COURT FILE NO.: CV-19-615606
DATE: 20240105
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMSHID NAYYER
Plaintiff
– and –
DANPING WANG also known as LINDA WANG and SHI GANG NI also known as SIMON NI
Defendants
Joel E. Levitt, for the Plaintiff
David M. Goodman, for the Defendants
HEARD: November 14-20, 2023
PAPAGEORGIOU J.
Overview
[1] This is a case of "he said, they said."
[2] The Plaintiff Jamshid Nayyer ("Jamshid") is from Iran and is currently 79 years old. He has a Ph.D. in electrical engineering. When he came to Canada, he had life savings of approximately $500,000.
[3] The Defendants Danping Wang ("Linda") and Shi Gang Ni ("Simon") are married. Linda has a bachelor's degree from China and came to Canada in 2006 as a student. Linda and Simon got married in 2008. Linda is currently working as a real estate agent. Simon had previously been involved in renovation. He now assists Linda in buying and selling properties.
[4] Jamshid met Linda's mother Grace Wang ("Grace") in or around July 2011 when Grace came to Canada for Linda's graduation. They agreed to marry and Jamshid agreed to sponsor Grace's landed immigrant application in Canada.
[5] The parties all lived together over a number of years in homes owned by Linda and Simon, first at 29 Fanshawe Drive (the "Fanshawe Property"), and later at 23 Spruceview Place (the "Spruceview Property").
[6] Jamshid alleges that he entered into an oral agreement with the Defendants to receive a 20-percent beneficial interest in the Fanshawe Property, which was then rolled into a 20-percent interest in the Spruceview Property in exchange for payments towards their purchase price and some maintenance costs that Linda asked Jamshid to pay. He alleges that the parties ultimately agreed that he could exchange his interest in the Spruceview Property for a condominium owned solely by Linda, at 3 Everson Drive (the "Everson Property").
[7] After Jamshid and Grace separated in 2018, Jamshid demanded conveyance of the Everson Property as per their final agreement but Linda refused to convey it.
[8] Jamshid claims damages for breach of contract in the amount of $555,000 representing the value of the Everson Property, or alternatively damages based upon unjust enrichment.
[9] Linda and Simon deny any agreements alleged by Jamshid.
Decision
[10] For the reasons that follow, I am awarding damages to Jamshid in the amount of $555,000 as against Linda Wang only. I am dismissing the case as against Simon Ni.
Issues
[11] In arriving at my decision, I have considered the following issues:
Issue 1: Has Jamshid established that he entered into agreements with Linda and/or Simon to obtain a 20-percent interest in the Fanshawe Property, which was then converted to a 20-percent interest in the Spruceview Property?
Issue 2: Has Jamshid established that he entered into an agreement with Linda and/or Simon such that his 20-percent interest in the Spruceview Property would be exchanged for ownership of the Everson Property?
Issue 3: Is the agreement in respect of the Everson Property unenforceable because of the Statute of Frauds, R.S.O. 1990, c. S.19?
Issue 4: What are Jamshid's contract damages?
Issue 5: If the contractual claim cannot be enforced, is Jamshid entitled to payment of $555,000 as a remedy for unjust enrichment?
Analysis
The trial evidence and credibility
[12] Prior to addressing the issues, I set out here details regarding the trial and credibility issues.
[13] There were four witnesses at trial: Jamshid on his own behalf, and Linda, Simon and Grace on behalf of the Defendants.
[14] Each side alleged that the other had created "stories" and were not being truthful. Linda called Jamshid a "liar" in a particularly aggressive manner throughout the trial.
[15] However, notwithstanding these accusations by Linda, and also conceding that there are some credibility issues on both sides, the overwhelming bulk of the contemporaneous documents support Jamshid's position that he entered into the agreements in question and made payments to Linda in respect of them. These payments are related in time to the transactions that he alleges.
[16] There are bank drafts or checks which document payments to Linda from Jamshid in the amount of approximately $287,866, and which Linda and Simon had to explain.
[17] Linda and Simon offered three primary explanations for the payments supported by bank drafts or checks:[^1]
a. $100,000 of these payments were in respect of a dowry which Jamshid promised Grace when they married.
b. A further $36,866 was in respect of monies owed by Grace to Linda related to properties in China and which Jamshid agreed to pay. The total amount of the alleged debt was $100,000 and the Defendants say this $36,866 was in respect of ongoing payments of interest and capital.
c. A further $151,000 was for rent which Linda and Simon say they charged Jamshid and Grace, in the amount of $3,500 per month throughout the time they lived together at any residence.
[18] Jamshid also made cash payments in the amount of $90,000 which Linda and Simon deny.
[19] Grace also supported Linda and Simon's position.
[20] I am attaching a schedule prepared by counsel which summarizes the various payments alleged, whether they are supported by a check or bank draft, and the position that both sides have with respect to each of these payments.
[21] The positions of the parties are so far apart that this is not a case where there might have been misunderstandings that lead to this dispute.
[22] Thus, credibility was clearly a central issue in this case.
[23] Linda and Simon's explanations lack both documentary support as well as logical consistency with the chronology of events and the contemporaneous documents that do exist.
[24] Despite the fact that the Defendants had three witnesses (Simon, Linda and Grace), all of whom testified regarding facts that would support the Defendants' position, I do not believe them; their evidence is not in harmony with the preponderance of probabilities that exist taking into account all of the documents and the timing of events. See Justice O'Halloran's comments in Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 357, regarding credibility.
[25] In contrast, Jamshid's evidence is more believable because it is more consistent with the contemporaneous documents and chronology.
[26] As well, Jamshid testified in a clear, cogent and consistent manner. He did not waver or have to waver when he was cross-examined or change his evidence in response to questions. Evidence which is truthful tends naturally to be consistent with other evidence that may be presented to a witness. Further, when cross-examined he was respectful, not argumentative and he answered the questions asked directly.
[27] Simon and Linda's testimony was inconsistent with each other's and Grace's, and inconsistent internally. Linda in particular was evasive and gave shifting explanations. She seemed to be making things up as the cross-examination illustrated the improbability of what she was saying. She was not respectful, did not answer questions directly, and was argumentative.
