Court File and Parties

COURT FILE NO.: FS-22-30082 DATE: 20230913 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HOSSEIN MEHDIAN Applicant – and – KATAYOUN DADRAS, REZA DADRAS and NASRIN HAKIMI Respondents

Counsel: Ash Mazinani, for the Applicant Erin Betts, for the Respondent, Katayoun Dadras Herschel I. Fogelman and James Porter, for the Respondents, Reza Dadras and Nasrin Hakimi

HEARD: February 14, 2023

VELLA J.

Summary Judgment Reasons

1The Co-Respondents, Reza Dadras and Nasrin Hakimi ("Reza" and "Nasrin", respectively, and collectively, the "Parents-in-law"), bring this motion for summary judgment to have the claims made against them by the Applicant, Hossein Mehdian ("Hossein"), dismissed.

2The Respondent, Katayoun Dadras ("Katayoun"), took no position on this motion, and filed no affidavit in relation to this motion.

3Reza and Nasrin are the parents of Katayoun.

4Hossein and Katayoun were married in Iran on or about April 4, 1993. They followed Reza and Nasrin to Canada in 1998. They have two children together who are now independent adults. They separated on or about November 21, 2021.

5In his application, Hossein seeks, inter alia, an order for equalization of the net family property or alternatively an unequal division, a declaration that Reza and Nasrin held 50% of the property municipally known as 71 Bridle Path in Toronto (the "BP Property") in trust for himself and Katayoun, an order declaring that the Respondents have been unjustly enriched to Hossein's determinant relating to the BP Property, a declaration of a joint family venture as between Hossein and the Respondents, and an order for an accounting and tracing of the proceeds of sale from the BP Property.

6The essence of Hossein's claim against Reza and Nasrin is that he had a 50% beneficial interest, jointly with Katayoun, in the BP Property. The BP Property was bought by Reza and Nasrin (as the title holders) on March 31, 2010 for six million dollars and a new house was built and completed in 2014. All of the parties (and the children) lived in it from 2014 to 2021. The BP Property sold on November 15, 2021 for $23,850,000.00 by Reza and Nasrin.

7Hossein claims that Reza and Nasrin were unjustly enriched by his and Katayoun's contributions - monetary and non-monetary - and that a constructive trust, or alternatively, a resulting trust, over the BP Property is the appropriate remedy. He claims that he and Katayoun jointly contributed to the acquisition and construction of the BP Property on the mutual understanding that they would have a 50 percent beneficial interest notwithstanding Reza and Nasrin were the title holders. As Katayoun is not claiming a beneficial interest in the BP Property in these proceedings, Hossein asserts a 25% beneficial interest in this property.

8For the reasons that follow, the motion for summary judgment is dismissed. There are genuine issues of material fact that require a trial. However, the Parents-in-law's motion to strike certain paragraphs of the Application is granted.

Preliminary Motion by the Parents-in-law to Strike Portions of the Application

9Reza and Nasrin ask that paragraphs 53 to 56 of the Application be struck under Rule 1(8.2) of the Family Law Rules as they are not relevant to the claims raised by Hossein and were inserted to embarrass them. The impugned paragraphs allege that Reza falsified a will, that they may have had tax issues with the Canadian Revenue Agency, and an allegation that CSIS attended at the BP Property.

10The decision to strike a pleading is "a drastic remedy that should only be applied in exceptional circumstances, where no other remedy would suffice" (Eira v. Kulkami, 2021 ONSC 7015 at para 12, citing Callwood v. Callwood v. Purdy, 2020 ONSC 3657).

11I agree that these paragraphs have no logical connection to the equitable claims plead against Reza and Nasrin. They are inserted for colour. In these circumstances, no other remedy will suffice. Accordingly, they are struck as inflammatory and constituting a personal attack against the character of Reza and Nasrin (Frick v. Frick, 2016 ONCA 799, at paras. 42-44, and Eira at paras. 7-8, 11, 13).

12Furthermore, Hossein's Application appears to assert a spousal support claim against the Parents-in-law, which is clearly untenable. Hossein explained that there is a typo and that it was never his intention to make a claim against Reza and Nasrin for spousal support.

13Reza and Nasrin respond that when this error was initially pointed out, Hossein did not move to amend or formally withdraw this claim. It was not until questioning that Hossein admitted that the claim against them was in error and a result of a typographical error in which "spouse" was pluralized.

14Leave is granted to Hossein to amend his claim by withdrawing the erroneous claim for spousal support against Reza and Nasrin.

