied heavily on Nelson (City) v. Mowatt, a decision of the Supreme Court that considered the difference between occupation and possession for the purpose of determination of a claim in adverse possession.[^72] The Supreme Court held that, in the facts of that case, the distinction between the concepts of possession and occupation was insignificant, and “essentially overlapped on the facts of [that] claim.”[^73] I do not see how this assists Jack’s position. Jack did not cite any cases that supported his interpretation of s. 5(2). Jack’s reliance on the application of s. 4 in Sinclair v. Harris is distinguishable because there was no evidence in that case that the deceased had ever resided in the subject property, whether by way of occupation or possession.[^74]

[128] I find that, in the facts of this case, s. 5(2) is engaged, with the result that the ten-year limitation period did not commence until Violet’s death. I will explain why.

[129] Violet resided continuously, and uninterruptedly, in the Property for 37 years, from 1981 to her death in 2018. For 26 of those years, she was the sole occupant of the Property. Jack was the registered owner of the Property, with the resultant rights and entitlements, but Violet was in possession of the Property for all purposes of its use as a residence. I do not accept that Violet entered the Property upon its acquisition in 1981 on the permission of her then-22-year-old son. Violet was not merely a resident of the Property, as contended by Jack, but rather she treated the Property as her own. It is uncontroverted that Violet paid the monthly mortgage payments for the first year of residence in the Property, and thereafter contributed to its utility costs. I have found that Violet paid $10,000.00 toward the $38,500.00 purchase price of the Property. Although she was not a registered owner on title to the Property, Violet had a beneficial ownership interest in the Property from the time of its acquisition. This provided Violet with an entitlement to possess the Property, as required by s. 5(2) of the RPLA.

[130] In the circumstances of this case, there was no significant difference between occupation and possession, as urged by Jack. As s. 5(2) of the RPLA is engaged, the ten-year limitation period only commenced upon Violet’s death on August 14, 2018. This Application’s trust claim against the Property is not limitation barred.

[131] By reason of my determination that this claim was brought on a timely basis in accordance with s. 5(2) of the RPLA, I do not consider that it is necessary to decide the Plaintiff’s submission that there is no limitation period for claims based on breach of trust pursuant to s. 42 of the RPLA. Also, as I found that the Plaintiff has not established civil fraud, I see no reason to determine the Plaintiff’s position that the limitation period was extended by fraudulent concealment, based on s. 28 of the RPLA.

IX. QUANTIFICATION OF THE ESTATE’S INTEREST IN THE PROPERTY

A. The Net Sale Proceeds

[132] Some ten months after Violet’s death, Jack transferred ownership of the Property to JDJ Inc., for $250,000.00. Jack then directed JDJ Inc. in the repair and renovation of the Property for sale. On September 15, 2020, JDJ Inc. sold the Property to arms-length purchasers for fair market value for $510,000. After deducting disbursements associated with the sale of the Property, the Net Sale Proceeds amounted to $486,858.39. These funds are, pursuant to Court Order, being held in trust pending determination of this proceeding.

B. Jack’s and JDJ Inc.’s Claim for Set-Off

[133] Jack and JDJ Inc. claim that the amounts that they paid, after Violet’s death, to clean, repair and renovate the Property to ready it for sale should be set-off from the Net Sale Proceeds. Jack and JDJ Inc. admit that they did not plead this set-off issue but contend that it is a component of the quantification of a beneficial interest in the Property. Jack and JDJ Inc. submitted, further, that it is fair and just that the amount of these expenses be factored in the quantification of the value of the Estate’s interest in the Property because they were incurred as part of the realization of the Net Sale Proceeds.

[134] The Plaintiff raises two objections. First, that Jack and JDJ Inc. did not plead the claim for legal or equitable set-off and failed to list it for trial. Second, that Jack and JDJ Inc. did not prove the amount of any set-off.

[135] Dealing first with the Plaintiff’s objection on pleading, this matter commenced as two Applications brought by the Plaintiff, which were consolidated and converted to an Action. The Trial Record consisted of the consolidated Application and Responding Application Records.

