Gomes v. Da Silva, 2023 ONSC 6392

COURT FILE NO.: CV-19-623904-0000 DATE: 20231113

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

EULALIA GOMES, NASCIMENTO COELHO and TITO DA SILVA, BY HIS ATTORNEY, OTILIA DA SILVA Plaintiffs – and – VICTOR A.P. DA SILVA Defendant

Counsel: Stephen M. Turk, for the Plaintiffs Antonio Conte, for the Defendant

HEARD: April 24, 25, 26, 27 and 28, 2023, with written submissions delivered on May 1 and 4, 2023

REASONS FOR JUDGMENT

VERMETTE J.

1The parties are siblings. Since the death of their mother in January 2019, they have been unable to agree as to the ownership of the family home and what should happen to it. Ultimately, this action was commenced. In response to the Plaintiffs’ claim for partition and sale, the Defendant advanced a claim for a resulting trust and sought to be reimbursed for work that he did on the house, primarily between 1974 and 2012.

2The Plaintiffs seek the following relief against the Defendant:

a. an order for partition and sale of the property municipally known as 993 Dundas Street West, Toronto (“Property”);

b. an order directing that the Honourable Mr. Colin Campbell conduct the sale of the Property and that he be vested with all the powers necessary to conduct the sale of the Property and transfer the title to the Property;

c. an order that the Honourable Mr. Colin Campbell’s fees for conducting the sale of the Property be taken from the gross proceeds from the sale of the Property;

d. an order directing that the net proceeds of the sale of the Property shall be disbursed to the parties pursuant to the following percentage interests:

i. Eulalia Gomes: 12.5% ii. Nascimento Coelho: 12.5% iii. Tito Da Silva: 12.5% iv. Victor Da Silva: 62.5%

e. an order that the Defendant fully account to the Plaintiffs for the income derived, and the expenses incurred and/or paid with respect to the Property for the time commencing January 1, 2019 until the trial of the action;

f. an order directing the Defendant to pay to the Plaintiffs their share of the net profits realized from the Property for the time commencing January 1. 2019 until the trial of the action and/or that the amounts owed to the Plaintiffs be allocated to them from the Defendant’s share of the proceeds of the sale of the Property: and

g. further, and/or in the alternative to the relief set out in (f) above, damages for conversion, breach of trust, and breach of fiduciary duties, or a restitutionary award for unjust enrichment.

3The Defendant seeks the following relief in his counterclaim:

a. a declaration that he is the beneficial owner of 100% of the Property and rectification of the title register to delete all other interests and to reflect his ownership;

b. a credit for the value of services that he provided to the Property from the time that it was purchased, and for which he was never compensated, being the sum of $300,000 or such other sum as is determined by this Court; and

c. the return to the house rental account of $11,261.62 and any other amount that the Plaintiffs have taken from this account.

4I grant the Plaintiffs’ claim for partition and sale because there is no ground to deny it. As for the Defendant’s counterclaim, I conclude that the Defendant has failed to establish a resulting trust. The presumption of resulting trust does not apply in this case because the Defendant has not established that he advanced more than 50% of the purchase price of the Property. I also conclude that most of the Defendant’s claim regarding the work that he allegedly did on the Property is statute-barred.

A. FACTUAL BACKGROUND

1. The parties, the witnesses and the Property

5The Plaintiffs Eulalia Gomes (“Ms. Gomes”) and Nascimento Coelho (“Ms. Coelho”), the late Tito Da Silva (“Tito”) and the Defendant Victor A.P. Da Silva (“Mr. Da Silva”) are all siblings. Tito passed away on June 7, 2022.

6Their father was Jose Da Silva. He passed away on May 2, 1996. Their mother was Maria Da Silva. She passed away on January 3, 2019, at 96 years of age.

7The Plaintiffs’ only witnesses at trial were Ms. Gomes and Ms. Coelho. The Defendant had three witnesses: (1) Mr. Da Silva himself; (2) his common law spouse since 1976, Ms. Ginette Robert (“Ms. Robert”); and (3) Mr. James Robert Swift, a tenant at the Property (“Mr. Swift”).

8The Property is a residential property that has three floors and a basement. It is a semi-detached house. It is attached to 991 Dundas Street West which is currently owned by Mr. Da Silva and Ms. Robert.

2. The parties’ early years in Canada

9The parties and their parents were all born in Portugal. In July 1966, Jose Da Silva, Ms. Gomes and Mr. Da Silva came to Canada. Maria Da Silva stayed in Portugal with Ms. Coelho and Tito.

10Jose Da Silva, Ms. Gomes and Mr. Da Silva all found work after coming to Toronto. Mr. Da Silva was only 15 years old at the time.

11In Portugal, Jose Da Silva was an entrepreneur. He sold and delivered produce that came from a number of farms that he owned. Maria Da Silva wound down the business after Jose Da Silva left for Canada. She sold the assets of the business (delivery trucks, farming equipment, etc.), but not the land.

12In Canada, Jose Da Silva worked as a caretaker for a hospital and, later, for the Royal York Hotel. During his first couple of years in Canada, he worked in construction and farming.

13After arriving in Canada, Mr. Da Silva went to pick tobacco and he also worked in a factory. His evidence is that he earned a total of $14,800.00 from 1966 to 1970. Except for a small amount that he kept to pay for public transportation, he gave all of his earnings to his father.

14Jose Da Silva, Ms. Gomes and Mr. Da Silva lived together in a rented house until Ms. Gomes moved out in May 1968 when she got married. At some point after Ms. Gomes got married, Mr. Da Silva asked Ms. Gomes whether he could live with her and her husband following a physical dispute with his father. Mr. Da Silva lived with them for some time. He was paying room and board.

15In 1970, Maria Da Silva, Ms. Coelho and Tito joined the rest of the family in Canada. All the members of the family, except for Ms. Gomes, went to live in a rented house.

16There is some evidence that in April 1970, Jose Da Silva signed an agreement of purchase and sale for a house in Toronto with a closing date in June 1970. According to Mr. Da Silva, the transaction did not close and the $1,600 deposit was lost. Ms. Gomes and Mr. Coelho have no knowledge regarding this agreement of purchase and sale.

17Between 1970 and 1974, the family lived in approximately three different rented houses. Mr. Da Silva did not live in the third rented house as he went to live with Ms. Gomes and her husband who, by that time, had bought a house.

18Maria Da Silva worked in Canada. She first worked at a factory, and worked as a cleaning lady during weekends. She later left the factory and went to work for George Brown College.

19Ms. Coelho testified that between 1970 and 1972, she and Tito gave the entirety of their pay cheques to their parents. Between 1972 and 1976, they paid room and board to their parents.

20In 1971, after taking welding courses at George Brown College, Mr. Da Silva became a boilermaker. That year, he worked on probation for the boilermakers’ union – the International Brotherhood of Boilermakers, Local 128 – and earned $7,014.79. According to Mr. Da Silva, he gave all of his earnings to his parents.

21In 1972, Mr. Da Silva became a member of the boilermakers’ union and started earning more money. He does not remember how much money he earned in 1972, 1973 or 1974. His evidence was that around that time, he was making between $300 and $400 per week. The Statements of Remuneration Paid (T4) produced by Mr. Da Silva show that he earned more than $7,000.00 in 1971 and more than $9,500.00 in 1972. According to Mr. Da Silva, he made more than the official records show as he did additional work for cash. In 1972, he bought a car (a Mustang) that he paid $4,200 cash.

3. Purchase of the Property

22In 1974, Mr. Da Silva and his father started looking for a house for the family. They asked a distant cousin who was a real estate agent, Deodoro Constancio (“Mr. Constancio”), to help them. Eventually, an offer was made on the Property and it was accepted by the Property’s owners. Mr. Da Silva’s evidence is that he wrote the cheque for the $2,000 deposit and gave the cheque to Mr. Constancio before leaving to go work “up north”.

23The agreement of purchase and sale pertaining to the Property was only in the name of Jose Da Silva. Mr. Da Silva stated at trial that he told his father to leave his name on the agreement of purchase and sale and they agreed to do so.

24The closing date for the sale and purchase of the Property was July 15, 1974. The sale price was $63,500.00. As stated above, a $2,000.00 deposit was made. A $38,500.00 vendor take-back mortgage was registered against the Property. Taking into account the adjustments, $23,103.78 was due on closing. Mr. Da Silva’s evidence is that he paid approximately $20,000.00. Mr. Da Silva does not have any documents showing that he paid this amount or any other amount at the time of the purchase of the Property.

25Mr. Da Silva’s evidence at trial was that he paid for the Property to make his father proud. He stated that the money he paid for the Property was not a loan and was not a gift. According to Mr. Da Silva, his father did not have any money and could not qualify for a mortgage. The idea was to put money in and to deal with the issue later, but it never happened.