Preliminary Issue: Reliance by Hossein on Documents Disclosed Late

15Reza and Nasrin object to Hossein's reliance on Exhibits I, N, O and P to his affidavit because he failed to list them in his Affidavit of Documents and then failed to produce them in reference to his Response to the Parents-in-law's Demand for Particulars. They had to obtain a court order compelling Hossein to provide an Affidavit of Documents and respond to the Demand for Particulars. The impugned documents were not produced until by way of exhibits to Hossein's affidavit filed in response to this motion, days before the return of this motion.

16Reza and Nasrin rely on rules 19(8) and 19(10) of the Family Law Rules and urge me to exercise my discretion to refuse to admit these documents as they are arguably favourable to Hossein's case.

17The Parents-in-law did not seek an adjournment to deal with any prejudice they may have suffered as a result of this non-compliance with the rules, though I raised this possibility at the outset of the motion.

18The court retains discretion in these circumstances. In my view, given the stage of these proceedings and Reza and Nasrin's decision to proceed, it would not advance the ends of justice to refuse to admit these documents as exhibits. That said, this may be a circumstance that will be relevant to an assessment of costs.

Summary Judgment Test

19Under r. 16(6) of the Family Law Rules, the court "shall make a final order" if there is no genuine issue requiring a trial of a claim or defence. Pursuant to r. 16(6.1), the court may exercise special fact-finding powers in determining whether there is a genuine issue requiring a trial unless it is in the interest of justice that these powers only be exercised at a trial. If the only genuine issue is a question of law, the court shall decide the issue and make a final order.

20Rule 16 is a codification of the summary judgment principles articulated by the Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87 ("Hryniak") (see also, Phillion v. Phillion, 2015 ONSC 4255 (Ont. S.C.J.)).

21In Hryniak, at para. 45, the Supreme Court of Canada confirmed that summary judgment is "a significant alternative model of adjudication." The fact-finding rule provides judges the power to weigh evidence, evaluate credibility, and draw inferences, in order to resolve claims without the need to have a trial.

22The focus in a summary judgment motion is not on what further evidence could be adduced at trial, but rather, on whether a trial is required. A trial will not be required when the summary judgment process "(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result": Hryniak, at para. 49.

23The determination of a motion for summary judgment involves a two-step approach: the judge should first determine whether there is a genuine issue requiring a trial based only on the evidence before her, without using the fact-finding powers. If there is no genuine issue requiring a trial, summary judgment must be granted. Second, if there appears to be a genuine issue requiring a trial, the judge should then determine whether "the need for a trial can be avoided" by using the fact-finding powers to weigh evidence, evaluate credibility, and draw inferences: Hryniak, at paras. 66-68.

24On a motion for summary judgment, the moving party must establish a prima facie case that there is no genuine issue requiring a trial. Only then does the onus shift to the responding party. However, it is not sufficient for the responding party to simply rely on allegations in their pleadings. The responding party must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial. The responding party must put their "best foot forward" and the court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial.

25Respectfully, I disagree with Hossein's proposition that a genuine issue requiring a trial is determined on the basis that "there are no chances of success" or that it is "plain and obvious that the action cannot succeed" or is "only appropriate…when the outcome is a foregone conclusion" (A.P. v. F.D., 2016 ONSC 2566 at para. 16). With respect, the standard cited by Hossein is commensurate with a motion to strike the pleadings and is too low a threshold.

26I have examined the evidence within the framework of r. 16 and the principles established in Hryniak and have concluded that there is a genuine issue requiring a trial and the special fact-finding powers should only be exercised at trial. I do not have the necessary evidence to make the requisite findings of fact due, in large part, to the lack of evidence from Katayoun, and the bald nature of much of the contested evidence will require an assessment of credibility as between Hossein, on one hand, and Reza and Nasrin, on the other hand, concerning material facts.

Issue 1: Does Hossein's Claim of Unjust Enrichment raise a Genuine Issue requiring a Trial?

27In Moore v. Sweet 2018 SCC 52, [2018] 3 S.C.R. 303, the Supreme Court of Canada reviewed the law of unjust enrichment within a family law context. In Moore, during the marriage of the applicant (former) wife and the subsequently deceased husband, there was an oral agreement by which the wife agreed to pay the husband's life insurance premiums and the husband agreed to maintain her as his irrevocable beneficiary. The husband subsequently remarried and named his subsequent wife as the irrevocable beneficiary in breach of the oral agreement.