[136] Jack and JDJ Inc. did not bring an Application seeking relief of their own. Jack tendered an affidavit sworn April 28, 2028, in which he deposed that he paid for all the repairs and maintenance to the Property for the period from 1980 to 2018, totaling, he said, over $50,000.00.[^75] Jack tendered invoices in support of this evidence. Jack deposed, and testified in pre-trial cross-examination, that he paid for these repairs and maintenance out of “natural love and affection” for Violet, and was not claiming any reimbursement for these expenses.[^76]

[137] Jack also deposed, in his affidavit of April 29, 2020, that in 2019, after his mother’s death, he began renovations of the Property, which took almost 8 months to complete, costing $62,777.06, involving replacement of both bathrooms, the kitchen, doors and windows, and the electrical panel, as well as repainting the house.[^77] Unlike his evidence in relation to repairs in the period from 1980 to 2018, Jack did not tender any invoices in support of the alleged renovation costs.

[138] In her responding affidavit of July 24, 2020, Solina disputed that Jack and JDJ Inc. should be reimbursed for any renovation costs, stating that she had made clear to Jack in an email of March 25, 2019 that he would be reimbursed from the sale proceeds of the Property only for those renovation costs that Solina first approved.[^78] Solina also deposed that “Jack provided no documents to substantiate these expenses claimed.”[^79]

[139] Jack tendered an affidavit in reply, sworn December 3, 2020. Jack did not tender any invoices in support of his claim for reimbursement of renovation expenses. In his pre-trial cross-examination, Jack swore that he completed renovations to the Property “with a team of contractors” after his mother’s death, but Jack did not tender any invoices as exhibits to his reply affidavit.[^80] Jack and JDJ Inc. submitted that these invoices were produced after the delivery of the records, in the period leading to trial.

[140] I conclude from the evidentiary record that the Plaintiff was aware, from as early as April 2020, that Jack and JDJ Inc. claimed reimbursement for the renovation costs to prepare the Property for sale. I conclude, as well, that Jack and JDJ Inc. knew that this claim was disputed by the Plaintiff and produced invoices in support of this claim for reimbursement in their documentary production leading to trial.

[141] While the Plaintiff is correct that Jack and JDJ Inc. did not plead a claim for set-off from any entitlement established by the Plaintiff of the Net Sale Proceeds, in that they did not deliver an Application, the Plaintiff was aware, throughout, that Jack and JDJ Inc. sought reimbursement for the costs of the renovations and repairs that had been completed by them in preparation of the Property for sale. I saw no dispute that these renovations and repairs increased the fair market sale value of the Property, to the benefit of the Estate. There was also no dispute that Solina did not object to the repairs and renovations provided that they were submitted to her for authorization in advance. This consultation did not occur. I infer, however, that had Jack sought Solina’s consent to these renovations and repairs, as Solina had requested, her consent would have been forthcoming, as reasonable expenses for the repair and renovation of the Property for sale. I therefore find that it is fair and just that Jack and JDJ Inc. be reimbursed from the Net Sale Proceeds for the renovation and repair expenses as they were shown to be necessary expenses for the marketing of the Property for sale at its highest market value.

[142] At trial, Jack tendered four invoices, totaling $41,087.47, as the core renovation expenses, consisting of a payment of $1,525.50 to update the electrical panel; $793.26 in building materials; $35,668.71 for contractor’s work; and, $3,100.00 in ceiling repair and bathroom renovation. Jack testified that there were other invoices that would increase this total, and labour that he and family members contributed, mostly in demolition and debris removal. Jack stated that these values would have the effect of increasing the renovation cost to $62,777.06. However, these additional amounts were not proven.