26The Property was purchased by Mr. Da Silva and his parents as tenants in common. Jose Da Silva and Maria Da Silva held an undivided one-half interest in the Property as joint tenants. Mr. Da Silva held the remaining undivided one-half interest in the Property.

27Ms. Coelho’s understanding was that her parents bought the Property 50-50 with Mr. Da Silva. She was 21 years old at the time. She stated that before her mother passed away, she had never heard the allegation that Mr. Da Silva had paid for everything in relation to the purchase of the Property.

28After the purchase of the Property, the family, except for Ms. Gomes, moved into the Property.

29Jose Da Silva and Maria Da Silva lived on the first floor of the Property, the children (Ms. Coelho, Mr. Da Silva and Tito) lived in the basement, and tenants lived on the second and third floors. By 1976, all the children had left and the basement was rented as well. Mr. Da Silva stated that he converted the basement into two bedrooms.

30Rent payments were deposited in a separate bank account that the parties called the “house account”. This account was used to make mortgage payments and pay taxes and expenses related to the Property.

31Jose Da Silva and Maria Da Silva did not pay rent. They had an agreement with Mr. Da Silva that in exchange for them not paying rent, Mr. Da Silva could collect the rent for the third floor and keep it for himself. As a result, the rent paid by the tenant on the third floor did not go into the house account.

32As stated above, Ms. Coelho and Tito paid room and board to their parents until they moved out of the Property in 1976.

33Ms. Coelho’s evidence was that she collected rent payments and did the accounting in relation to the house account from 1974 to 1998. In contrast, Ms. Robert’s evidence was that she had been the one dealing with bills and accounting for the Property since 1980. However, this is inconsistent with the claim that Mr. Da Silva advances for her work which is based on 20 years, not 40 years.

34Mr. Da Silva’s tax return for 1980 indicates that the Property was owned 50% by Mr. Da Silva and 50% by Jose Da Silva. For income tax purposes, the net income from the Property appears to have been split 50-50 between Mr. Da Silva and Jose Da Silva.

35After purchasing the Property with his parents, Mr. Da Silva purchased a number of other properties over the years. In 1981, Mr. Da Silva and Ms. Coelho’s husband purchased a duplex in Toronto. They took title as tenants in common. They sold the duplex in 1984. In addition to the Property and the duplex, Mr. Da Silva bought a cottage in the late 1970’s, his residence in the early 1980’s, and at least three other properties, including 991 Dundas Street West in Toronto, i.e., the house attached to the Property. Mr. Da Silva used lawyers for these real estate transactions.

4. Discharge of mortgage on the Property

36In 1984, Jose Da Silva, Maria Da Silva, Mr. Da Silva and the mortgagees agreed to extend the mortgage registered on the Property until July 15, 1989. At the time of the extension, $26,700.00 was owing.

37The mortgage on the Property was ultimately discharged in 1989. The mortgage schedule shows that $22,700.00 was owing at that time. Ms. Coelho’s evidence is that the mortgage was paid out by certified cheque from the house account. There is no document or bank record confirming this.

38Mr. Da Silva does not believe that there was enough money in the house account to pay the mortgage. He said that he wrote a cheque to pay the mortgage. He did not specify how much he paid from his personal funds, and he does not have any documents showing that he paid the mortgage. Mr. Da Silva pointed out that banks do not keep records for that long.

39After the mortgage was paid, when there were surplus funds in the house account, Jose Da Silva would ask Ms. Coelho to bring money home, usually before Christmas. The surplus funds were shared 50-50 between Mr. Da Silva and his parents. Typically, Jose Da Silva and Maria Da Silva would use their share to give money to, or buy gifts for, their children, including Mr. Da Silva.

5. Jose Da Silva’s bank accounts

40Jose Da Silva had a number of bank accounts at different financial institutions. The following bank passbooks were in evidence before me:

a. Canadian Imperial Bank of Commerce (“CIBC”) – 1969-1970 (account number starting with 021) b. CIBC – 1973-1976 (account number starting with 03-88) c. Federal Trust Company – 1975-1979 d. CIBC – 1980 (account number starting with 301) e. CIBC – 1980-1981 (account number starting with 512) f. CIBC – 1980-1984 (account number starting with 301) g. Central Guaranty – 1982-1990 h. CIBC – 1984-1993 (account number starting with 512) i. CIBC – 1993-1997 (account number starting with 301) j. CIBC – 1994-1996 (account number starting with 512)

41The CIBC passbook for 1974 shows a $3,000.00 cheque being debited on July 15, 1974, which was the closing date for the purchase of the Property. The sum of $334.71 was left in the account after the withdrawal.

42Aside from this $3,000.00 payment, there is no other documentary evidence before me showing any payments made by Jose Da Silva and/or Maria Da Silva in relation to the purchase of the Property and the discharge of the mortgage. There is similarly no documentary evidence before me showing any payments made by Mr. Da Silva in relation to the purchase of the Property and the discharge of the mortgage.

6. Jose Da Silva’s passing and 2008 events

43As stated above, Jose Da Silva passed away on May 2, 1996. At the time of his death, Jose Da Silva still owned properties/lands in Portugal. In 1998, Maria Da Silva divided the parcels of land among her children. Appraisals were prepared and the person who received a higher value had to compensate the others. Ms. Coelho and Ms. Gomes both stated at trial that the properties had a value of approximately CDN $500,000.00.

44I heard inconsistent and at times contradictory evidence during the trial regarding the relationship between Mr. Da Silva and his father and the relationship between Jose Da Silva and Maria Da Silva. The issues before the Court do not require me to make findings on these points. I note, however, that even Mr. Da Silva acknowledged that his relationship with his father was often a difficult one, especially when he was younger, with numerous ups and downs.

45After Jose Da Silva’s passing, the next significant events for the purpose of this action took place in 2008.

46On March 27, 2008, Mr. Da Silva sent the following letter to his mother (“March 27, 2008 Letter”):

You may recall that we had a discussion in February of this year and you had mentioned that you will get back to me after discussing with other members of family to provide your consent to Victor applying for credit against his portion of the Net worth of the property at 993 Dundas Avenue West.

Further to this discussion, I asked my business advisor to prepare a draft consent letter a copy of which is again enclosed for your reference.

I am entering in to business transaction whereby I absolutely need to obtain credit against my portion of ownership in the property at 993 Dundas Avenue West. I will therefore appreciate your quick action in this regard. I can not afford to lose a great business opportunity if action is not taken right away.

I therefore request you to take immediate action in this regard. I also encourage you to take appropriate legal advice. You may wish to consult with other family members in this matter, should you chose [sic] to do so.

This should also be your notice that unless I hear from you by April 15, 2008 of your intention to provide consent in writing, I will be forced to take appropriate action to obtain credit against my part of the ownership in the property.

47According to Mr. Da Silva, he wrote this letter with Ms. Robert’s assistance.

48Maria Da Silva received this letter by mail. Given that she had difficulty reading in English, she showed the letter to Ms. Coelho and asked her to translate it. The letter was also subsequently shared with Ms. Gomes and Tito.

49The March 27, 2008 Letter enclosed a draft agreement dated March 2008 between Mr. Da Silva and Maria Da Silva. The draft agreement read, in part:

A. The parties are the joint (50% each) owners of the property municipally known as 993 Dundas Avenue West.

B. The parties are related to each other, “Victor” being son of “Maria”

C. “Maria” and “Victor” intend this agreement to be exclusively for the purpose of “Victor” making an application for a credit line against only his portion of the property owned by him and not against the portion owned by “Maria”

NOW THEREFORE THE [sic] VICTOR AND MARIA AGREE AS FOLLOWS:

1. This agreement and everything contained in it shall be governed by the laws of the Province of Ontario.

2. This agreement may only be amended or varied by a court order, or by written agreement between “Victor” and “Maria”

3. “Victor” will apply for a credit line against the market value of his half of the property and will offer his own personal guarantees as required by the bank.

4. “Maria” agrees to sign the application for credit line to be applied by “Victor”. However she will not be responsible for any expense for the transaction. “Maria” will also not guarantee the loan.

ACCEPTANCE

5. “Maria” and “Victor” further acknowledge and agree that: i, each and every recital of fact contained herein is true and accurate; ii. they have each read and understood the agreement; iii. they each sign this agreement as free agents; iv. this agreement has been executed without any pressure, influence or intimidation by anyone; v. they are each aware of the advisability of seeking full and independent legal advice with respect to this agreement and the alternatives available to the execution of it.

50At trial, Mr. Da Silva stated that he had no recollection about this draft agreement and the question was raised as to whether it was enclosed with the March 27, 2008 Letter. Ms. Coelho did not remember translating the draft agreement for her mother at the time she translated the March 27, 2008 Letter. Her evidence was that she saw the draft agreement after meeting with her mother to translate the March 27, 2008 Letter. Ms. Gomes’ evidence was that the draft agreement came with the March 27, 2008 Letter and that it was reviewed with the letter at the family meeting that subsequently took place.