[28] Simon was also evasive and failed to answer simple questions with direct answers. He also sought to distance himself from all of these events by testifying that his memory was not very good because of his health issues. Although he supported Linda's evidence, he said that it was Linda who made all the arrangements with Jamshid.
[29] I add that Simon and Linda admitted that they do not properly report their income to the Canada Revenue Agency (the "CRA"), and so they come into this trial already admitting that they are prepared to be dishonest for their own financial purposes.
[30] Grace was also not believable. Her evidence appeared to be rehearsed. For example, a few minutes into her examination in-chief, she was asked a simple question as to why she agreed to marry Jamshid. Her answer to this simple question was that Jamshid agreed to sponsor her, that he was 15 years older than her and that because of concerns about how he could support her, Jamshid agreed to give her $100,000 which she could deposit in her bank account to be used at her free disposal. Most of this was not required by the question, but it was something the Defendants needed her to say to support their defence. In my view, this is why she gave such an elaborate and unresponsive answer to a simple question right off the bat.
[31] At one point during her cross-examination, Grace even said she wanted to consult with Linda first before answering.
[32] Further, like Linda, she was argumentative.
[33] The Defendants could not get around the payments Jamshid made, which were well documented, and asserted far-fetched explanations as to why he would have paid these amounts.
[34] These explanations are not credible or believable for additional reasons as I will explain throughout this decision.
Issue 1: Has Jamshid established that he entered into agreements with Linda and Simon to obtain a 20-percent interest in the Fanshawe Property which was then converted to a 20-percent interest in the Spruceview Property?
The Fanshawe Property
[35] Grace came to Canada in or around 2011 and married Jamshid on March 29, 2012.
[36] After the marriage, they lived in an apartment on Sheppard Avenue that they rented for approximately $1,250 per month.
[37] On or about May 22, 2013, Simon and Linda entered into an agreement to purchase the Fanshawe Property for $860,000. They paid a $10,000 deposit at the time of the offer and a further $20,000 was required at a later date as part of the down payment.
[38] Jamshid says that Linda suggested that he could have a 20-percent interest in the Fanshawe Property if he paid 20 percent of the costs associated with the purchase. She advised him that there would be additional costs of approximately $40,000, making the total cost of the home $900,000; thus, he could have a 20-percent interest in the Fanshawe Property if he contributed $180,000.
[39] Consistent with Jamshid's evidence, the lawyer's fees for the closing, the land transfer costs and other closing costs added up to approximately $40,000.
[40] Jamshid also went to see the Fanshawe Property as part of this agreement.
[41] There is a bank draft from Jamshid to Linda in the amount of $60,000 dated May 29, 2013. This is the exact date that Linda paid the additional $20,000 towards the down payment. When Linda was shown her bank records that showed the timing of these payments, she was evasive and tried to suggest that the further $20,000 was paid earlier and in a manner other than through her bank account. She also said that the $20,000 debit reflected on her bank statement was money borrowed by a friend; however, she had highlighted both this $20,000 debit and the $60,000 payment from Jamshid on the bank statement that she submitted in this proceeding presumably because they were relevant to this proceeding.
[42] As well, the Defendants never provided any documentary evidence showing that they paid this additional $20,000 down payment in any other way than through Linda's bank account. Linda's bank statements for this period do not show any other debits for $20,000.
[43] Then, there is a further bank draft from Jamshid to Linda in the amount of $30,000 dated August 19, 2013, which was one day before the closing for the Fanshawe Property.
[44] Jamshid explained that he did not have sufficient funds in Canada to pay the balance of $90,000. He had significant funds in Iran, but it was difficult to transfer large funds to Canada. So, his sister would arrange to transfer funds to him when she could and he would in turn pay these funds in cash to Linda. He has provided receipts from money exchangers which support this evidence. The money transferred from Iran and converted to Canadian currency never quite equaled $10,000; the converted amount was approximately $9,000 or slightly more. He would top it up to $10,000 to give to Linda because he felt that a round number would be easier to keep track of; he had funds in Canada he could use for this purpose. He said he paid these funds on the day he received them.
[45] There are nine receipts from Money Exchangers which corroborate these transfers from Iran. Importantly, all of these occurred on a consistent basis after the closing.
[46] Linda testified that she was in China at the time Jamshid said he made two of these $10,000 cash payments and so could not have possibly received them. However, she did not have any documentary proof of this. She could have produced flight information or any number of documents that would have supported this prior to trial but did not. As I said, I found her not credible and so I do not accept her evidence.
[47] As well, while Simon and Linda denied outright receipt of these funds, Simon testified that they had a safe at home where they kept considerable cash from his business.
[48] Jamshid says he never asked for a receipt or to have title to the Fanshawe Property because they were family and he trusted Linda completely.
[49] There are also other payments made by Jamshid to Linda in respect of his share of Fanshawe Property expenses made at Linda's request. Contemporaneous records support this:
• November 27, 2014: $4,000 for Jamshid's 20-percent share of the cost of driveway renovation. The bank draft specifically says it is for "the cost of driveway".
• April 15, 2015: $20,000 for his share of other renovations. The bank draft specifically states that it is for "house share". Linda initially agreed that after they purchased the Fanshawe Property they renovated it. When confronted with this bank draft, she then changed her story and said the renovation had already been completed before they moved into the Fanshawe Property in August 2013. Simon's evidence was inconsistent with Linda's ultimate position on this issue. He testified that they did do some renovation including changing the kitchen and washroom floors as well as painting. No receipts for this renovation were produced.
• July 6, 2015: $635 for taxes which Linda asked him to pay. The bank draft specifically says it is for house tax. Linda explained that this payment was for immigration purposes but provided no documentary support for this assertion and no explanation as to why this payment was required at that time or particulars of what it was for.
The Defendant's Evidence that the payments in the amount of $60,000 and $30,000 above were in respect of a dowry for Grace is unsupported and inconsistent with the contemporaneous documents.
[50] Linda, Simon and Grace all testified that the two bank drafts made in May and August 2013 in the amounts of $30,000 and $60,000 were part of a dowry that Jamshid agreed to pay Grace, the total amount of which was $100,000. However, the marriage took place in March 2012. There is no explanation as to why payments in respect of this alleged dowry would have taken place more than a year after the wedding.