[143] I find that Jack and JDJ Inc. have proven that they incurred renovation and repair costs after Violet’s death totaling $41,087.47 to prepare the Property for sale at its highest market value. I accept Jack’s evidence, corroborated by Sona and not denied by Solina, that the Property was “a mess” at the time of Violet’s death. I also accept that the total of $41,087.47 tendered by Jack in expenses is a plausible and reasonable value of renovation costs considering the scope of renovation that Jack and JDJ Inc. completed to the kitchen, bathrooms, doors, windows, flooring and mechanics of the Property, which also included finishing the basement to add another 400 square feet of livable space.

[144] For these reasons, the amount of $41,087.47 shall be deducted from the Net Sale Proceeds and credited to Jack and JDJ Inc. as reimbursement for renovation costs incurred by Jack and JDJ Inc. to prepare the Property for sale at its highest value.

C. Conclusion – The Payment Related to the Interest in the Property

[145] The deduction of the proven renovation expenses from the Net Sale Proceeds produces a realized value of the Property of $445,770.92.[^81] I determined that the Plaintiff has established that the Estate is entitled to 26% of this value, which equals $115,900.44. The Plaintiff has thereby established the Deceased’s beneficial interest in the Property and an entitlement to judgment against Jack and JDJ Inc. in the amount of $115,900.44.

X. IS THE ESTATE LIABLE TO REIMBURSE JACK FOR THE COST OF VIOLET’S FUNERAL?

[146] The parties agreed that Jack paid $20,255.07 as expenses for his mother’s funeral. Jack deposed that he paid his mother’s funeral expenses not because he viewed it as an obligation, “but rather as a duty to honour my deceased mother.”[^82]

[147] While the Will provides that the Estate will pay Violet’s funeral expenses, I see no record of Jack claiming from the Estate the reimbursement of his payment of his mother’s funeral expenses. This was an expense paid by Jack without thought or intention of reimbursement, akin to the Property repair and maintenance expenses paid by Jack in the years leading to 2018. Jack deposed that “there was never any question in my mind that I would pay for my mother’s funeral as I had also paid for my father’s funeral.”[^83]

[148] Jack did not advance this claim for reimbursement of funeral expenses in his Responding Application Record and Supplementary Responding Application Record. As a claim against the Estate, it was not pleaded and was not listed for trial. Unlike the expenses for home renovation and repair which were incurred in furtherance of the parties’ common interest to obtain the highest fair market value for the Property and were thereby subsumed in the costs incurred in selling the Property, the claim for reimbursement of the funeral expenses is an independent claim, disconnected from computation of the Net Sale Proceeds. Even if it had been properly brought by Jack, I would have denied this claim for reimbursement of funeral expenses on Jack’s admission that he paid this expense gratuitously, without holding the Estate to reimbursement.

[149] For these reasons, Jack’s claim against the Estate for reimbursement of Violet’s funeral expenses is denied.

XI. IS JACK LIABLE TO THE ESTATE FOR THE VALUE OF VIOLET’S PERSONAL PROPERTY?

[150] There is no dispute that Jack removed all of Violet’s personal possessions from the Property some six months after Violet’s death. There can be no contest that Jack did so while understanding that Solina was the Estate Trustee under the Will. Jack conceded that after notifying Solina of his intention to remove all personal property from the Property, he did so by disposing of “three dumpsters” of personal property as waste, and the remainder by delivery to local charities.

[151] There was no serious challenge by Jack that any personal property that he removed from the Property that belonged to Violet formed part of her Estate. Jack sought to justify the removal of the personal property on two grounds. First, Jack, supported by Sona, stated that the personal property was worthless, consisting of inexpensive, spent household items, threadbare furniture and worn appliances, diminished through age and use. Sona testified that she had dined on the dinette set in Violet’s kitchen as a child in the 1980s.

[152] Second, Jack stated that the limited household effects that had any value belonged to him, in any event, as he had purchased all items of value in the Property in the years leading to Violet’s death. This included a massage chair and a stair lift. Solina testified, supported by Sona, that when Jack purchased household items for Violet, they became her property, without a right of reversion by Jack. In cross-examination, Jack conceded that items that he purchased for Violet’s use became Violet’s property.