51I find that it is more likely than not that the draft agreement was enclosed with the March 27, 2008 Letter. The letter itself refers to an enclosed “draft consent letter” allegedly prepared by Mr. Da Silva’s business advisor. I also find that the draft agreement was prepared by or on behalf of Mr. Da Siva and that Mr. Da Silva read it at the relevant time. I note that these findings are supported by an affidavit that Mr. Da Silva swore on August 14, 2019, in which he refers to sending to his mother a letter and a consent prepared by his business advisor.

52A family meeting was organized in May 2008 to discuss the March 27, 2008 Letter. All the siblings were present at the meeting. Ms. Gomes did not think that what Mr. Da Silva was proposing was a good idea. The siblings agreed that Maria Da Silva should obtain legal advice.

53Maria Da Silva retained a lawyer who spoke Portuguese. He came to the Property to meet with her. The evidence is not clear on this point, but some of the siblings, including Ms. Coelho and Tito, may have been present during this meeting. [1] The lawyer’s recommendation to Maria Da Silva was that either Maria Da Silva or Victor Da Silva buy the other’s interest in the Property or that the Property be put on the market.

54On May 21, 2008, Maria Da Silva sent the following letter to Mr. Da Silva:

As you give me no other alternative but to reply to you in writing further to your letter dated March 27th, 2008 and subsequent verbal conversation of May 4 th 2008 this letter is to advise you that I am not prepared to sign an application for a credit line or any other form of credit against subject property.

I therefore, propose the following options,

• I purchase your share of the said property.
• or you purchase my share of said property with the condition that I will remain for as long as I wish with agreed upon monetary compensation

I did not reply sooner as outlined on your letter due to the fact that I did seek legal advice.

55There is no written response to this letter in the record before me. Mr. Da Silva’s evidence was that he decided to do nothing and move on as he did not want to upset his family.

56During his testimony at trial, Mr. Da Silva gave a different version of what happened in 2008. He said that he wanted to get equity from the Property in order to buy a house for his daughter. I note that this is inconsistent with the March 27, 2008 Letter which refers to a “business opportunity”. When Mr. Da Silva was cross-examined regarding this inconsistency, he stated that buying a house for his daughter was a possibility, but that it did not matter what he wanted to do with the funds because it made sense for him to get access to the equity in a house that was paid for.

57Mr. Da Silva stated that he asked his mother about obtaining credit against the Property, and she said something along the lines of “yes, of course, this is your house.” I note that this is also inconsistent with the March 27, 2008 Letter which states that Maria Da Silva was to get back to him after discussing with other members of the family.

58Mr. Da Silva’s evidence is that after his mother agreed, there was a family meeting, during which Ms. Gomes strongly opposed what Mr. Da Silva was proposing and said things that scared their mother. According to Mr. Da Silva, Maria Da Silva then changed her mind. She also told him that he would have to deal with his siblings with respect to the Property after her passing. Mr. Da Silva then decided not to push the issue of the line of credit further. This part of Mr. Da Silva’s evidence paints an incomplete picture of what happened and ignores the fact that Maria Da Silva obtained legal advice before sending him a letter in May 2008 setting out her position.

59In light of the foregoing, I do not accept Mr. Da Silva’s evidence on the 2008 events as it is inconsistent with the documentary evidence. I specifically reject the suggestion that his mother told him in 2008 that the Property was his house. If Maria Da Silva believed in 2008 that the Property belonged 100% to Mr. Da Silva, the events of 2008 and the communications that were exchanged at that time would have been very different. I also note that Mr. Da Silva’s evidence that his mother told him that the Property was his house is inconsistent with: (a) his evidence that his mother told him in 2008 that he would have to deal with his siblings with respect to the Property after her passing; and (b) the March 27, 2008 Letter and the enclosed draft agreement which state that Mr. Da Silva only owns a portion of the Property.

7. 2012 events

60In 2012, Maria Da Silva went to see a lawyer regarding the Property. In November 2012, she transferred her 50% interest in the Property to herself, Ms. Gomes, Ms. Coelho, Mr. Da Silva and Tito as joint tenants. The lawyer who registered the transfer wrote that he had the authority to sign and register the document on behalf of all parties to the document.

61Mr. Da Silva’s evidence is that he only learnt about this transfer after it happened, that is, when he saw his siblings’ names on a subsequent tax bill. During his testimony, Mr. Da Silva reported conversations that he had with his mother after the transfer, and he suggested that his siblings had pressured his mother to make this transfer. However, while Mr. Da Silva alleges in his Statement of Defence and Counterclaim that the 2012 transfer is void, the only ground that is pleaded in this regard is that Maria Da Silva never had any beneficial interest in the Property.

8. Events after Maria Da Silva’s passing

62As stated above, Maria Da Silva passed away on January 3, 2009. Her will is dated January 25, 1980. In the event of her husband predeceasing her, she appoints Ms. Gomes and Tito as estate trustees, and gives the residue of her estate to her four children equally. Maria Da Silva’s will was never probated given that her interest in the Property was dealt with at the time of the 2012 transfer to her and her children as joint tenants.

63The siblings had a number of meetings after the passing of Maria Da Silva. They dealt with the contents of the house and discussed what they should do with the Property. In order to assist with their discussions regarding the Property, appraisals were prepared.

64The siblings also exchanged e-mails about the minutes of their meetings, what they were proposing and their recriminations. In an e-mail dated July 2, 2019 to Ms. Gomes, Ms. Coelho and Tito, Mr. Da Silva referred to the 2008 events and when he “was looking at borrowing from my 50% shares” of the Property.

65After Maria Da Silva’s passing, a transfer was registered to sever the joint tenancy between the siblings. Ms. Gomes, Ms. Coelho, Tito and Mr. Da Silva currently own their 50% interest in the Property as tenants in common, i.e.,12.5% each.

66On December 3, 2019, Ms. Coelho, who was a signing officer on the house account, withdrew $11,261.62 from the account. Her reason for doing so was that this amount represented 37.5% of the rents received in 2019, which is the ownership percentage of the Plaintiffs.

67Mr. Da Silva acknowledged during his testimony at trial that his view regarding the ownership of the Property completely changed after his current lawyer talked to him about the concept of resulting trust of which he was unaware.

9. Evidence of Mr. Constancio

68On March 22, 2019, Mr. Constancio wrote the following handwritten statement (“March 22, 2019 Statement”):

To Whom it may concern:

I Deodoro Constancio have been in real estate for over 45 years, was approached by Victor Silva to sell him a house. He wanted to buy the house jointly with his father Jose “Adolfo” Silva and his mother Bea. I advised him to buy the house for himself since he was the one putting up the money, as I know his parents had no means to even qualify for a mortgage. Victor Silva insisted that he want it [sic] to have the home jointly with his parents anyway, and so that is the way it was done.

I here certify that Victor Silva bought the home jointly with his parents.

69As stated above, Mr. Constancio is a distant cousin of the parties. He wrote this statement with the assistance of his wife after meeting Mr. Da Silva in a café and having a conversation with him about the issues that Mr. Da Silva was having with his siblings regarding the Property.

70Mr. Constancio was cross-examined on June 24, 2020. The cross-examination was recorded on video. Mr. Constancio said during his cross-examination that Jose Da Silva and Maria Da Silva never worked in Canada, which is inaccurate. He said that Mr. Da Silva signed the agreement of purchase and sale for the Property, which is inaccurate as well. Mr. Constancio also did not appear to have any basis or knowledge to say that: (a) Jose Da Silva and Maria Da Silva had no means to qualify for a mortgage; and (b) the money to purchase the Property came from Mr. Da Silva. Generally speaking, he did not remember anything about the relevant events at the time of his cross-examination.

71Medical records relating to Mr. Constancio were adduced in evidence. They contain an evaluation report that reveals that Mr. Constancio was diagnosed with vascular dementia in February 2017. The same evaluation report states that Mr. Constancio’s wife was of the view at that time (i.e., in February 2017) that there had been no change to Mr. Constancio’s long-term memory.

10. Work done by Mr. Da Silva

72At trial, Mr. Da Silva gave evidence about a list that he prepared regarding the work that he did on the Property over the years, i.e., from 1974 to 2012, and for which he says that he has not been paid. The list also includes an invoice in the amount of $30,510.00 for waterproofing work that he did in 2019 and for which he has not been reimbursed (“Lourimar Invoice”). The total amount for all the work on the list is $308,410.00.

73Mr. Da Silva’s position is that these amounts should have been paid to him from the house account. Therefore, he agrees that 50% of the amount that he is seeking as a reimbursement would come out of his share of the account.