28The Court repeated the test for unjust enrichment and reminded us that the vehicle of a constructive trust only arises as a potential equitable remedy once the applicant has proven that the respondent has been unjustly enriched and there is no juristic reason justifying the respondent's retention of the benefit. Furthermore, the default remedy in the event of a finding of unjust enrichment is an in personam or monetary damages remedy.

29As an equitable doctrine, it is important to remember that the objective of unjust enrichment is to restore a benefit that justice will not permit the recipient to retain (Moore at para 35, citing Peel (Regional Municipality) v. Canada, 1992 SCC 21, [1992] 3 S.C.R. 762 at p. 788).

[30] The applicant must establish that: (a) the respondent was enriched; (b) the applicant suffered a corresponding deprivation, and (c) the respondent's enrichment and the applicant's corresponding deprivation occurred in the absence of a juristic reason.

31With respect to the third element of the test, the applicant must prove that there is "no reason in law or justice for the defendant's retention of the benefit conferred by the plaintiff, making its retention 'unjust' in the circumstances of the case" (Moore at para 54, citing Kerr v. Baranow, 2011 SCC 10, at para 40). First, the court will determine whether any of the "established" categories of juristic reasons have been established by the applicant; namely: "a contract, a disposition of law, a donative intent, and other valid common law, equitable or statutory obligations" (Moore at para 57).

32If the applicant establishes an absence of the established categories of juristic reason, then the respondent has the opportunity to rebut this presumption by demonstrating that there is a residual reason to deny recovery such as "the parties' reasonable expectations and moral and policy-based arguments - including considerations relating to the way in which the parties organized their relationship" (Moore at para 83, citing, inter alia, Kerr at paras 44-45).

33Pursuant to Pecore v. Pecore, 2007 SCC 17, at para 20, and Kerr, at para 16, a resulting trust will arise when title to a property is in the name of one party, but they hold title as a fiduciary or gave no consideration or value for the property. Either of these circumstances can give rise to a resulting trust such that the title holder holds that property in trust for the claimant and must return it to the claimant.

34Questioning was conducted of Hossein and Reza. Affidavits were filed by Hossein and Reza. A brief affidavit adopting and confirming the contents of Reza's affidavit was filed by Nasrin.

35It is undisputed that title to the BP Property has always been in the name of Reza and Nasrin alone and it has been sold. There is no allegation that there is any written record or communication that expressly reflects Hossein's position that he and Katayoun were intended to be joint beneficial owners of the BP Property with Reza and Nasrin. Accordingly, the court must scrutinize the surrounding circumstances, including the documentary record, in order to assess the credibility and reliability of the evidence to determine whether a genuine issue requiring a trial is raised concerning the allegation that Reza and Nasrin were unjustly enriched by the alleged contributions by Hossein and Katayoun. This will include whether (and, if so, in what amount) money and effort were contributed by them towards the purchase and/or construction of the BP Property, and whether there was a mutual understanding that Hossein and Katayoun were to be beneficial owners. Alternatively, is there a genuine issue requiring a trial relating to Hossein's allegation that he and Katayoun contributed money towards the purchase and/or construction of the BP Property which is impressed with a resulting trust in his favour.

36As stated, the initial burden of proof to establish that there is no genuine issue requiring a trial is on Reza and Nasrin.

Hossein's Evidence

37In his affidavit, Hossein outlined the ways in which he and Katayoun allegedly contributed to the purchase and construction of the BP Property.

38First, Hossein deposed that in 2011, Katayoun sold her apartment in Iran and that the sale proceeds were invested in the construction of the BP Property. He deposed that the apartment sold for approximately $570,000 based on an appraisal he attached as an exhibit.

39He also deposed that the sum of $105,000 was transferred from his RBC joint account with Katayoun to an RBC joint account held by Reza, Nasrin and Katayoun, a mere two days before the purchase of the BP Property. He attached a Credit Advice Slip showing this transfer as an exhibit to his affidavit.

40Furthermore, Hossein deposed that two months after the purchase of the BP Property, he and Katayoun borrowed $364,800 against the equity of a property held in Katayoun's name but in which both Katayoun and Hossein lived, municipally known as 1507-8 Hillcrest Ave., Toronto (the "Hillcrest Property"). Hossein deposed that the purchase price for the Hillcrest Property was paid for by Katayoun. Hossein deposed that those funds also were given to Reza and Nasrin towards the construction of the BP Property.