[153] I accept the Plaintiff’s submission that Jack wrongfully removed personal property belonging to the Estate. The authority of Solina as Estate Trustee, and the rights to the personal property by Solina and Sona as residuary beneficiaries, were disregarded by Jack in the improper removal of personal property that ought to have been received and distributed according to the Will.[^84] Jack had no basis, at law, on which to remove the personal property without the involvement of the Estate Trustee, even if he believed that the house in which the personal property was contained belonged to him.

[154] The Plaintiff had the burden of establishing the value of the removed personal property. The Plaintiff submitted that the best evidence of the value of the personal property was that the homeowner’s insurance policy that Jack had arranged for and purchased for the Property in the year leading to Violet’s death, covered “Personal Property” to a limit of $210,800.00. In the Plaintiff’s submission, this coverage limit was a reasonable value of the personal property.

[155] I do not accept this submission. A personal property or household contents coverage limit in a policy of homeowner’s insurance, does not prove value. It establishes the coverage limit available to the policy holder in the event of a personal property “loss”, as defined by the policy. This is true of the other property coverage limits in Violet’s homeowner’s policy. Indeed, the homeowner’s policy had a property coverage limit of $39,550 for “Private Structures”, when the Property did not have any “Private Structures”.

[156] Solina testified that Violet had diamond rings and a fur coat that have gone missing. I accept Sona’s evidence that she and Solina divided the modest number of pieces of jewelry owned by Violet at the time of her death, without deciding the dispute between the sisters regarding who received the more valuable items of jewelry as there was no reliable evidence of their value.

[157] In the absence of proof of value of the personal property, the Plaintiff relied on cases that awarded nominal awards for improper removal of personal property. In K.H. v. J.-L. H.-H.,[^85] where parties improperly removed and mostly incinerated seven trailer loads of household contents, on the assertion, like here, that it was “junk”, the Court awarded $3,500.00 in damages, a portion of the $15,000.00 claimed. The Court concluded that the personal property could not have had much value if disposed of, but had sentimental value, and that an award of damages was appropriate to reflect the Court’s condemnation of the unauthorized removal of personal property. The Plaintiff submitted that this approach reflects the principle that when the wrongdoer’s conduct, through destruction or spoliation of property, makes it difficult or impossible for a party to prove their loss, some damages may be presumed against the wrongdoer.[^86]

[158] The Plaintiff submitted that an award of damages of $50,000.00 for the loss of personal property would be appropriate. Jack submitted that the Plaintiff failed to prove the value of any lost personal property, but that, considering its condition, an award of no more than $1,000.00 in damages would be appropriate.

[159] I find that the Plaintiff has established the basis for an award of damages for Jack’s improper removal of the personal property. To determine value, I have taken into consideration that: Violet lived a modest lifestyle, having retired over 30 years prior to her death; Violet was discharged from bankruptcy some 12 years before her death, declaring at that time that she had $17,650.00 in assets; Violet’s Notices of Assessment from 2014 to 2017 showed that her total annual income ranged from $27,467 to $28,416.00. I accept that Violet enjoyed the furniture and household amenities purchased for her by Jack, and to a much lesser extent by her daughters, and that these items became part of Violet’s personal property.

[160] I award the Plaintiff the amount of $10,000.00 in damages for loss of personal property that ought to have been provided to the Estate Trustee for administration through the Estate.

XII. THE APPLICATION AGAINST SONA

[161] The Plaintiff did not identify a claim against Sona that required determination at trial. The Plaintiff’s pleaded claims against Sona pertained to pre-trial disclosure and documentary and asset preservation. In the Trial Management Report, the Plaintiff recorded that “Solina’s claims herein are principally against Jack, though, inter alia, Solina seeks the restoration of personal property from Sona as well as Jack and Solina is seeking, if necessary, some of her costs from Sona.”[^87] In opening and closing submissions, the Plaintiff did not seek any judgment against Sona.

[162] An Order shall issue dismissing this Application against Sona.