74During his testimony, Mr. Da Silva explained that if he bought materials or retained the services of someone else when he was doing work on the Property, he would generally use funds from the house account to pay for the materials or services. The figures on the list that he prepared are mostly claims for the time that he spent.

75The three biggest figures on Mr. Da Silva’s list are the following:

1974 to 2012 – I maintain the property with general maintenance, snow removal, gardening, replacing light bulbs, painting the basement Each year $6,000.00 $228,000.00 Ginette’s [Ms, Robert’s] bookkeeping, banking, paying bills, colleting [sic] rent, outstanding rent collection – 20 years at $100.00 per month $ 24,000.00 Recent Lourimar invoice $ 30,510.00

76In cross-examination, Mr. Da Silva explained that the $228,000 figure for maintenance was based on a percentage of income, more specifically 6%. This would mean that the Property would have generated $3.8 million in income between 1974 and 2012, i.e., an average of approximately $100,000 per year, which does not appear possible based on the record before me. I note, for instance, that: (a) the gross rents for the Property for 1980 were reported to be $4,560 on Mr. Da Silva’s income tax return; and (b) other documents produced by Mr. Da Silva indicate that the rent revenue for the Property was $37,242.00 in 2016 and $42,588.00 in 2018.

77Mr. Da Silva claims $24,000.00 for bookkeeping work done by Ms. Robert over a period of 20 years. It is unclear when this 20-year period starts. However, it is ultimately irrelevant because Ms. Robert is not a party to this action and Mr. Da Silva does not have standing to make a claim on her behalf. There is no evidence that Mr. Da Silva paid Ms. Robert for this work and that he is seeking to be reimbursed. There is also no evidence that Maria Da Silva and/or the Plaintiffs agreed to pay Ms. Robert to do this work. Ms. Coelho did bookkeeping work for free for many years in relation to the house account. Had it been made known to Maria Da Silva and the Plaintiffs that Ms. Robert wanted to charge $100.00 per month for this work, someone else in the family may have agreed to do it for free or for a lesser amount. In light of the foregoing, the claim for Ms. Robert’s bookkeeping work cannot be granted in this action and is not discussed further in these Reasons.

78After all his siblings were put on title in 2012, Mr. Da Silva started charging for his work on the Property. He prepared invoices which he sent to his mother. He was paid out of the house account for this work and associated expenses.

79The Lourimar Invoice is such an invoice. It is for the work done by Mr. Da Silva on waterproofing the foundation of the Property. Mr. Da Silva said that this work was done at his mother’s request, and that most of the work was done while his mother was still alive. However, he presented the invoice to his siblings after his mother’s passing, in March 2019.

80In support of his claim, Mr. Da Silva called Mr. Swift as a witness. Mr. Swift testified at trial that he moved into the Property as a tenant in February 1992. He first lived on the second floor and moved to the third floor in December 2005. His evidence was that during all these years, he only dealt with Mr. Da Silva, and that Mr. Da Silva did all the work. Mr. Swift acknowledged, however, that he worked during the day and he was not always at the Property.

11. Current situation between the parties

81Ms. Coelho’s evidence is that she has had no relationship with Mr. Da Silva since 1999. There are issues between her husband and Mr. Da Silva. She does not want to own a house with Mr. Da Silva.

82Similarly, Ms. Gomes has not had a good relationship with Mr. Da Silva since at least 2016, when Mr. Da Silva sued Ms. Gomes’ son. They also had issues “on and off” prior to 2016.

83Mr. Da Silva did not deny the unfortunate state of the family relationships. His position is not that he wants to remain a co-owner with his siblings. Rather, he wants to own the Property by himself.

84Ms. Robert has prepared an accounting for the Property for the period December 17, 2018 to May 26, 2021. According to Mr. Da Silva, all the money received in relation to the Property is in the bank account that he opened after Ms. Coelho took $11,261.62 from the house account in December 2019.

B. SUBMISSIONS OF THE PARTIES

1. Submissions on the Plaintiffs

85The Plaintiffs argue that since they are owners of the Property and not getting along with Mr. Da Silva, they are entitled to an order for partition and sale. They note that Mr. Da Silva has not adduced evidence in defence of their claim for partition and sale and that there is no evidence of oppressive conduct on the part of the Plaintiffs.

86With respect to Mr. Da Silva’s claim for a resulting trust, the Plaintiffs submit that the ten-year limitation period under the Real Property Limitations Act, R.S.O. 1990, c. L.15 (“RPLA”) started to run in 2008 and, as a result, Mr. Da Silva’s claim is out of time as it was commenced on December 10, 2019. They point out that Mr. Da Silva has known since at least 2008 that Maria Da Silva considered that part of the Property was hers. They argue that Mr. Da Silva’s right crystallized at that time because he was not allowed to put a mortgage or line of credit on the Property, and his mother told him that he would have to deal with his siblings after she was gone. If there was ever a trust, Mr. Da Silva had knowledge starting in 2008 that Maria Da Silva did not have the intention to honour it.

87With respect to Mr. Da Silva’s claims for work he allegedly did at the Property, the Plaintiffs’ position is that the two-year limitation period applies and, as a result, Mr. Da Silva’s claim for work done before 2012 is out of time.

88If Mr. Da Silva’s claim for a resulting trust is not statute-barred, the Plaintiffs state that this issue must be considered in light of section 13 of the Evidence Act, R.S.O. 1990, c. E.23, and that Mr. Da Silva’s evidence needs to be corroborated. They note that: (a) the agreement of purchase and sale for the Property was in the name of Jose Da Silva; (b) title was taken in the names of Jose Da Silva and Maria Da Silva (50%) and Victor Da Silva (50%); (c) the mortgage was in all three names; (d) the lawyer’s reporting letter is addressed to Mr. and Mrs. Jose Da Silva and Mr. Victor A.P. Da Silva; and (e) the lawyer’s reporting letter regarding the agreement to extend the mortgage was addressed to Mr. and Mrs. Jose Da Silva only (although the reporting letter regarding the discharge of the mortgage was addressed to Mr. Da Silva only).

89The Plaintiffs submit that there is no material corroborating evidence before the Court that Mr. Da Silva made the down payment for the Property in 1974 or that he made the lump sum payment for the mortgage in 1989. Their position is that the evidence of Mr. Constancio should not be accepted. They point out that he was diagnosed with dementia in 2017 and that he did not remember anything at the time of his cross-examination. They state that Mr. Constancio’s March 22, 2019 Statement is insufficient as Mr. Constancio does not set out in his letter how he came to know what he alleges he knows.

90The Plaintiffs also point out that there is no evidence of the intentions of Mr. Da Silva and their parents in 1974. Mr. Da Silva was not able to answer questions regarding his intent in 1974, and he stated that the money he paid for the Property was neither a loan nor a gift. The Plaintiffs note that evidence of the parties’ conduct after 1974 supports a 50-50 split, including the sharing of the surplus in the house account, the treatment of the net income from the Property in Mr. Da Silva’s income tax return, the 2008 events and correspondence, as well as correspondence sent by Mr. Da Silva after his mother’s passing.

91The Plaintiffs submit that since Mr. Da Silva does not have proof that he advanced funds to contribute to the purchase of the Property, there is no presumption of resulting trust. They argue that the evidence does not support the conclusion that Mr. Da Silva could have accumulated the necessary funds between 1971 and 1974.

92In the alternative, if the presumption of resulting trust applies, the Plaintiffs’ position is that it has been rebutted. They submit that even if Mr. Da Silva contributed funds, his contribution was a gift because it was made without any intention to impose conditions or requirements. They state that Mr. Da Silva’s intention at the time of the purchase of the Property was that he was to own 50% of the Property and his parents were to own 50% of the Property. This intention remained the same until some time in 2019, when Mr. Da Silva had a discussion about resulting trusts with his lawyer.

93The Plaintiffs also submit that for at least some of his claims, Mr. Da Silva is suing the wrong parties and that the proper party is the Estate of Maria Da Silva.

2. Submissions of the Defendant

94The Defendant states that the Plaintiffs have no knowledge as to whether their parents made any payments to purchase the Property, and they have not provided any evidence that their parents paid anything to discharge the mortgage. The Defendant submits that there would not have been enough money in the house account to pay the mortgage because the surpluses were paid out. He also points out that the bank passbooks of Jose Da Silva do not show any payments in 1989 that could relate to the discharge of the mortgage.

95It is the Defendant’s position that his evidence does not need corroboration under section 13 of the Evidence Act. He argues that section 13 only applies if a party relies on statements made by a deceased person. He also argues that section 13 does not apply to his counterclaim because his claim for a resulting trust is not on the basis that he is an heir.

96In any event, the Defendant states that he did his best to find corroboration, and that his evidence is corroborated by the evidence of Mr. Constancio, as well as the evidence showing that he had the ability to pay the required amounts and his parents did not.