[51] Instead, as set out above, these bank drafts were made on dates related to the purchase of the Fanshawe Property.
[52] As well, Linda and Grace admitted that Grace and Jamshid were engaged and married under Islamic tradition at an Islamic Iranian Centre. The certificate of solemnization of marriage states that the gifts being given to Grace for the marriage were a Koran and a gold band. The marriage certificate and sponsorship application signed by Grace make no mention of any additional dowry.
[53] Further, the alleged dowry payments were made directly to Linda, not Grace.
[54] Linda's explanation as to why the payments were made to her makes little sense. She said that Grace could not obtain a bank account at the time because of her status in Canada and had asked her to invest these funds. However, Grace had a joint bank account with Jamshid as of 2011 and this is documented. Jamshid testified there was never any difficulty with Grace opening this account with him.
[55] Then, Linda made a distinction between ordinary bank accounts and investment accounts, saying her mother could not open an investment account because of her status. But there is no independent evidence of this.
[56] Linda testified that she put these funds into her own personal account and a joint account shared with her mother. Then, in 2018, she transferred all of these funds to Grace when she was able to get her own bank account. There is only evidence of one account opened in Linda and Grace's name in December 2014, which shows total investments of $120,000. The timing of this account does not match the dates when Linda received these funds, which were received more than a year and four months prior to this account being opened. Also, there is no documentation evidencing any ultimate transfer to Grace of this amount.
[57] As well, Grace's evidence as to what happened in 2018 is inconsistent with Linda's. Grace testified that all but $10,000 of this money invested by Linda was lost by Linda in the stock market. This is inconsistent with Linda's evidence that she transferred these funds to Grace in 2018. There is no documentation supporting this loss in the stock market, either. I add that the only document evidencing this alleged investment showed that the monies were conservatively invested into mutual funds, with $80,000 of these funds being invested in the "RBC Select Very Conservative Portfolio" and "RBC Select Conservative Portfolio". It makes little sense that all of these conservative investments were lost without any documentary proof or further explanation as to why.
[58] Finally, Linda testified that the final $10,000 of this dowry was paid on April 26, 2016, with reference to one of the bank drafts. There is no explanation as to why this would have been paid more than four years after the wedding.
The lease agreement alleged by Jamshid in the amount of $690 per month is supported by the documents. The alleged lease agreement in the amount of $3,500 per month alleged by Linda and Simon is not credible, believable or supported by the contemporaneous documents.
[59] Jamshid testified that in or around August 2013, the parties agreed that Grace and he would move into the Fanshawe Property.
[60] Linda said that he would have to contribute something towards the mortgage, which they determined would be $690 per month. Even though he was an owner according to him, this would be logical since Linda and Simon paid the mortgage and expenses and it would make no sense for Jamshid and Grace to live there for free even if Jamshid had an ownership interest.
[61] Linda and Simon testified that there was indeed an agreement that Grace and Jamshid pay rent, but the quantum was $3,500 per month. They said this included two bedrooms, food, cleaning, utilities and repair work in the house. Linda said that part of this also involved providing care in the case of any health emergencies because her mother does not speak English. This was another area where the Defendants strained to find some justification for allegedly charging such a high rent, when Jamshid and Linda had been living in a rented apartment for $1,250 per month and had prepared a monthly budget for expenses in the amount of $2,900 per month.
[62] However, there is no lease agreement in respect of the alleged $3,500 lease, but there is a lease agreement dated August 15, 2013 between the parties whereby Grace and Jamshid would pay $690 per month in rent, consistent with Jamshid's evidence (the "August 2013 Lease").
[63] As well, there is not a single payment of $3,500 made by Jamshid to Linda over the many years the parties resided together. Linda explained that this was because Jamshid was always in arrears and instead made large lump sum payments. While there are significant sums reflected in additional and large bank drafts payable to Linda, not a single one of these bank drafts is a multiple of $3,500 either.
[64] In contrast, there are bank drafts from the outset showing that Jamshid paid $690 per month to Linda by way of lump sum payments for six months at a time (and in one instance for nine months). The first payment is dated February 2014, which is exactly six months after the date of the August 2013 Lease, and is thus consistent with Jamshid's evidence.
[65] Some of these bank drafts specifically have handwritten notations on them stating that the payment was for the Fanshawe Property mortgage or rent. There is a minor issue as to the amount of these drafts which I find immaterial. Six months' rent according to the August 2013 Lease was $4,140. Some of the bank drafts were for $4,143. Jamshid's understanding was that the bank charged him $3 for the drafts and that this was reflected on the bank draft as also having come out of his account initially, although at some point they stopped charging him this fee. This does not make sense, but I do not find this $3 difference material. I infer that there was some mistake in the amount which no one noticed.
[66] The total payments that Linda admits she received in these bank drafts is $26,866. This is remarkably close to $26,910, which is the result of multiplying $690 by the 39 months during which Jamshid and Grace resided with Linda and Simon.
[67] The Defendants made much of the $690 for rent being unreasonable given that Jamshid was paying $1,250 per month for their rental unit at Sheppard Avenue. However, Simon specifically testified that one of the reasons they agreed to Jamshid and Grace moving in with them was it was better for childcare, clearly implying that Grace and Jamshid assisted with childcare. As well, Jamshid and Grace did not have any separate residence within the home. They lived in the house with Linda and Simon sharing all facilities. So, it makes some sense for them to pay a reduced amount because they were not paid for childcare and did not have a separate residence.
[68] This is another significant inconsistency. When Grace testified, she said that she provided no childcare, that she did not know how to do it, and that Linda was home providing childcare herself. This conflicts with Simon's evidence..
[69] Furthermore, as will be seen the parties ultimately stopped living together because of a dispute that Simon had with Grace about childcare. Simon and Linda actually moved out for four months because of this dispute.
[70] There is much more that casts doubt on Linda and Simon's credibility with respect to the August 2013 Lease.
[71] After this action was commenced, Linda reported the August 2013 Lease to the police as a forgery. Grace had also signed the August 2013 Lease, and as she attended with Linda to the police station, I infer that she must have known what the police visit was for.