XIII. SUMMARY OF CONCLUSIONS

[163] On the basis of these reasons, the conclusions reached on the issues raised for trial, as set out in paragraph 14, above, are summarized as follows:

(a) Jack, and through him JDJ Inc., held the Property, and now the Net Sale Proceeds in the amount of $486,858.39, subject to a purchase money resulting trust for the benefit of the Estate, to the extent of a 26% interest.

(b) By reason of this determination, it is unnecessary to determine whether Jack is liable to the Estate in unjust enrichment, wherein the Plaintiff sought a proprietary constructive trust that would have provided a beneficial interest identical to that awarded based on a resulting trust.

(c) The Plaintiff did not establish that Jack engaged in fraud.

(d) The Plaintiff did not establish that Jack was a de facto fiduciary of Violet.

(e) The Plaintiff’s claim in purchase money resulting trust is not statute barred by operation of the RPLA.

(f) The value of the 26% beneficial interest established by the Plaintiff, after deduction from the Net Sale Proceeds for the renovation and repair expenses incurred by Jack and JDJ Inc. of $41,087.47 to prepare the Property for sale, is $115,900.44 from the Net Sale Proceeds.

(g) Jack’s claim for payment by the Estate of the expenses of $20,255.07 that he paid for Violet’s funeral is dismissed.

(h) Jack is liable to the Plaintiff in the amount of $10,000.00 for removal of personal property belonging to Violet that ought to have been recovered and distributed by the Estate Trustee.

[164] Additionally, the Plaintiff did not establish any basis for judgment against Sona. This Application shall be dismissed, as against Sona.

XIV. DISPOSITION

[165] On the basis of these reasons, the Plaintiff shall have judgment as follows:

(a) The Defendants, Jack Hougassian and JDJ Management Inc. shall pay the Plaintiff, Solina (Solinee) Bradshaw, in her capacity as Estate Trustee of the Estate of Violet Manoushag Hougassian, deceased (“Estate”), the amount of $115,900.44 as the beneficial interest of the Estate in the net, adjusted sale proceeds of the property known municipally as 323 Cyrus Street, Cambridge, Ontario.

(b) The Defendant, Jack Hougassian, shall pay the Plaintiff, Solina (Solinee) Bradshaw, in her capacity as Estate Trustee of the Estate, the amount of $10,000.00, as damages for personal property belonging to the Estate.

(c) This Application is dismissed as against the Defendant, Sona Shea.

[166] The lawyers for the parties may deliver to my judicial assistant a form of draft Judgment, after agreeing on its form and content and filing on CaseLines, comprising the disposition set out in these Reasons for Judgment. In the event of disagreement, any party may request the scheduling of a Case Conference to settle the form of Judgment.

XV. COSTS

[167] The parties are encouraged to agree on the issue of costs. If the parties cannot agree on the issue of costs, any party seeking costs may, by July 24, 2023, deliver by email to my judicial assistant, after service and filing on CaseLines, written costs submission of no more than eight (8) pages, plus a Bill of Costs. Any party against whom costs is sought may, by August 21, 2023, deliver by email to my judicial assistant after service and filing on CaseLines, responding cost submissions of the same length. If no party delivers any written cost submissions by August 21, 2023, I will deem the issue of costs to have been settled.

A.A. Sanfilippo J.