97The Defendant refers to his earnings during the relevant years and states that he earned more than enough to make the down payment on the Property. The Statements of Remuneration Paid (T4) that he produced show that he earned more than $7,000.00 in 1971 and more than $9,500.00 in 1972. He notes that he made more than the official records show as he did additional work for cash. While the Defendant acknowledges that $3,000.00 of the down payment for the Property came from his father, he points out that he gave significantly more than $3,000.00 to his father before 1971.

98The Defendant states that he had the ability to make the payment to discharge the mortgage on his own in 1989, and he points out that we do not know the income of Jose Da Silva and Maria Da Silva.

99With respect to the evidence of Mr. Constancio, the Defendant argues that Mr. Constancio’s long-term memory was not affected at the time that he wrote the March 22, 2019 Statement, and that his condition deteriorated considerably between the time he wrote the March 22, 2019 Statement and the time that he was cross-examined.

100The Defendant submits that in light of the evidence, the presumption of resulting trust is triggered and has not been rebutted. He also submits that a $3,000.00 payment out of $47,000.00 is de minimis and that he should obtain 100% of the Property.

101The Defendant argues that while section 13 of the Evidence Act does not apply to his counterclaim, it applies to the Plaintiffs’ response to his counterclaim. He states that the Plaintiffs are “opposite parties” within the meaning of section 13 and that, as a result, a judgment in their favour in defence to Mr. Da Silva’s counterclaim cannot be maintained on the basis of their evidence alone. According to the Defendant, the Plaintiffs’ evidence requires corroboration, which they did not provide.

102The Defendant also argues that section 13 applies to the Plaintiffs’ claim for partition and sale because the Plaintiffs are claiming as heirs of Maria Da Silva. The Defendant submits that in order to be entitled to partition and sale, the Plaintiffs must show that they are beneficial owners of the Property and that they contributed money to the purchase price. The Defendant states that the Plaintiffs did not produce any corroborating independent evidence that their parents paid any part of the purchase price.

103In his closing submissions, the Defendant took the position that the presumption of resulting trust applies to the 2012 transfer because it was a gratuitous transfer by Maria Da Silva to her and her children. However, the Defendant has no standing to raise a claim of resulting trust on behalf of Maria Da Silva or her estate. Further, this is not pleaded in his Statement of Defence and Counterclaim. [2] Therefore, this argument does not need to be discussed further.

104The Defendant requests that he be given a first option to purchase the Property if an order for partition and sale is made. He relies on the case Mostovac v. Mostovac, 2010 ONSC 2593 at para. 56 (“Mostovac”). I note that in that case, the party who was given a first option to purchase the property had been residing in the property for almost six years: see Mostovac at para. 45. The Defendant argues that it would be apt to grant him a first option to purchase because he owns the largest part of the Property, he did all the work, and it was common ground during the discussions that took place after the death of Maria Da Silva that Mr. Da Silva would purchase the Property. The Defendant suggests that the three appraisals that were prepared in 2019 be used to determine the purchase price and states that there is no need to list the Property on the open market.

105The Defendant submits that his claims are not statute-barred. His position is that in order for the limitation period to start to run, one has to know that they have a claim. He argues that he did not know that he had a claim until he met with his lawyer in 2019. The Defendant also refers to cases that state that the defence of equitable set-off is not affected by the expiration of a statutory limitation period and states, more generally, that defences are not subject to limitation periods.

106Based on subsection 5(2) of the RPLA, the Defendant also submits that the limitation period did not start running until the death of Maria Da Silva.

C. DISCUSSION

107Because of its potential impact on the Plaintiffs’ claim for partition and sale, I will first discuss Mr. Da Silva’s claim for a resulting trust. The determination of this issue also requires a discussion of section 13 of the Evidence Act and the ten-year limitation period under the RPLA.

1. Resulting trust

i. Applicable legal principles – resulting trust

108The Supreme Court of Canada summarized as follows the principles applicable to a “purchase money resulting trust” in Nishi v. Rascal Trucking Ltd., 2013 SCC 33 at paras. 1-2 (“Nishi”):

A purchase money resulting trust arises when a person advances funds to contribute to the purchase price of property, but does not take legal title to that property. Where the person advancing the funds is unrelated to the person taking title, [3] the law presumes that the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution. This is called the presumption of resulting trust.

The presumption can be rebutted by evidence that at the time of the contribution, the person making the contribution intended to make a gift to the person taking title. While rebutting the presumption requires evidence of the intention of the person who advanced the funds at the time of the advance, after the fact evidence can be admitted so long as the trier of fact is careful to consider the possibility of self-serving changes in intention over time. [Emphasis in the original.]

109When there is no evidence of a gratuitous transfer, the presumption of resulting trust does not apply: see Gill v. Gill, 2022 ONSC 4610 at para. 33.

110As stated above, if the presumption of resulting trust applies, it can be rebutted by evidence that at the time of the contribution, the person making the contribution intended to make a gift to the person taking title. There is a gift at law when the evidence demonstrates that, at the time of the transfer, the transferor intended the transferee to hold the beneficial interest in the property being purchased: see Nishi at para. 37. A contribution to the purchase price without any intention to impose conditions or requirements is a legal gift: see Nishi at para. 31.

111The courts have developed a list of relevant factors to consider when determining whether advances from parents to children constitute a loan or a gift. The following factors have been identified:

a. whether there are any contemporaneous documents evidencing a loan; b. whether the manner of repayment is specified; c. whether there is security held for the loan; d. whether there are advances to one child and not others, or advances of unequal amounts to various children; e. whether there has been any demand for payment before the separation of the parties; f. whether there has been any partial repayment; and g. whether there was any expectation, or likelihood, of repayment.

See Locke v. Locke, 2000 BCSC 1300 at para. 20 and Chao v. Chao, 2017 ONCA 701 at para. 54.

112Except for factor (d), the factors above are useful to consider in this case, even though this case presents the reverse situation, i.e., an alleged advance by a child to his parents.

ii. Applicable legal principles – section 13 of the Evidence Act

113Section 13 of the Evidence Act 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.

114Section 13 addresses the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the living’s version of events: see Burns Estate v. Mellon (2000), 48 O.R. (3d) 641 at para. 5 (C.A.) (“Burns Estate”).

115The corroboration required under section 13 should be such as to enhance the probability of truth of the witness’ evidence upon a substantive part of the case raised by the pleadings, and must appreciably help the judicial mind to accept one or more of the material facts deposed to: see Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854 at para. 65 (“Brisco Estate”) and Botnick v. The Samuel and Bessie Orfus Family Foundation, 2011 ONSC 3043 at para. 16 (“Botnick”); aff’d by 2013 ONCA 225. The corroboration must be evidence independent of the evidence of the opposite or interested party, which shows that the opposite or interested party’s evidence on a material issue is true. The corroborating evidence can be either direct or circumstantial. It can consist of a single piece of evidence or several pieces considered cumulatively. See Burns Estate at para. 29, Botnick at paras. 13-16, and Moses v. Metzer, 2016 ONSC 1765 at para. 6.

iii. Section 13 of the Evidence Act applies to Mr. Da Silva’s claim for a resulting trust

116Mr. Da Silva argues, based on paragraph 63 of the Court of Appeal’s decision in Brisco Estate, that section 13 of the Evidence Act does not apply to his counterclaim because its application is limited to circumstances in which the interested party claims as an heir, next of kin, executor, administrator or assign. Mr. Da Silva points out that he did not commence his counterclaim in any capacity as an heir, next of kin, executor, administrator or assign of a deceased person.

117I reject this argument. The wording of section 13 is clear: section 13 applies to both an action by or against heirs, next of kin, executors, administrators or assigns. In the passage relied upon by Mr. Da Silva, the Court of Appeal only referred to a claim by an heir, etc., because this was the situation that it was dealing with in Brisco Estate. It is clear from the Court of Appeal’s reasons that it did not intend to delete the words in section 13 that also include claims against heirs, next of kin, executors, administrators or assigns. See Brisco Estate at para. 61. See also Burns Estate at para. 5.

118Mr. Da Silva’s counterclaim is a claim against the assigns of a deceased person, Maria Da Silva. The Plaintiffs are assigns of Maria Da Silva because property rights were transferred to them by Maria Da Silva. See definitions of “assign” and “assignee” in B.A. Garner, ed., Black’s Law Dictionary, 11th ed. (St. Paul, Minnesota: Thomson Reuters, 2019). Mr. Da Silva’s counterclaim is not against the Plaintiffs in their personal capacities, but in their capacities as assigns of Maria Da Silva because he argues that Maria Da Silva never was a beneficial owner of the Property and that, as a result, she had no interest in the Property to transfer to the Plaintiffs. Mr. Da Silva’s claim also puts into question Maria Da Silva’s interest in the Property as an assign of Jose Da Silva’s interest in the Property. For the purpose of this claim, the Plaintiffs are also assigns of Jose Da Silva through Maria Da Silva.