[72] Two weeks before the trial was originally scheduled to proceed in May 2023, Linda corrected her answer and agreed that she signed the August 2013 Lease. During her trial evidence, she insisted that Jamshid had prepared this lease agreement for immigration purposes and asked her to sign it.
[73] At trial, she could not explain how she could have forgotten about signing it or how she had been unable to recognize her own signature. She simply said that she remembered it "suddenly". This also conflicts with Simon's evidence that Chinese signatures are easy to recognize because they are so particular.
[74] As well, at trial when Grace was shown this lease, she had little difficulty recognizing both her and Linda's signature. Then, she was extremely evasive when questions were asked about the report she and Linda made to the police. She insisted that she did not recall anything about the police report.
[75] It is not believable that both Linda and Grace participated in what they allege was an immigration fraud and did not recognize their own signatures.
[76] As well, Linda could not explain how Jamshid, someone who had never purchased property in North America, would have been able to create this lease, compared to Linda who was studying to become a real estate agent.
[77] When counsel began this line of cross-examination, Linda was evasive. She said that she could not remember exactly when she was studying to become a real estate agent but that it was 2014 or 2015.
[78] She insisted that at the time the August 2013 Lease was signed, she was ignorant of such matters. Even if Linda did not become a real estate agent until 2014 or 2015, she admitted that beginning in 2008 she and Simon began purchasing properties. There are rent rolls going back to 2012 that show that they collected rent beginning in 2012. I infer that they collected rent before that time as well, because they owned a number of properties but would have only lived in one. It stretches credulity that Linda would have been ignorant of leasing documents in 2013 as she testified given these activities.
[79] Further, if Linda and Simon's evidence about the agreement to pay $3,500 in rent was true, there was no reason for Jamshid to fabricate a lease in the amount of $690 to prove to Canadian immigration services that they were a genuine couple residing together paying rent. They could have just used the $3,500 figure in the written lease.
[80] Further, although Linda kept contemporaneous, meticulous records on a rent roll for a number of properties she and Simon owned, this alleged rental agreement for $3,500 was not part of such documentation or on these rent rolls for the years she says Jamshid and Grace were supposed to pay $3,500 in rent.
[81] When cross-examined, Linda indicated that this was because they were always behind in payments and she never knew when they would pay. But this does not explain why she would not keep track of the expenses at least. Then, Linda said that in fact the $3,500 did not even cover expenses because of everything she paid on Grace and Jamshid's behalf. She provided no documentary proof that this was the case. If expenses did exceed this income, it still would have been useful to keep track of this to lower the Defendants' overall income on their taxes.
[82] Further, Jamshid and Grace resided with Linda and Simon for 39 months. Yet, the lump sum payments that Linda attributes to these arrears of rent total $151,000, which when divided by $3,500, equals 43 months.
[83] Further, the first lump sum payments that Linda attributes to this monthly amount of $3,500 per month was a lump sum payment on April 15, 2015. That was almost two years after the parties started living together. It is not believable that they would have waited so long to collect any rent; in contrast, the $690 that Jamshid says they were paying started being paid almost immediately.
[84] Finally, as part of the support for this alleged agreement to pay rent in the amount of $3,500, Linda provided handwritten notes that she says she created in August 2013 when the sale of the Fanshawe Property closed, called "Rent Notes". These notes purported to list all the rent that should have been paid each year and then took into account lump sum payments she says were in respect of the $3,500 rent Jamshid was required to pay. She initially said that she created this contemporaneously but then backed away from that testimony. I did not find this at all credible considering the rent rolls omitted any reference to this.
The $100,000 debt alleged by Linda to explain the $690 payments made by Jamshid is not credible, believable or supported by any contemporaneous documents.
[85] Linda explained that she owned properties in Beijing when she came to Canada and asked Grace to act on her behalf and collect the rent, which was held in Grace's bank account in Beijing.
[86] She testified that in 2011 when Grace came to Canada, the rent from these properties in China had accumulated to $100,000. Her mother used this money to buy a small property in China. Her mother gave her an IOU (which has not been produced) and said that when she went back to China, she would sell that property in China and pay Linda back. However, after Grace married Jamshid, they told Linda that they wanted to take over that small property in her mother's name in China. They did not have enough money at the time. Grace proposed that they would pay Linda back as a loan.
[87] Grace's evidence was inconsistent with Linda's. Grace said that there was a property in Beijing that Linda owned that she and Jamshid talked about keeping so they could spend half a year in Beijing and half a year in Canada. They did not have money and so a loan was arranged at the bank rate. When Grace returned to China in 2015, Linda wanted her to sell this property which she did. However, not all of the money was brought back to Canada. $38,000 was remitted to Linda. Part of the money was used for her father's funeral expenses; the balance was invested in the stock market in China. It was unclear for how much this property was allegedly sold but Grace ultimately said that she was able to invest $100,000 in the Chinese stock market. It is also odd that Grace does not speak any English and yet she talked about the sale price of this property in China and investment in the Chinese stock market in terms of Canadian dollars and not yen.
[88] As well, there is absolutely no documentation supporting any of this.
[89] With respect to the interest rate, Linda testified that they agreed to an interest rate of 3.02 percent and that the $690 per month in payments made by Jamshid were in respect of that loan. There is no evidence before me that 3.02 percent was the bank interest rate at that time, which is Grace's evidence. I pause here to remark on the unusual interest rate, which makes some sense if it has been reverse engineered to explain the payments that Jamshid made in the amount of $690 per month.
[90] When Linda was examined for discovery, she was asked how they had arrived at the figure of $690 per month. She said that she and Jamshid used an online calculator. She was asked if she had a copy of the statement she obtained from the online calculator at the time. In her answers to undertaking she produced an undated photocopy of a printout from an online mortgage calculator with Linda's handwritten notation at the top which stated: February 2012. It shows that the monthly payment for a $100,000 loan amortized for 15 years at an interest rate of 3.02 percent would be $690.64 per month. The defendants argue that using multiples of 690.64 is closer to the ultimate calculation of the amount of the bank drafts that Jamshid said were for rent, and that using this number is a better explanation for the $3 difference in the bank drafts.
[91] There are many reasons why this alleged loan and explanation for the monthly $690 payments is not credible or believable.
i. Linda's mortgage calculator appears doctored.