41Hossein produced by way of an exhibit to his affidavit, an email dated May 11, 2010 from Nasrin Ghajar of RBC to him and Katayoun confirming that "Your Homeline has been approved and as per your father [sic] request we have put $250K in a Fixed term for 5 years at 4.55% and $122K in a line of credit. I need you and Mr. Mehdian to sign these documents and return them back to me ASAP." He also produced an email from Reza to Katayoun and himself dated the following day asking them to transfer the $250,000 into Reza's account and to keep the rest as a credit line.

42Furthermore, Hossein tendered, as an exhibit, his RBC Homeline Plan Statements for the period May and July 2010 which shows that $114,800 was withdrawn from their account in July 2010 which coincides with his evidence that this sum was in turn paid to Reza and Nasrin allegedly towards to the construction of the BP Property.

43In summary, Hossein states that he and Katayoun made contributions in the sum of $2,200,120 consisting of the RBC transfer of $105,000, the funds from the Hillcrest Property Homeline and Line of Credit, the proceeds of sale of the Iranian apartment, payments made on the Hillcrest Property mortgage and line of credit, and various maintenance, improvement, and day to day expenses with respect to the BP Property such as housekeeper, utilities, phone, and general maintenance.

44Furthermore, Hossein deposed that both he and Katayoun invested much time in overseeing the construction of the BP Property, and that funds advanced by Reza and Nasrin to Katayoun throughout the marriage were not gifts but rather compensation for the work she did on their behalf related to various business and real estate ventures.

45Hossein tendered, as exhibits, various email exchanges involving himself, Reza and contractors engaged in the construction of the BP Property.

46Hossein deposed that there was a mutual understanding as between the four parties that he and Katayoun would have a 50% beneficial interest in the BP Property.

47Hossein did not resile from these basic positions in his Questioning.

Reza and Nasrin's Evidence

48Reza and Nasrin generally deny all of Hossein's assertions and submit that Hossein has no independent corroborative evidence to support his assertions. They deny that they received any funds towards the purchase or construction of the BP Property or that Hossein and Katayoun oversaw any of the construction. Furthermore, they deny that Katayoun worked in any remunerative capacity for them in relation to any of their businesses.

49Reza and Nasrin submit that Hossein has advanced no evidence to corroborate his assertion that he and Katayoun contributed funds, time and effort to the purchase and/or construction of the BP Property. They state that the only independent piece of evidence advanced by Hossein to demonstrate a contribution of funds is the Credit Advice Slip which shows a transfer of $105,000 from his and Katayoun's joint account to a joint bank account held by them and Katayoun dated March 29, 2010 - two days before the 6 million dollar purchase of the BP Property. They deny that these funds were used towards the purchase price, but rather was likely some sort of cash flow through using their own funds in the first place.

50In addition, Reza deposed that any properties held by Katayoun, including the Hillcrest Property, were gifts from them to her alone, and neither Katayoun nor Hossein worked on their behalf or played any significant role in the oversight of the construction of the BP Property. Rather, Reza deposed that they provided free room and board to Hossein, Katayoun and their three children while Hossein pursued his studies at medical school and became an orthopedic surgeon in 2008. He deposed that Hossein and Katayoun lived from his "charity". Reza and Nasrin claim no knowledge with respect to the use of the proceeds obtained by Hossein and Katayoun when they took out the line of credit on the Hillcrest Property that was occupied by Hossein, Katayoun and their children for a period of time. Reza deposed that the Hillcrest Property was intended by him to be a rental property. Katayoun has resided in it since separation.

51Turning to the sale of Katayoun's apartment in Iran, Reza deposed that the sale contract relied on by both of these parties show that the Iran Apartment was owned by Katayoun, and sold in 2011 for 68,954,979 IR, or approximately $6,000 CAD at the time ($5,000 CAD currently according to his Reply Affidavit). Reza contends that there is no evidence advanced by Hossein in support of his argument that the apartment was sold at a depressed value to reduce Katayoun's net worth. Reza maintains that he bought the apartment for Katayoun alone, two months after their wedding.

52Reza also challenges Hossein's evidence that he "agreed" that Reza would keep all of the rental income generated from the Hillcrest Property as part contribution for the construction of the BP Property. Reza denied that the corroborated expenses associated with the BP Property in the sum of $27,836.08 (in the form of cheques signed by Katayoun from her joint account with Hossein) were paid towards the preservation, maintenance or improvements of the BP Property and that in any event the landscaping expenses portion of these expenses were repaid by him.