Released: June 26, 2023

[^1]: Order Giving Directions issued December 9, 2020, para. 13: “THIS COURT ORDERS that, on a strictly without prejudice basis and without impacting or modifying the rights of any party to make any argument or put forward or allege any position, including, but not limited to, the allegation that both Applications are statute-barred, the Application commenced by the Applicant bearing Court File Number CV-20-00649325-00ES shall be and hereby is joined and consolidated with the within proceeding, and evidence filed in this proceeding shall be common to both Applications.” [^2]: Order Giving Directions issued December 9, 2020, para. 10: “THIS COURT ORDERS that the Respondents shall preserve the proceeds of sale of the Deceased’s house until the within Application is disposed of, or unless the Applicant consents to the release of such proceeds.” [^3]: Trial Management Endorsement issued January 17, 2023, para. 2(c), Trial Exhibit 3. [^4]: The legal description of the Property is PT LT 15, PL1311 Cambridge as in WS598090; S/T & T/W interest in WS598090; S/T WS505387, WS509871; Cambridge and being all of PIN 03769-0141 LT. [^5]: Transfer Deed, registered on December 1, 1980, as Instrument Number WS598090. [^6]: 1268223 Ontario Limited v Fung Estate, 2016 ONSC 8020, at para. 10. This description pertains to the beneficiary of a sale. [^7]: Order Giving Directions issued December 9, 2020, at paras. 11 and 12. [^8]: Bankruptcy Estate file number 35-858438, date of proceeding March 30, 2006, effective date of discharge, December 31, 2006. [^9]: Trial Exhibit 17, Compendium of Agreed-Upon Read-Ins, Tab 12. [^10]: Tech-Hi Consultants Ltd. v. Sona Shea, Ontario Labour Relations Board Case No. 3016-15-ES. [^11]: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 16. [^12]: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 20. [^13]: Nishi v. Rascal Trucking Ltd., 2013 SCC 33 [2013] 2 S.C.R. 438, at para. 2. [^14]: Kerr, at para. 19, citing Pecore, at para. 24. See also, Belokon v. Kyrgyz Republic, 2016 ONCA 981, 136 O.R. (3d) 39 (C.A.), at paras. 54-58. [^15]: Kerr, at para. 19, citing Pecore, at para. 24. [^16]: Nishi, at para. 21. [^17]: Nishi, at para. 1. [^18]: Studzinski v. Studzinski, 2020 ONSC 2540, at paras. 153-154; Bao v. Mok, 2019 ONSC 915 at paras. 66-73; Prtenjaca et al. v. Wells-Prtenjaca et al., 2022 ONSC 438; Lee v. Starinovich, 2013 BCSC 1557, at paras. 72-73. [^19]: Andrade v. Andrade, 2016 ONCA 368, 131 O.R. (3d) 532 (C.A.), at para. 59. [^20]: Trial Record, Exhibit 1, affidavit of Solina Bradshaw sworn January 24, 2020 (“Solina Bradshaw January 2020 Affidavit”); affidavit of Solina Bradshaw sworn July 24, 2020 (“Solina Bradshaw July 2020 Affidavit”); affidavit of Solina Bradshaw sworn May 7, 2021 (“Solina Bradshaw May 2021 Affidavit”). [^21]: See e.g. Solina Bradshaw January 2020 Affidavit, at paras. 10, 12, 14, 20, 29, 30, 32, 35, 37, 38, 40, 45, 46, 48; Solina Bradshaw July 2020 Affidavit, at paras, 7, 9, 10, 11, 13, 19, 21, 29, 45, 54, 55, 67, 79, 83, 84, 86, 87, 90, 91 and 104. [^22]: Exhibit A, the Respondents’ “Objection to Admissibility of Affidavit Evidence”. [^23]: Solina Bradshaw January 2020 Affidavit, at para. 18. [^24]: Parcel Register, Waterloo (58), Galt, Plan 704. [^25]: R. v. Schneider, 2022 SCC 34, at para. 36: “Judges must consider: (a) whether the evidence is relevant; (b) whether it is subject to an exclusionary rule; and (c) whether to exercise their discretion to exclude the evidence.” [^26]: Schneider, at paras. 