[92] Jamshid went to the same website, input all the same information and got the same results. However, the document that he printed out specifically provided at its top the website address as well as the date when the document was printed on the bottom right-hand corner. The photocopy of the mortgage calculator provided by Linda from the exact same website has that information cut off. As well, the photocopy is crooked and there is a line across the bottom which customarily appears when someone tries to photocopy a document with information covered up.
[93] Linda admitted that the document produced by Jamshid is the way a browser would normally print off information downloaded from the internet.
[94] Linda then changed her evidence because it was apparent that the mortgage calculator she had provided as an answer to an undertaking had been doctored to remove information. She then said that the document she provided was something created after the litigation began.
[95] When confronted with the fact that her document did not include the information that would normally be there when printed from the internet, she gave evasive answers. She said that she does not know why it mattered and that the purpose of the document was not to show the date it was printed but how the loan payment figure of $690 came to be. If that was the case, why was the document photocopied to remove that information? She then said she did not recall and that she does not know how to litigate and all she did was provide a document she was asked to produce.
[96] The handwritten notation of "February 2012" is also problematic. Her evidence was that the alleged agreement with Jamshid to repay Grace's $100,000 debt was sometime in late 2013 or early 2014. When cross-examined about this, she first said that her handwritten notation of the date of February 2012 was not relevant, was just a "casual note" she put on the document that was not important. She then changed her evidence yet again and said that she must have meant to write down February 2014, but wrote February 2012 instead.
ii. There are inconsistencies between Linda's, Grace's and Simon's evidence.
[97] Although Linda initially testified that the debt was created from rent from the Beijing property that Grace collected, Simon's read-in discovery evidence indicated that Linda and Simon used the rental income from Beijing to help them pay their mortgages on their Toronto properties. Therefore, this would mean Linda had access to these rental funds. When confronted with this inconsistency, all Linda could say was that Simon was incorrect.
iii. There is no explanation for why Linda has not sued for the balance of this alleged debt.
[98] The monthly calculator produced by Linda in support of this loan showed that a total of $124,314 would have to be paid over 15 years to retire the alleged debt. Based upon the bank drafts that Linda said related to this debt, amounts paid by Jamshid would leave almost $100,000 owed. But there is no counterclaim in this action seeking payment of this balance and there is no evidence that Grace has ever paid the balance either.
iv. It is a remarkable, unexplainable and unbelievable coincidence that the online calculator shows almost the same number as the August, 2013 Lease that Linda said was a fraudulent document.
v. The payment dates make no sense according to Linda's narrative, but they do support Jamshid's.
[99] The first payment made by Jamshid dated February 25, 2014 specifically states it was for six month's rent in the amount of $4,143. This is consistent with paying $690 in rent over the prior six months since the lease was dated August 15, 2013, with the exception of being $3 more for the entire period which I have already addressed as not being significant.
[100] The payment of this $4,143 on February 25, 2014 is inconsistent with an agreement to repay a loan in the amount of $100,000, which Linda's final evidence suggested was made in February 2014. If these payments were for this alleged loan, as of February 25, 2014, only one payment of $690.64 would be owed as of that date. This is far less than the $4,143 total paid at that time. All Linda could say when confronted with this inconsistency was that she was not a bank and did not care how he paid her.
vi. The evidence re. the alleged $100,000 dowry and the alleged $100,000 debt cancels each other out.
[101] If Linda's testimony about the $100,000 dowry was true, it makes no sense that Grace owed Linda $100,000 as of February 2014. Recall that Linda testified that Jamshid agreed to pay Grace a $100,000 dowry. As of 2014, according to Linda, Jamshid had already paid her $90,000 towards the dowry. Therefore, by February 2014, if Linda was telling the truth, she had received $90,000 of Grace's money already which could have been applied to the alleged debt.
Jamshid's evidence that his 20-percent interest in the Fanshawe Property was converted to a 20-percent interest in the Spruceview Property is credible, believable and consistent with the contemporaneous documents.
[102] In the spring of 2015, the parties began discussing selling the Fanshawe Property and purchasing another home. Jamshid and Simon testified that he, Linda, Grace, and Simon went to Stouffville and looked at the Spruceview Property. Linda denied it and said Jamshid was lying. This is another instance where Simon's and Linda's evidence is inconsistent.
[103] On April 23, 2015, Linda and Simon entered into an agreement of purchase and sale in respect of the Spruceview Property for approximately $1,750,000. Jamshid testified that Linda told him that the total price for Spruceview including closing costs and land transfer tax would be $1,825,000.
[104] They discussed Jamshid continuing with an ownership interest in the Spruceview Property.
[105] During these discussions, the Fanshawe Property had not yet been sold.
[106] Jamshid knew that his 20-percent share of the Fanshawe Property would not be sufficient to obtain an interest in the Spruceview Property because the Spruceview Property was worth more. He wanted to roll his interest into the Spruceview Property in exchange for a 10-percent share.
[107] He discussed this with Linda, but she told him that Simon said he could only participate if he would contribute towards a 20-percent interest and he agreed.
[108] The agreement of purchase and sale required Linda and Simon to put down a deposit of $100,000. Jamshid paid Linda $20,000 by way of bank draft on April 15, 2015, which was one week before the agreement of purchase and sale was entered into. This is exactly 20 percent of the down payment required and supports Jamshid's evidence.
[109] The purchase of the Spruceview Property closed in October 2015. Two weeks before closing, Jamshid paid a further $50,000 by way of two bank drafts, each in the amount of $25,000, dated September 16, 2015. Although the handwriting on the photocopy is not entirely legible, one of these drafts says "for the house share at L4A 1W3" which is the postal code for the Spruceview Property.
[110] Jamshid also said that because he did not have the funds for the balance of the 20-percent interest in the Spruceview Property, Linda told him she could arrange a loan from Simon's sister in the amount of $100,000, to which he agreed. Then, he said he paid this amount over time to Linda.
[111] In the Joint Documents Brief, there is a photocopy of a handwritten note from Jamshid to Linda which states, "I will repay the mortgage of $100,000 to Linda till the end of June 1, 2017." This is consistent with Jamshid's evidence that this loan related to the Spruceview Property since it is called a mortgage.