119As a result, Mr. Da Silva is an “opposite party” under section 13 and, as a result, he cannot obtain a judgment or decision on his own evidence in respect of any matter occurring before the deaths of Maria Da Silva and Jose Da Silva, unless such evidence is corroborated by some other material evidence.

iv. The presumption of resulting trust does not apply in this case

120I agree with the Plaintiffs that the presumption of resulting trust does not apply in this case because Mr. Da Silva has not established that he contributed more than 50% of the purchase price of the Property.

121There is no direct evidence before me as to who made the down payment with respect to the Property, except for Jose Da Silva’s bank passbook showing that a $3,000.00 cheque was debited on July 15, 1974, the closing date for the purchase of the Property. The total payment required was $25,103.78, which includes the $2,000.00 deposit. As discussed further below, the evidence before me does not allow me to conclude that Mr. Da Silva paid any part of this amount.

122I note that in his Statement of Defence and Counterclaim, Mr. Da Silva alleges that he paid the entire down payment for the Property. This is contradicted by the bank records showing that Jose Da Silva wrote a $3,000.00 cheque on the closing date. This undermines the credibility and reliability of Mr. Da Silva’s position and evidence regarding the payment of the purchase price.

123I also note that Mr. Da Silva had a poor memory of the events, which is understandable given the number of years that have elapsed since the purchase of the Property. However, the fact that he did not have a good memory further undermines the reliability of his evidence. In addition, Mr. Da Silva’s evidence regarding his intention and his conversations with his father at the time of the transfer was all over the place, not cogent and lacked in clarity. He was very resistant to questions about the manner in which title to the Property was taken and his prior statements acknowledging that he only owned part of the Property, no doubt because they are inconsistent with his current theory of the case. This also affects the credibility and reliability of his evidence.

124I am not satisfied that Mr. Da Silva has established that he had the necessary funds in 1974 to pay the balance of the down payment, i.e., $22,103.78 ($25,103.78 - $3,000.00). Among other things:

a. Mr. Da Silva would not have been able to save money until 1972 because his evidence is that he gave all of his earnings to his father between 1966 and 1971. I also note that he took welding courses at George Brown College during that period of time. b. Mr. Da Silva cannot argue that the pay cheques that he gave to his parents before 1972 remained his money. Once the money was given to Mr. Da Silva’s parents, the money became their money. See Andrade v. Andrade, 2016 ONCA 368 at para. 46. c. Mr. Da Silva’s Statements of Remuneration Paid (T4) show that he earned more than $9,500.00 in 1972. Mr. Da Silva does not remember how much he earned in 1973 and 1974. His Canada Pension Plan Statement of Contributions suggests that he earned $5,456.00 in 1973 and more than $6,600 (which was the maximum amount of pensionable earnings) in 1974. d. However, I have little or no evidence regarding Mr. Da Silva’s expenses in 1972-1974 and how much money he would realistically have been able to save after paying income tax and living expenses. e. Any savings would have been reduced when he spent $4,200 cash in 1972 to buy a Mustang. f. Mr. Da Silva bought a cottage in the late 1970s and he would have needed to have savings to make a down payment at the time of the purchase.

125In light of the foregoing, I cannot find on the balance of probabilities that Mr. Da Silva had more than $20,000.00 available in July 1974.

126I am also not satisfied that Mr. Da Silva has established that his parents did not have the necessary funds to pay their 50% portion of the down payment ($12,551.89) minus the $3,000.00 cheque made by Jose Da Silva on the closing date, i.e., $9,551.89. Among other things:

a. There is no evidence before me as to how much Jose Da Silva and Maria Da Silva were earning at the relevant time, although there is evidence that they were working. b. I have little or no evidence regarding the expenses of Jose Da Silva and Maria Da Silva at the relevant time. However, it is my view that Jose Da Silva and Maria Da Silva would likely have been able to save some money from their children’s earnings which were paid to them, including Mr. Da Silva’s earnings between 1966 and 1971 (notably, more than $7,000.00 in 1971), and Ms. Coelho’s and Tito’s earnings between 1970 and 1972. c. Jose Da Silva and Maria Da Silva had assets in Portugal, including the properties that were divided among their children after Jose Da Silva’s death. Given that Maria Da Silva sold assets and wound down the business after Jose Da Silva left for Canada, there is a real possibility that cash was available. [4] d. While I have bank records for some of the bank accounts that Jose Da Silva had in Canada for the relevant period of time, I do not have all of them. I note that for one of the bank accounts that Jose Da Silva had at CIBC, there is no bank passbook before 1980 in evidence. However, it is clear from the bank passbook for that account that this was not the first passbook and that the account previously existed. The passbook indicates that as of May 1980, Jose Da Silva had more than $14,000 in his account. I also note that $18,000.00 was withdrawn from this account in August 1981. It is possible that Jose Da Silva may have had funds in this bank account in 1974. e. I do not have any bank records for Maria Da Silva’s account. I also do not have bank records for the house account at the relevant time, except for a cheque to the mortgagees in the amount of $915.63 dated July 15, 1989 that was prepared by Ms. Coelho and signed by Maria Da Silva. This is from an account at the Bank of Nova Scotia.

127In light of the evidence available, I cannot conclude one way or the other whether Jose Da Silva and Maria Da Silva would or would not have been able to pay $9,551.89 on July 15, 1974.

128I do not give any weight to the evidence of Mr. Constancio. Even if I were to accept that he did not have any memory issues when he wrote the March 22, 2019 Statement, the March 22, 2019 Statement is problematic for a number of reasons, including the following:

a. The March 22, 2019 Statement was written approximately 45 years after the purchase of the Property. Mr. Constancio was a real estate agent and likely had numerous real estate transactions every year. Even someone who does not have dementia would have difficulty remembering a particular transaction that took place 45 years ago. Further, Mr. Constancio wrote the March 22, 2019 Statement after having a conversation with Mr. Da Silva during which Mr. Da Silva told him about the issues that he was having with his siblings regarding the Property. In my view, it is very likely that any “recollection” that Mr. Constancio may have had in March 2019 was influenced by his conversation with Mr. Da Silva. b. A number of the statements in the March 22, 2019 Statement are hearsay. Among other things, Mr. Constancio would have had no direct knowledge about the financial resources available to Jose Da Silva and Maria Da Silva at the relevant time. Further, there is no basis in the evidence before me for Mr. Constancio’s statement that Jose Da Silva and Maria Da Silva could not qualify for a mortgage. No one suggested that they – or Mr. Da Silva – had tried to obtain a mortgage from a financial institution. In fact, they obtained a vendor take-back mortgage. c. Mr. Constancio made statements during his cross-examination that confirmed that he had no or inaccurate knowledge and recollection regarding the transaction and the means of Jose Da Silva and Maria Da Silva.

129With respect to the payment of the mortgage in 1989 in the amount of $22,700.00, I note that Jose Da Silva had more than $8,000.00 in one bank account and more than $13,000.00 in a different bank account at that time. Thus, he would have had funds available to contribute to the mortgage payment (at least for 50% of the amount owed – $11,350.00) had the funds in the house account been insufficient for that purpose.

130Mr. Da Silva’s evidence regarding the payment of the mortgage in 1989 is vague, unsupported, and does not appear to be based on a true and independent recollection of the events. Even if, as Mr. Da Silva believes, there were insufficient funds in the house account to pay the full amount of the mortgage in 1989, it is highly unlikely that whatever amount was in the house account would not have been used to pay part of the mortgage and that, instead, Mr. Da Silva would have paid the full $22,700.00. On the issue of the payment of the mortgage, I prefer Ms. Coelho’s evidence that the mortgage was paid out by certified cheque from the house account. Ms. Coelho was involved in managing the house account at the relevant time.

131In light of the foregoing, even without applying section 13 of the Evidence Act, I find that Mr. Da Silva has not established on the balance of probabilities that he advanced more than 50% of the purchase price of the Property. As a result, the presumption of resulting trust does not apply. This conclusion is reinforced when considering the requirements under section 13 of the Evidence Act. Mr. Da Silva’s evidence is generally uncorroborated. The little independent “corroborative” evidence available – T4 slips and other tax documents, March 22, 2019 Statement – raises more questions than answers, is insufficient, does not enhance the probability of the truth of Mr. Da Silva’s evidence upon a substantive part of the case, and does not appreciably help the judicial mind to accept the material facts deposed to.