Analysis

53Much of Reza and Nasrin's evidence is aimed at attacking Hossein's evidence. In so doing, Reza's affidavit, in particular, reveals that there are key issues of fact that must be determined by a better evidentiary record and will require a trier of fact to make a credibility assessment on these material issues of fact which lack a complete documentary basis and/or where there is none.

54For example, with respect to the RBC $105,000 transfer, Reza deposes that while he does not recall this transfer, he "guesses" that it was a flow through or other transient movement of funds from Hossein and Katayoun's joint account into the Parents-in-law and Katayoun's joint account. He then relies on some of the bank account statements produced by Hossein for the proposition that there was never a high balance albeit in an earlier period of time, he states that have been no bank statements produced for the material time frame in and around March 29, 2010. Reza speculates that Hossein, notwithstanding he was a practicing surgeon by then, could not possibly have saved $105,000.

55With respect to the Hillcrest Property mortgage and line of credit, Reza deposes that the initial discussions reflected by the emails advanced by Hossein related to the proposed purchase by Hossein and Katayoun of their own family home, and not the BP Property. However, after Katayoun allegedly advised him that the funds would instead be advanced for Hossein's business purposes, Reza revoked his consent. He then deposes that he does not know what happened to those funds. He stated that he did not pursue what came of these funds for various reasons including that Hossein had assumed responsibility for the carrying costs, though not within the context of any agreement that Hossein and Katayoun would be beneficial owners of the BP Property. Reza then asks the court to consider contextual factors such as the fact that they allegedly paid the entire purchase price of 6 million dollars for the BP Property by cash and did not need the funds from the Hillcrest Property refinancing.

56Furthermore, the questioning of Reza demonstrated vagueness in some of his responses to questions such as why Katayoun transferred $105,000 from her and Hossein's RBC joint account to the Reza, Nasrin and Katayoun's RBC joint account according to the Credit Advice slip tendered as an exhibit to Hossein's affidavit. He admits he was speculating.

57Finally, Reza and Nasrin rely on their bald allegations that the apartment in Iran was a gift to Katayoun alone, and whether any advances made to Katayoun over the course of the marriage were also gifts as opposed to compensation for work she allegedly did for their businesses and properties.

58On Hossein's part, he purported to rely on a "third party affidavit" from his cousin, which he attached as an exhibit to his affidavit. This too is improper. It is inadmissible hearsay. In addition, the email correspondence which he attached to his affidavit ostensibly between Katayoun and non-parties to this litigation, are similarly inadmissible hearsay.

59Also in evidence is a contract of sale by Katayoun of her apartment in Iran dated August 23, 2011. Reza and Nasrin claim that this apartment sold for approximately $6,000.00 but Hossein claims it sold, or ought to have sold, for approximately $570,000. He relies however on an appraisal he obtained for this apartment - again, this appraisal is not admissible. The author should have been called to identify the appraisal and was not.

60Furthermore, Hossein did not tender sufficient documentary evidence to confirm his assertions with respect to the amount of money he says he paid for day-to-day expenses relative to the BP Property such as the housekeeper, utilities, phone, general maintenance and the Hillcrest Mortgage and Line of Credit. Rather, for much of these expenses, all the court had were his bald assertions.

61In fact, some of the documents sought to be relied upon by Hossein were tendered by way of his affidavit of documents. An affidavit of documents merely lists the documents that a party states is relevant and whether privilege is being asserted or they were formerly, but are no longer, in possession, control or the power of the deponent. The affidavit of documents cannot be used as a substitute for the formal tendering requirements of documents as exhibits. Accordingly, as I advised counsel at the hearing, I am not considering any of the documents that are purported to be tendered by way of Hossein's affidavit of documents.

62In addition, some of the affidavit evidence submitted by Hossein, relating to alleged business interests that Katayoun had in various of Reza and Nasrin's companies is not relevant to the specific issue before me. There is no suggestion that Katayoun's interests in these various companies were used to contribute in any way to the purchase and/or construction of the BP Property. In any event, attached to Reza's affidavit are various exhibits that demonstrate that the shares which Katayoun owned at various times (some beginning as a child) have been disposed of for relatively little sums well before the date of separation, and all such businesses have long since been inactive (and in most cases dissolved).

63However, much of the evidence from Reza and Nasrin regarding the material issues of fact, like Hossein's, consists of bald allegations which will require an assessment of credibility.