[112] When Linda testified, she wanted to dispute some of the other notations on the photocopy of this handwritten note and held up the original note to show that Jamshid had added some writing.
[113] What is important about this is that Linda had the original of this note signed by Jamshid in her possession. There is no persuasive reason in the record for Jamshid to have written this note which related to a $100,000 mortgage, and to have given it to Linda, if it did not relate to this loan that Linda told him was advanced to her from Simon's sister to complete Jamshid's interest in the Fanshawe Property. If the note related to the alleged China loan, there is no explanation as to why it is called a mortgage. As well, there is no explanation as to why Linda would not have produced the original note in the proceeding if it related to the alleged China loan as it would have supported her evidence.
[114] There are additional bank drafts showing that Jamshid made payments over time to repay the $100,000 loan from Simon's sister as follows:
• Bank draft dated March 31, 2016 from Jamshid to Linda for $15,000, noting it is for 23 Spruceview, Stouffville.
• Bank draft dated April 26, 2016 in the amount of $5,000 with a a handwritten notation on the back stating it was for the Spruceview Property.
• Bank draft dated April 26, 2016 in the amount of $10,000
• Bank draft dated January 4, 2017 from Jamshid to Linda for $46,000.
• Bank draft dated May 11, 2017 in the amount of $15,000.
[115] This is where Jamshid's evidence becomes somewhat inconsistent because the total of all payments made by Jamshid exceed the value of a 20 % interest in the Spruceview Property.
[116] After the Fanshawe Property was sold, Jamshid's interest in it would have given him $271,300 that he could roll into the Spruceview Property. This would have left only $93,700 payable for him to have a 20-percent interest based upon the Spruceview purchase price.
[117] The value of 20 percent of the Fanshawe Property ($271,300) plus all the payments evidenced by the bank drafts equals $432,300. This exceeds Jamshid's 20-percent share of the Spruceview Property, which should have cost him $365,000.
[118] When Jamshid was cross-examined on this and it was pointed out that he paid too much he seemed confused. He kept saying that he had to pay the loan back because it was arranged before the closing date for the sale of the Fanshawe Property. Unlike Linda, Simon and Grace, who were evasive, failed to answer simple questions, gave unresponsive answers and seemed to quickly pivot when it was clear the cross-examination was unveiling an inconsistency, Jamshid readily acknowledged this inconsistency, was not argumentative and simply kept saying that he had to pay it back because it was a loan. He never wavered or veered into unlikely or improbable explanations.
[119] Further, at the time he agreed to the $100,000 loan, the Fanshawe Property had not yet been sold and so he did not know what value would be rolled in from that sale. And so, he entered into the loan and also made payments which ultimately exceeded the amount required to fund his 20 percent.
[120] On balance, I am not persuaded that this evidence of overpayment supports Linda and Simon's evidence or that it undermines Jamshid's evidence or credibility in any material way. At most, it shows Jamshi overpaid and that Linda was continuing to draw monies from him. He continued to pay amounts which they said he owed for his share of the Spruceview Property because he considered them to be family and he trusted them.
[121] While living at the Spruceview Property, Jamshid also continued to pay the $690 as his share of the mortgage or rent, and there are bank drafts which document these payments, also paid every six months.
[122] He also made payments towards some expenses and there is documentary support for this. For example, there was a payment of $354 for his share of home insurance. Linda again testified that this was for immigration purposes but provided no supporting documentation or particulars as to what this was allegedly for.
[123] I accept Jamshid's evidence, find that his interest in the Fanshawe Property was rolled into the Spruceview Property and that he made additional payments to complete his payment towards a 20-percent interest.
Issue 2: Has Jamshid established that he entered into an agreement with Linda and Simon such that his 20-percent interest in the Spruceview Property would be exchanged for ownership of the Everson Property?
[124] In late 2016, Grace and Simon had a significant argument related to concerns about how Grace was caring for Simon and Linda's son. As a result, Simon and Linda moved into another property owned by Linda, 18 Northampton Court (the "Northampton Property").
[125] It was clear the parties could no longer live with each other.
[126] On January 1, 2017, Jamshid says that they entered into an agreement such that Jamshid could exchange his 20-percent interest in the Spruceview Property for a condominium which Linda owned, the Everson Property. She told him it had the same approximate value as his 20-percent interest in the Spruceview Property.
[127] She told him that because the Everson Property was rented, Jamshid and Grace could move to another property she owned, at 29 Weldrick (the "Weldrick Property") until the lease for the Everson Property was up. They agreed that because Jamshid owned the Everson Property, however, Jamshid would be responsible for condominium fees and taxes. As well, because they were living at the Weldrick Property, Jamshid would pay the utilities.
[128] There is a handwritten note made by Jamshid which supports this agreement. It sets out all the terms to which Jamshid testified . At the bottom of the document, Jamshid wrote his first name and he says Linda wrote her first name. Jamshid said that this was not a signature but just the parties printing their names. Linda denies this.
[129] Here, I am not convinced on a balance of probabilities that Linda affixed her name to the bottom of this document.
[130] However, this does not persuade me that the actual agreement Jamshid alleges did not take place. As is well known, a trial judge can accept some, all or none of a witness' evidence. The fact that I do not accept that Jamshid has shown on a balance of probabilities that Linda wrote her name on this document, does not mean that I must conclude that the substance of the agreement he alleges is false.
[131] Indeed, I do believe him because the contemporaneous documents show that the parties conducted their affairs exactly in accordance with such an agreement. All the aspects of the alleged agreement were performed except for the transfer of the Everson Property to him.
[132] Consistent with this alleged agreement, there is documentary proof that Jamshid paid the common expenses and taxes for the Everson Property between June 2017 and September 2018 when he ultimately moved out because of his separation from Grace.
[133] Further, Jamshid did not pay any rent at the Weldrick Property where he and Grace were living and instead paid only the utilities. This is also consistent with his ownership of the Everson Property and with the agreement he alleges. If they had made the exchange, he would be able to live rent free at the Everson Property and would have to pay utilities.
[134] The explanations that the Defendants and Grace gave for why Jamshid would have been paying common expenses and taxes at the Everson Property and only utilities at the Weldrick Property were unpersuasive:
• It was intended that they would move to the Everson Property, but it was tenanted and so they had to wait until the lease expired. This does not explain why he would be paying these amounts.