132Even if the presumption of resulting trust had been triggered, I would have found that it was rebutted. Mr. Da Silva’s own evidence shows that, at the time of the transfer, he intended his parents to hold the beneficial interest in 50% of the Property. Mr. Da Silva stated a number of times at trial that his alleged payments toward the purchase of the Property were neither a loan nor a gift. However, as noted by the Supreme Court of Canada in Nishi, a contribution to the purchase price without any intention to impose conditions or requirements is a legal gift. There is no evidence that any conditions or requirements were imposed by Mr. Da Silva in 1974. In fact, from 1974 to 2019, and most notably in 2008, the conduct of Mr. Da Silva and his parents was consistent with each of them holding a 50% beneficial interest in the Property. Their conduct was not consistent with Mr. Da Silva being the only beneficial owner of the Property.

133In addition, Mr. Da Silva made numerous statements in writing about owning 50% of the Property and his mother owning the other 50%. Mr. Da Silva never took the position that he was the owner of the Property before Maria Da Silva passed away. Several months after his mother died, i.e., in May and June 2019, Mr. Da Silva sent a number of communications stating that he and his late mother each owned 50% of the Property. In May and June 2019, he made offers to his siblings to purchase their 37.5% share of the Property.

134Further, when one considers the factors that the courts usually consider when determining whether advances from parents to children constitute a loan or a gift, the factors point to a gift:

a. There are no contemporaneous documents evidencing a loan or any conditions or requirements. b. The manner of repayment or the manner of return of the Property is not specified. c. Mr. Da Silva does not hold any security. d. There was no demand for payment or for the return of the Property before the death of Maria Da Silva. Mr. Da Silva’s request to obtain credit against his portion of the Property was refused by Maria Da Silva in 2008. e. There has not been any partial repayment. f. There is no evidence that there was any expectation or likelihood of repayment by Mr. Da Silva’s parents.

135In my view, Mr. Da Silva’s position in this litigation is an attempt to rewrite history arising from his frustration with his siblings after the death of their mother.

136There may have been some confusion on the part of Mr. Da Silva at some point as to whether he owned the Property with his parents as joint tenants or as tenants in common. In the past, he made statements (including sworn statements) that he believed that he held title jointly with his parents and would be the sole owner after they passed away. However, he also stated that in 2008, his mother told him that he would have to deal with his siblings with respect to the Property after her passing. This is inconsistent with the concept that he would become the sole owner of the Property after his mother’s death. When confronted with this inconsistency in cross-examination, Mr. Da Silva stated that he did not know if he believed that he would get the Property after his parents passed away. This is another example of the unreliability of Mr. Da Silva’s evidence.

137I note that there are communications from Mr. Da Silva in which he stated that his understanding was that Maria Da Silva’s will provided for her 50% interest in the Property to be shared among her four children. This is also inconsistent with the concept of joint tenancy.

138It is noteworthy that Mr. Da Silva purchased a number of properties over the years, including as co-owner with others (notably, Ms. Coelho’s husband with respect to the duplex). It is not credible that Mr. Da Silva would not have been explained the differences between joint tenants and tenants in common at some point.

139In my view, any confusion that Mr. Da Silva may have experienced as to how title was taken with respect to the Property would have been short-lived and dissipated before the death of Jose Da Silva. There is no evidence that any steps were taken or even discussed to change how Mr. Da Silva held title with his parents.

140Accordingly, Mr. Da Silva’s claim for a declaration that he is the beneficial owner of the Property and for rectification of the title register to delete all other interests is dismissed.

141As a result, I do not need to deal with the issue of the limitation period. Nevertheless, I will discuss it briefly.

v. The claim for a resulting trust is statute-barred

142Section 4 of the RPLA creates a ten-year limitation period for “an action to recover any land”. The words “to recover any land” mean to obtain any land by judgment of the Court and, consequently, they encompass claims for a declaration in respect of land and claims to the ownership of land advanced by way of resulting or constructive trust. See Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623 at paras. 31-32.

143I agree with the Plaintiffs that, if there was a resulting trust as a result of Mr. Da Silva not intending to give 50% of the Property to his parents in 1974, then Mr. Da Silva had knowledge starting in 2008 that Maria Da Silva did not have the intention to honour such a trust. If there was a resulting trust, her refusal to allow Mr. Da Silva to use the Property to obtain a line of credit would have been a violation of Mr. Da Silva’s rights under that trust, and Mr. Da Silva’s right to bring an action for the recovery of land would have accrued at that time. [5] However, Mr. Da Silva did nothing to advance his rights in 2008 and until after Maria Da Silva’s death in 2019. He did not take any steps despite the fact that his March 27, 2008 Letter states that he “will be forced to take appropriate action to obtain credit against my part of the ownership in the property”. Mr. Da Silva was aware that he could “take appropriate action”, but he chose not to enforce his alleged rights. This choice does not stop the running of the limitation period. See Sinclair v. Harris, 2018 ONSC 5718 at para. 29 and Khan v. Taji, 2020 ONSC 6704 at paras 64-77.

144Thus, Mr. Da Silva’s claim for a resulting trust became statute-barred in 2018, prior to the death of Maria Da Silva in January 2019.

145Subsections 5(1) and 5(2) of the RPLA, which postpone the commencement of the ten-year limitation period in certain circumstances, do not assist Mr. Da Silva. These provisions read as follows:

When right accrues on dispossession

5 (1) Where the person claiming such land or rent, or some person through whom that person claims, has, in respect of the estate or interest claimed, been in possession or in receipt of the profits of the land, or in receipt of the rent, and has, while entitled thereto, been dispossessed, or has discontinued such possession or receipt, the right to make an entry or distress or bring an action to recover the land or rent shall be deemed to have first accrued at the time of the dispossession or discontinuance of possession, or at the last time at which any such profits or rent were so received.

On death

(2) 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.

146Subsection 5(1) does not apply in this case. Mr. Da Silva was not in possession of the Property and did not receive more than 50% of the rent.

147Subsection 5(2) also does not apply. Mr. Da Silva is not advancing a claim on behalf of or through a deceased person. Rather, he is, for all intents and purposes, advancing a claim against a deceased person and her interest in the Property. The commencement of the limitation period regarding a claim attacking the interest of a person in a property is not postponed until the death of that person.

148Therefore, I find that Mr. Da Silva’s claim for a resulting trust is out of time and statute-barred.

2. Partition

149Now that I have found that Mr. Da Silva is not the 100% beneficial owner of the Property, I turn to the Plaintiffs’ claim for partition and sale.

150Section 2 of the Partition Act, R.S.O. 1990, c. P.4 states that all joint tenants and tenants in common “may be compelled to make or suffer partition or sale of the land”. There is a prima facie right to a partition or sale of lands, and the onus is on the party resisting partition or sale to demonstrate sufficient reasons for refusal. Only in exceptional circumstances will a joint tenant or tenant in common be denied their request that the property be partitioned or sold. The court’s discretion to refuse partition or sale is narrow, and is limited to circumstances of malice, oppression and vexatious intent. See Wise Enterprises Inc. v. J. Weiss Investments Limited, 2017 ONSC 5468 at paras. 7-8 and Economopoulos (Re), 2014 ONCA 687 at paras. 88-89.

151In this case, there is no evidence of malice, oppression or vexatious intent. The parties do not get along and have not been for some time. There are no exceptional circumstances and no basis for this Court to deny the request for partition and sale.

152I disagree with Mr. Da Silva’s argument that section 13 of the Evidence Act applies to the Plaintiffs’ claim for partition and sale. The Plaintiffs do not claim partition and sale as heirs, next of kin, executors, administrators or assigns of a deceased person. Rather, they have brought their claims as tenants in common, which they have been since 2012. [6] While Mr. Da Silva made a claim for a resulting trust in response to the Plaintiffs’ claim, this does not make the Plaintiffs’ claim a claim brought as heirs, next of kin, executors, administrators or assigns of a deceased person. In any event, I have already dismissed Mr. Da Silva’s claim that he was the only beneficial owner of the Property and that the title for the Property needed to be rectified. He had the burden to prove that claim and he did not discharge it.

153Accordingly, the Plaintiffs’ claim for partition and sale is granted. Although I was advised that the Honourable Mr. Colin Campbell had agreed earlier in the litigation to conduct the sale of the Property, there is no evidence before me that he is still prepared to do so. The Plaintiffs are to make the necessary inquiries. If it is necessary to find another person to conduct the sale, I encourage the parties to attempt to agree on someone. If the parties cannot agree, counsel are to contact my assistant to schedule a case conference before me.

154I see no reason to give Mr. Da Silva a first option to purchase the Property. Mr. Da Silva did not reside in the Property and his unsuccessful claim for a resulting trust delayed the sale of the Property. Further, Mr. Da Silva and his siblings do not get along and had disagreements, among other things, with respect to the appraisals that were prepared in 2019. In this context, ordering that Mr. Da Silva can purchase the Property “at fair market value” would be a recipe for more disputes and disagreements regarding the fair value of the Property and how it should be determined. Mr. Da Silva and the Plaintiffs are free to participate in the sale process and to make an offer to purchase the Property if they want to, but no one is entitled to a “first option”.