38 and 45: “judges determine relevance by asking whether, in light of all the other evidence, the at-issue evidence logically tends to make a fact in issue more or less likely.” [^27]: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 2-3 and 34: “The basic rule of evidence is that all relevant evidence is admissible. There are a number of exceptions to this basic rule. One of the main exceptions is the rule against hearsay: absent an exception, hearsay evidence is not admissible” (emphasis in original). [^28]: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 1 and 20; R v. MacKinnon, 2022 ONCA 811, at para. 27. [^29]: Schneider, at para. 47: “Hearsay evidence has three components: (1) a statement (or action) made outside of court by a declarant; (2) which a party seeks to adduce in court for the truth of its content; (3) without the ability of the other party to contemporaneously cross-examine the declarant (Khelawon, at para. 35; R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653, at pp. 661-62; see also R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, at p. 924).” [^30]: Bradshaw, at paras. 1 and 19. [^31]: Khelawon, at para. 2 (emphasis in original), and para. 42: “It has long been recognized that a rigid application of the exclusionary rule would result in the unwarranted loss of much valuable evidence.” [^32]: Khelawon, at para. 47; Bradshaw, at para. 23. [^33]: MacKinnon, at para. 38, citing Khelawon, at paras. 47-48, and Bradshaw, at para. 23. [^34]: Khelawon, at para. 49; Bradshaw, at para. 24. [^35]: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 34; R. v. Candir, 2009 ONCA 915, at para. 57, leave to appeal to SCC refused, 34622 (26 April 2012). See also Brisco Estate v. Canadian Premier Life, 2012 ONCA 854, 113 O.R. (3d) 161, at para. 52. [^36]: Khelawon, at para. 49; Bradshaw, at para. 26. [^37]: MacKinnon, at para. 54, citing Bradshaw, at paras. 26, 27, 30 and 40; R. v. McMorris, 2020 ONCA 844, at paras. 26-27; Khelawon, at para. 49. [^38]: Bradshaw, at paras. 28 and 109. [^39]: Bradshaw, at paras. 30 and 108; MacKinnon, at paras. 57-60. [^40]: Nishi, at paras. 21 and 29; Holtby v. Draper, 2017 ONCA 932, 138 O.R. (3d) 481, at paras. 33 and 37. [^41]: Bostrom v. Bigford, 2019 BCSC 79, at para. 93; Rosas v. Toca, 2016 BCSC 1754, at paras. 35-37, overturned but not on this point, 2018 BCCA 191, 9 B.C.L.R. (6th) 293, at paras. 37-43; Cadwell Estate v. Martin, 2021 BCSC 1089, at paras. 69-78; Swanstrom v. Wuest, 2018 BCSC 2299, at para. 45. [^42]: Singh v. Kaler, 2017 ABCA 275, at para. 26. [^43]: Singh, at paras. 28-29. [^44]: Chao v. Chao, 2017 ONCA 701, at para. 55; Foley (Re), 2015 ONCA 382, 125 O.R. (3d) 721, at para. 26: “Thus, when a parent gratuitously transfers property to an adult child, the law presumes that the child holds the property on a resulting trust for the parent. … The trial judge must begin her inquiry with the presumption and then weigh the evidence in an attempt to determine the parent’s actual intent at the time of transfer.” [^45]: Caroti v. Vuletic, 2022 ONSC 4695, at paras. 603-604. [^46]: Foley (Re), at paras. 25-26 and 29-30. See also Riordan v. Mellon, 2000 5729 (Ont. C.A.), 49 O.R. (3d) 641 (C.A.), at para. 6. [^47]: Singh, at paras. 26-29; Caroti, at para. 603; Brydle v. Alberta (Director of Assured Income for the Severely Handicapped), 2022 ABQB 387, at para. 56; Calmusky v. Calmusky, 2020 ONSC 1506, at paras. 43-44; Picone v. Mossetti, 2023 ONSC 1038, at paras. 83-84. [^48]: Nishi, at paras. 