• Jamshid did not have any money to pay rent so they agreed that he would pay minimal amounts. Again, this does not explain why he would be living at the Weldrick Property and paying utilities and not living at the Everson Property and yet paying its taxes and condominium fees.
[135] It is also inconsistent with the fact that Jamshid had been able to make large payments to Linda pursuant to the above bank drafts which were all made in 2017. He clearly did have funds and Linda knew it.
[136] Further, in accordance with this agreement, Linda continued to receive the rent at the Everson Property. Also in accordance with this agreement is that Linda rented the basement apartment in the Weldrick Property, collected the rent and paid the taxes for the Weldrick Property.
[137] The timing of this agreement also supports its existence given its proximity to their family dispute.
[138] Following their separation, in September 2018, Jamshid moved out of the Weldrick Property. Then, he says he made multiple requests that Linda transfer the Everson Property into his name but she refused. There is an email from Jamshid to Linda dated October 28, 2018, where he told her he wanted to speak to her about important financial issues.
[139] Jamshid testified that they met at a Tim Horton's coffee shop where he asked for the transfer of the Everson Property. Linda refused, telling him that the property had been undervalued when they made their agreement and his payments were not sufficient. She said if he wanted a transfer of the Everson Property, he would have to take her to court.
[140] Accordingly, he stopped paying the taxes and condo fees for the Everson Property at that time.
[141] Here I set out some general arguments made by the Defendants about Jamshid's credibility and why these issues have not persuaded me.
[142] First, the Defendants argue that he was too smart to have entered into these kinds of arrangements because he has a Ph.D. in engineering. Smart people in families can be fooled. He testified and I believe that he trusted Linda.
[143] Second, in some cases, Jamshid made a notation that payments related to the properties and in others he did not. Again, what is more problematic is that Linda received so many of these with notations and accepted them as they were without speaking up about the fact that they related to an interest in the properties at issue, if they did not.
[144] Third, the separation agreement entered into in 2018 makes no mention of these issues and says:
The Parties acknowledge that they have agreed upon a division of all assets, owned or possessed by them as marital property or separate property. The Parties are in possession of all of those assets to which each is respectively entitled. Accordingly, neither makes any claim to any assets in the possession of the other.
[145] I agree this is inconsistent with Jamshid saying he was entitled to a transfer of the Everson Property because he was not actually in possession of it.
[146] When he was cross-examined, the following exchange took place on this issue:
Q. What assets did you have in your possession?
A: I did not have except some cash money, but I was supposed to receive 3 Everson.
Q. So, this referred to something that you were supposed to have even though you didn't list it here?
A. Yeah, I was expecting for the ultimate transfer of 3 Everson condo.
Q. And why would 3 Everson not belong partly to Grace?
A. I decided that it is better if I receive to share it with her.
Q. I don't follow that. Could you, please, explain what you just said a little bit better?
A. I paid [indiscernible] cost to Linda for 3 Everson condo and in order — so that would not fall within property equalization. That it was out of my good will — to give her if I receive it.
[147] This may not be legally correct, but Jamshid and Grace prepared this document themselves without legal advice. He incorrectly thought that he was entitled because he had paid for everything during the marriage. I add that the parties are not divorced yet and so Grace could still make a claim for equalization.
[148] Fourth, there are only two payments for insurance or taxes in very small amounts. Again, both of these bank drafts say they are for these payments and Linda would have seen this. Jamshid was simply making contributions that she requested.
[149] Although I have not found that Linda affixed her name to the January 1, 2017 note, I find that they entered into an oral agreement that Jamshid would be entitled to a transfer of the Everson Property in exchange for giving up his interest in the Spruceview Property, consistent with Jamshid's evidence and the contents of the note. I also find, based upon Jamshid's evidence, that all elements of contractual formation have been satisfied including offer, acceptance, consideration, and certainty of terms. Indeed, the Defendants never made any argument that they were not.
Issue 3: Is the agreement in respect of the Everson Property unenforceable because of the Statute of Frauds?
[150] I find that the Statute of Frauds does not apply because it was never pleaded. See Tutt v. Ishakis, 2020 ONSC 5711, 153 O.R. (3d) 199 (Div. Ct.), at paras. 13, 15-16, citing Severin v. Vroom (1977), 1977 1037 (ON CA), 15 O.R. (2d) 636 (C.A.), at para. 7, where the Court of Appeal held:
There is no question that the law today is that the Statute of Frauds must be pleaded. The rules so specify and in Steadman v. Steadman, [1974] 2 All E.R. 977, Lord Reid at p. 981 reiterates the requirement. It has also been stated in the Courts of this country that a failure to request to amend a statement of defence to plead the Statute of Frauds is a waiver of the right to do so and an admission that the statute is not applicable.
[151] To the extent that the Statute of Frauds applies, there has been sufficient part performance such that the provisions of the Act do not apply. As noted by Centa J. 2730453 Ont. Inc. v. 2380673 Ont. Inc., 2022 ONSC 6660, 51 R.P.R. (6th) 259, at paras. 116-120. at para. 116, the purpose of the Statute of Frauds is to prevent fraudulent dealings in land based upon perjured evidence. Equity created a doctrine of part performance so that the Statute of Frauds itself could not be used to perpetrate a fraud. Where one party to a contract which would be unenforceable under the Statute of Frauds sits back while the other party acts to his detriment in performing the contract, the first party will not be allowed to rely on the Statute of Frauds. Thus, verbal agreements that have been partly performed will be enforced: at para. 117.
[152] In considering whether part performance takes the alleged oral agreement outside the operation of the Statute of Frauds, the conduct of both parties is relevant: at para. 118. Further, the acts must be "unequivocally referable in their own nature to some dealing with the property": at para. 119.
[153] I find that the following acts of part performance are unequivocally referable to the exchange of Jamshid's interest in the Spruceview Property for an interest in the Everson Property and are sufficient to take this agreement outside the operation of the Statute of Frauds:
• Jamshid moved out of the Spruceview Property in January 2017 and has made no claim to it even though I have found as a fact that he had an interest in it.
• He paid the taxes for the Everson Property from January 1, 2017 until approximately September 2018 and Linda did not make any contributions to these.