3. Accounting and set-off

155As owners of the Property, the Plaintiffs are entitled to an accounting for the income derived and the expenses incurred and/or paid with respect to the Property from January 1, 2019 to the date of this judgment. The Plaintiffs are also entitled to their respective shares of the net profits realized from the Property during that period. The fact that the Plaintiffs have already taken $11,261.62 in the house account needs to be taken into consideration.

156Mr. Da Silva claims equitable set-off with respect to the work that he did on the Property. A limitation period does not operate to preclude a defence of equitable set-off: see Canada Trustco Mortgage Co. v. Pierce at paras. 42-46 (Ont. C.A.) and Grand Financial Management Inc. v. Solemio Transportation Inc., 2016 ONCA 175 at para. 94.

157While legal set-off requires mutual debts, equitable set-off can apply where the defendant claims a money sum that: (a) arises out of the same contract or series of events that gave rise to the plaintiff’s claim, or (b) is closely connected with that contract or series of events: see Canaccord Genuity Corp. v. Pilot, 2015 ONCA 716 at para. 57 (“Canaccord”). In Holt v. Telford, [1987] 2 S.C.R. 193 at 212, the Supreme Court of Canada noted the following five principles relevant to equitable set-off (see also Canaccord at para. 57):

a. The party relying on set-off must show some equitable ground for being protected from his adversary’s demands. b. That equitable ground must go to the very root of the plaintiff’s claim before a set-off will be allowed. c. A counterclaim must be so clearly connected with the plaintiff’s demand that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into consideration the counterclaim. d. The claim and counterclaim need not arise out of the same contract. e. Unliquidated claims are on the same footing as liquidated claims.

158In my view, Mr. Da Silva’s claim for work that he did on the Property prior to 2012 is not a claim or defence of equitable set-off. The Plaintiffs’ claim is principally for partition and sale and, secondarily, for payment of their share of the net profits realized from the Property after January 2019. Mr. Da Silva’s claim for work that he did on the Property prior to 2012, at a time when the Plaintiffs were not on title, does not arise out of the same contract or series of events that gave rise to the Plaintiffs’ claim, and is not closely connected with that contract or series of events. Any claim by Mr. Da Silva for work done prior to 2012 has nothing to do with the Plaintiffs’ right to ask for partition and sale. In addition, work done in the 1970s, 1980s and 1990s, before the Plaintiffs became owners of the Property, is not closely connected to the Plaintiffs’ right to share in the income from the Property after January 1, 2019.

159Further, I find that Mr. Da Silva does not have an equitable ground “for being protected from” the Plaintiffs’ claims and that his claim does not go “to the very root” of the Plaintiffs’ claims. Prior to this litigation, Mr. Da Silva never made a claim for the work that he did prior to 2012. When he started charging for his work on the Property in 2012, he did not prepare an invoice or charge for the work that he had previously done.

160Given that Mr. Da Silva’s claim for the work that he did on the Property prior to 2012 does not qualify as equitable set-off, the standard two-year limitation period applies to his claim. As a result, his claim is statute-barred. Mr. Da Silva would have known that he was not being paid for his work at the time the work was done or shortly thereafter. In addition, he would have known at the latest in 2012, when he started charging for his work on the Property, that he could ask for payment for such work. Since he was able to charge his mother for his work starting in 2012, there is no reason why he could not have charged her for prior work. Again, Mr. Da Silva chose not to make a claim, and this does not stop the limitation period.

161I also note that section 13 of the Evidence Act would apply to Mr. Da Silva’s claim for the work that he did before 2012, at a time when he was an equal owner of the Property with his parents and, after the passing of Jose Da Silva, with his mother. While Mr. Da Silva has put in evidence pictures of some of the work that he did, and Mr. Swift gave very general evidence about Mr. Da Silva doing work on the Property, there is no independent evidence before me supporting the reasonableness of the amounts claimed. Some of the amounts do not appear reasonable, notably the amount claimed for maintaining the Property between 1974 and 2012. In addition, there is no independent evidence before me regarding any agreement between Mr. Da Silva and Jose Da Silva and/or Maria Da Silva with respect to the work to be done on the Property and any remuneration to be paid to Mr. Da Silva in this regard.

162However, I am of the view that the reasoning above does not apply to the Lourimar Invoice in the amount of $30,510.00. The claim in relation to this invoice is not statute-barred. Further, the work was done with the knowledge of Maria Da Silva and at least some of the Plaintiffs, and at a time where the Plaintiffs were on title. It was also done at a time where Mr. Da Silva was invoicing for his work on the Property and was paid from the house account for such work. Mr. Da Silva presented the Lourimar Invoice to the Plaintiffs after his mother’s death, but the invoice was never paid and the Plaintiffs have not provided any reason for not paying it. In these circumstances, I find that Mr. Da Silva is entitled to be paid $30,510.00 for the work set out in the Lourimar Invoice. This amount should be paid from the house account. If there are insufficient funds in the house account, this amount should be paid out of the sale proceeds of the Property, before the proceeds are distributed between the parties.

D. CONCLUSION

163I make the following orders:

a. an order for partition and sale of the Property;

b. an order that a third party conduct the sale of the Property and that the third party be vested with all the powers necessary to conduct the sale of the Property and transfer the title to the Property. The Plaintiffs are to make the necessary inquiries as to whether the Honourable Mr. Colin Campbell is still agreeable to conduct the sale. If it is necessary to find another person to conduct the sale, the parties are to attempt to agree on someone. If the parties cannot agree, counsel are to contact my assistant to schedule a case conference before me;

c. an order that the third party’s fees for conducting the sale of the Property be taken from the gross proceeds from the sale of the Property;

d. an order directing that the net proceeds of the sale of the Property be disbursed to the parties pursuant to the following percentage interests:

i. Eulalia Gomes: 12.5% ii. Nascimento Coelho: 12.5% iii. Tito Da Silva: 12.5% iv. Victor Da Silva: 62.5%

e. an order that the Defendant fully account to the Plaintiffs for the income derived, and the expenses incurred and/or paid with respect to the Property for the time commencing January 1, 2019 until the date of this judgment;

f. an order that the Defendant be paid $30,510.00 for the work set out in the Lourimar Invoice. This amount is to be paid from the house account. If there are insufficient funds in the house account, this amount should be paid out of the sale proceeds of the Property, before the proceeds are distributed between the parties;

g. an order directing the Defendant to pay to the Plaintiffs their share of the net profits realized from the Property for the time commencing January 1, 2019 until the date of this judgment, taking into account the fact that the Plaintiffs have already taken $11,261.62 in the house account, and/or that the amounts owed to the Plaintiffs be allocated to them from the Defendant’s share of the proceeds of the sale of the Property.

164I dismiss the Defendant’s claim for a resulting trust and a declaration that he is the beneficial owner of 100% of the Property. I also dismiss the Defendant’s claim in relation to the work that he did on the Property, except for the Lourimar Invoice.

165If costs cannot be agreed upon, the Plaintiffs shall deliver submissions of not more than four pages (double-spaced), excluding the bill of costs, by November 27, 2023. Mr. Da Silva shall deliver his responding submissions (with the same page limit) by December 11, 2023. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J.

Released: November 13, 2023

Footnotes:

1While there were some minor inconsistencies between the evidence of Ms. Coelho and Ms. Gomes about the 2008 events, they are not surprising given that the events took place 15 years ago and they are inconsequential to the issues in the case. It is not disputed that Maria Da Silva ultimately refused to allow Mr. Da Silva to obtain a line of credit against the Property.

2The Defendant pleads that the 2012 transfer was void and of no effect because Maria Da Silva never had any beneficial interest in the Property. He does not plead the presumption of resulting trust with respect to this transfer.

3The presumption of resulting trust applies to transfers amongst family members and the presumption of advancement does not apply in this case: see Pecore v. Pecore, 2007 SCC 17 at paras. 27-41; Andrade v. Andrade, 2016 ONCA 368 at para. 59; and Studzinski v. Studzinski, 2020 ONSC 2540 at para. 153.

4Mr. Da Silva suggested that Jose Da Silva had debts in Portugal, but this has not been established. It is unlikely that Jose Da Silva would still have had lands worth $500,000.00 in Portugal in 1998 if he had had significant debts in Portugal.

5Even though section 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, does not apply to this claim, I find that the discoverability factors set out in that provision were met at that time.

6While the transfer of Maria Da Silva’s interest in the Property in 2012 was made to her and her four children as joint tenants, Maria Da Silva and her four children held their joint 50% interest in the Property as tenants in common with Mr. Da Silva as 50% owner of the Property.