64The glaring gap in the evidence of the Reza and Nasrin, as the moving parties, and for that matter by Hossein as the responding party, is the lack of evidence from Katayoun. Much of the contested facts implicate Katayoun directly and yet the court does not have the benefit of her evidence on this motion. Katayoun's evidence regarding her understanding with respect to what, if any, beneficial interest she jointly had with Hossein is critical to a just determination of this central issue. The assertion that various properties and/or monies advanced to Katayoun were gifted to Katayoun is also contested. A credibility assessment is necessary in order to make findings on the contested facts. These facts are, in turn, critical, to a determination of Hossein's unjust enrichment claim, and must be done on the basis of viva voce evidence at trial.

65In short there are many material findings of fact relating to how much, if any, money was contributed by Hossein and Katayoun to the purchase and/or construction of the BP Property, and what role, if any, Hossein and Katayoun performed in relation to the construction of the BP Property that cannot be determined on the basis of the written record (Mak (Estate) v. Mak, 2019 ONSC 2710). The determination of the trust issues are also relevant to Hossein's equalization of net family property claim against Katayoun.

66Furthermore, it is in the interest of justice that the special fact-finding powers only be exercised at a trial. The trier of fact will have the benefit of hearing evidence from Katayoun on the issues raised by Hossein relating to the BP Property and should have that evidence as part of the evidentiary record upon which to make the determinations regarding the alleged beneficial ownership of the BP Property and/or any allegations regarding how much money, if any, was contributed by Katayoun and Hossein towards the construction of the BP Property. The fact that Katayoun has not advanced a claim of unjust enrichment against her parents does not preclude a finding of unjust enrichment in favour of Hossein.

67While Hossein did not put his best foot forward, neither have Reza and Nasrin. Reza and Nasrin have not discharged their initial burden of proof. There are genuine issues of material fact that require a trial of an issue.

68As an aside, while there is evidence in the record before me that could support a finding that there was no resulting trust over the BP Property, including uncontested evidence that Reza and Nasrin contributed their own money to pay for at least a portion of the purchase price and/or construction of the BP Property and were not fiduciaries of Hossein and Katayoun, there was no motion for partial summary judgment before me. In any event, the Parents-in-law would have had to satisfy the test for granting partial summary judgment and this was not argued. Accordingly, the motion requesting summary judgment is denied.

Issue 2: Does Hossein's Remedial Claim of a Constructive or, alternatively, a Resulting Trust raise a Genuine Issue requiring a Trial?

69As the BP Property was sold in November 2021, the request for a proprietary remedy of a constructive trust is now moot. However, Hossein may have an in personam monetary remedy in lieu of the constructive trust remedial claim.

70In any event, Hossein's claim based in unjust enrichment has raised material issues of fact that will require a trial. Therefore, I need not rule on this issue.

Issue 3: Does the Limitation Defence raise a Genuine Issue requiring a Trial?

71The limitation period for an unjust enrichment claim in which the applicant seeks a remedial constructive or resulting trust in real property is governed by the 10 year limitation period pursuant to s. 4 of the Real Property Limitations Act, RSO 1990, c. F. 15. Where the applicant is seeking a monetary award in the alternative to a remedial constructive or resulting trust over real property, s. 4 of the RPLA also applies (McConnell v. Huxtable, 2014 ONCA 86 at paras. 38-40).

72Hossein and Katayoun separated in 2021. Furthermore, the BP Property was sold in 2021. This application was commenced in 2022. Hossein deposes that he did not discover his cause of action until he and Katayoun separated in 2021. The claims seeking an in personam remedy based on unjust enrichment in lieu of a constructive and/or resulting trust are subject to the 10-year limitation period under the RPLA. Hossein did not seek a declaration that his claim was not time-barred and has put into issue when he did and/or ought to have reasonably discovered his cause of action. Accordingly, this defence raises a genuine issue of fact requiring a trial.

Issue 4: Ancillary Claims Not Pleaded in the Application

73In his factum, Hossein raised some claims that are not pleaded such as conspiracy.

74Reza and Nasrin objected.

75The Application speaks for itself, and I have not considered any claims not properly pleaded, including any alleged conspiracy.

Disposition and Costs

76The motion to strike is granted.

77The motion requesting summary judgment is dismissed.

78If the parties cannot agree upon costs, cost submissions along with cost outlines shall be delivered by the Applicant within 10 days, and by the Co-Respondents within 10 days thereafter. The cost submissions shall not exceed 3 pages double spaced from each of the parties. They shall be delivered by email to my judicial assistant, maria.kolliopoulos@ontario.ca