• He paid the maintenance fees for the Everson Property by way of direct deposit from his account such that his name must have been given to the condominium corporation, also until approximately September 2018.
• Linda permitted Jamshid to pay these amounts.
[154] There is no persuasive explanation for the above other than the agreement Jamshid alleges and which I have found.
[155] Jamshid has acted to his detriment in relying on the oral agreement. It would be inequitable to permit Linda to rely on the Statute of Frauds to avoid performance.
[156] I add that in my view, the Statute of Frauds would not apply to the oral agreements in respect of the Fanshawe Property or the Spruceview Property, because Jamshid is not seeking to enforce them. The evidence in respect of these other properties is simply relevant background information that supports the enforcement of the agreement with respect to the Everson Property.
[157] If I am wrong in that regard, all of the same arguments apply. The Statute of Frauds was not pleaded. If it applies, the acts of part performance with respect to each of the Fanshawe Property and the Spruceview Property are sufficient to take these agreements outside the operation of the Statute of Frauds. So as not to repeat all the evidence, the evidence above with respect to payments that Jamshid made in respect of each of these transactions was his dealing with the land and which are unequivocally referable to the agreements he alleges in respect of each of these properties.
Issue 4: What are Jamshid's contract damages?
[158] Jamshid commenced this action on March 6, 2019. Linda then listed the Everson Property for sale on March 29, 2019 and sold it for $555,000.
[159] Jamshid claims damages in this amount.
[160] The measure of damages in a breach of contract claim is the loss of bargain such that the non-defaulting party is put in the same position he would have been in if the contract had been performed. Ordinarily, a property valuation would assist the court in determining the loss to Jamshid as at the date of breach but there is no valuation before me.
[161] The proper time at which damages should be calculated is the date of default; however, the trial judge has discretion to choose another date on proper reasons which must be set out: 100 Main Street East Ltd. v. W.B. Sullivan Construction Ltd. (1978), 1978 1630 (ON CA), 88 D.L.R. (3d) 1 (Ont. C.A.).
[162] It is not entirely clear when the default occurred because the oral agreement alleged does not set out the time for the transfer. Jamshid says he made a demand for the transfer of the property in in October 2018.
[163] Here, since Linda chose to sell the Everson Property, knowing full well about his claim, she received $555,000 that she was not entitled to and which was the value of the property at that time. This was shortly after the demand in October 2018. Since these dates are so close, and given all other circumstances before me, I therefore find that the appropriate date for the calculation of Jamshid's damages is the date the sale closed whereby Linda received this sum.
[164] I reject the argument that any amount awarded should be subject to any mortgage that existed on the Everson Property as at the date of sale. The contract that I have found did not include any agreement that Jamshid would assume any existing mortgage on the Everson Property. If Linda had wanted to lead that kind of evidence, she could have but did not. I note that the only evidence of the mortgage being paid out was on a lawyer's letter to Linda which showed that on closing, a Royal Bank mortgage in the amount of $144,091 was paid off.
[165] I also reject the argument that any award should be net of commissions and that a reference should be ordered in this regard. The Statement of Adjustments did not show any amount was paid for commission. In any event, had Linda transferred the Everson Property to Jamshid as at the date she sold it, no commission would have been paid. She also did not lead any evidence as to the land transfer costs of this sale.
[166] Thus I award damages in the amount of $555,000 for breach of contract.
Issue 5: If the contractual claim cannot be enforced, is Jamshid entitled to payment of $555,000 as a remedy for unjust enrichment?
[167] In the alternative, I award Jamshid damages as a remedy for unjust enrichment in the amount of $555,000.
[168] It is trite that the elements of unjust enrichment are an enrichment, a deprivation, and no juristic reason for the enrichment: 1248671 Ontario Inc. v. Michael Foods Inc., 2005 32926 (Ont. S.C.), at para. 56.
[169] I have found a deprivation, which is all the payments made by Jamshid and the exchange of his interest in the Spruceview Property for the Everson Property. I have found an enrichment, which is the receipt by Linda of all the payments Jamshid made, as well as her receipt of the proceeds of sale of the Everson Property.
[170] With respect to the absence of a juristic reason for the benefit and deprivation, this is the heart of the analysis because it involves the consideration of whether as a matter of law, "it is just or unjust, fair or unfair for the defendant to keep the benefit": Michael Foods, at para. 59.
[171] In this case, there is no juristic reason for Linda to keep this benefit. This would result in an injustice. It is only fair and just that Linda disgorge this benefit.
[172] It is irrelevant that Linda did not receive all these funds in cash because some portion was used to pay out the mortgage to the Royal Bank. She still benefited from that payment to the Royal Bank as she was also personally liable on the covenant.
[173] Since all of Jamshid's communications were with Linda, whether the award is for breach of contract or as damages for unjust enrichment, the award may only be made against Linda for the following reasons:
• Jamshid did not testify as to any communications or agreements made with Simon related to these issues, only with Linda.
• The ultimate agreement related only to the Everson Property which Linda solely owned.
• Jamshid's lawyer conceded that at least with respect to the breach of contract claim, Jamshid could only succeed as against Linda.
• Although Simon did benefit because of the payments made by Jamshid, as set out in Michael Foods, at para. 57, the mere receipt of a benefit is not sufficient for the restitutionary remedy, which is rooted in the reasonable expectations of the parties. It cannot be said that Simon unjustly benefitted without some evidence that he knew about Jamshid's and Linda's communications or agreements.
[174] Therefore I award Jamshid damages in the amount of $555,000 against Linda.
[175] I encourage the parties to settle costs and interest. If they cannot settle they may make submissions as follows: Jamshid within 7 days and the Defendants within 7 days thereafter, such submissions to be no longer than 6 pages. The parties shall provide submissions on the date from which pre-judgment interest should run as well.
Papageorgiou J.
Released: January 5, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMSHID NAYYER
Plaintiff
– and –
DANPING WANG also known as LINDA WANG and SHI GANG NI also known as SIMON NI
Defendants
REASONS FOR JUDGMENT
Papageorgiou J.
Released: January 5, 2024
[^1]: There are also some less significant amounts of $635, $354 and $4,000 which are not part of these primary explanations but which I address in these reasons.