1-2, 21 and 30, citing Pecore, at paras. 24 and 27. [^49]: Nishi, at para. 37. [^50]: Foley (Re), at para. 29. [^51]: R v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, at p. 248. [^52]: Faryna v. Chorny (1951), 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 357, per O’Halloran J.A. See also the criteria set out by Cameron J. in Prodigy Graphics Group Inc. v. Fitz-Andrews, 2000 CarswellOnt 1178 (S.C.), at para. 46. [^53]: Borrelli v. Chan, 2018 ONSC 1429, at para. 186, aff’d 2019 ONCA 525, 147 O.R. (3d) 145, leave to appeal to SCC denied, 38733 (9 January 2020), citing Faryna, at p. 357. [^54]: Bradshaw, at para. 39. [^55]: Nishi, at paras. 1, 29 and 46. [^56]: Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R. 303, at paras. 35-38; Peter v. Beblow, 1993 126 (SCC), [1993] 1 S.C.R. 980, at p. 987; Kerr, at para. 32; Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834, at p. 848. [^57]: Moore, at paras. 89-90; Peter, at p. 988. [^58]: Kerr, at para. 52. [^59]: Moore, at para. 91, citing Kerr, at para. 51 and Peter, at pp. 997-98. [^60]: Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, at para. 21. [^61]: Trial Exhibit 1, Trial Record, Order of Justice Dietrich dated February 10, 2022, at paras. 5(i)-(k); Trial Exhibit 5, Final Report to Trial Judge, at p. 7. [^62]: 2009 SCC 48, [2009] 3 S.C.R. 247, at paras. 77-79. [^63]: 2004 NLSCTD 130, 238 Nfld. & P.E.I.R. 342. [^64]: Vincent, at paras. 33-35. [^65]: Trial Exhibit 1, Trial Record, Order of Justice Dietrich dated February 10, 2022, at para. 5(h); Trial Exhibit 5, Final Report to Trial Judge, at p. 6. [^66]: 2017 ONCA 623, [2017] O.J. No. 4087 (Ont. C.A.), at para. 32, relying on McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561 (C.A.), at paras. 38-39, and Hartman Estate v. Hartfam Holdings Ltd. (2006), 2006 266 (ON CA), 263 D.L.R. (4th) 640 (Ont. C.A.), at para. 56. [^67]: Studley v. Studley, 2022 ONCA 810, at para. 35: “Nonetheless, I agree with the motion judge that an otherwise tenable trust claim in land, one that would be sheltered by s. 4 of the RPLA, cannot be defeated by the sale of that land.” [^68]: Waterstone Properties, at paras. 33-38. See also Gill v. Gill, 2022 ONSC 4610, at paras. 26-28. [^69]: 2018 ONSC 4063, 2018 CarswellOnt 10805. [^70]: Khan, at para. 114. [^71]: Hartman, at para. 34. [^72]: 2017 SCC 8, [2017] 1 S.C.R. 138. [^73]: Nelson (City), at para. 32. [^74]: 2018 ONSC 5718. See also Khan v. Taji, 2020 ONSC 6704. [^75]: Trial Exhibit 1, Trial Record, Affidavit of Jack Hougassian sworn April 29, 2020, at paras. 43-45. [^76]: Trial Exhibit 17, Compendium of Agreed-Upon Read-Ins, Tab 15. [^77]: Trial Exhibit 1, Trial Record, Affidavit of Jack Hougassian sworn April 29, 2020, at para. 53. [^78]: Trial Exhibit 1, Trial Record, Affidavit of Solina Bradshaw sworn July 24, 2020, at para. 59, and Exhibit M. [^79]: Ibid, at para. 60. [^80]: Trial Exhibit 17, Compendium of Agreed-Upon Read-Ins, Tab 3. [^81]: $486,858.39 - $41,087.47 = $445,770.92. [^82]: Trial Exhibit 1, Trial Record, Affidavit of Jack Hougassian sworn April 29, 2020, at para. 61. [^83]: Ibid. [^84]: Bunn v. Gordon, 2015 ONSC 4768, at paras.12 and 14. [^85]: 2003 2387 (Ont. S.C.), at paras. 48-51. [^86]: Ticketnet Corp. v. Air Canada, 1997 1471 (Ont. C.A.), at paras. 82-86. See also, Borrelli v. Chan, 2018 ONSC 1429, at para. 935, leave to appeal refused, 2019 ONCA 525; Bhatnagar v. Cresco Labs Inc., 2022 ONSC 1745, at para. 84. [^87]: Trial Exhibit 5, Final Report to Trial Judge, at p. 7.