COURT FILE NO.: CV-21-00000810-0000

DATE: 20240110

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Thomas Wiffin and Sharon Lau-Wiffin

Applicants

– and –

Ed Lau Ironworks Limited and the Estate of Albert Edward Lau, by its Estate Trustee Elizabeth-Liza Lau

Respondents

Daniel W. Veinot, for the Applicants

Robert W. Scriven, for the Respondents

HEARD: September 20, 2023

JUSTICE ANTONIANI

REASONS FOR DECISION

OVERVIEW

[1] This action concerns the beneficial ownership of two properties: 125 Whitney Place in Kitchener, Ontario (“Whitney”) and 37 Reid’s Point Road in the Bruce Peninsula, Ontario (“Reid’s”).

[2] Albert Lau (“Albert”) was born in 1930 and had one child, Sharon Lau-Wiffin (“Sharon”), born in 1952. Sharon is married to Tom Wiffen (“Tom”), born in 1956.

[3] Albert died during these proceedings. He is also survived by his second wife, Elizabeth-Liza Lau (“Liza”);

[4] Between 1993 and 2003, Sharon and Tom were added to the title of each of Whitney and Reid’s, as joint tenants, for no consideration.

[5] Louise was Albert’s first wife. Prior to Louise’s death, Albert and Louise owned 125 Whitney Place, and Albert owned the adjacent property at 115 Whitney Place, which was occupied by his business Ed Lau Ironworks.

[6] Albert operated the business for many years, and then Tom and Sharon took over operation of Ed Lau Ironworks after Albert retired.

[7] In about 1996, while Louise was still alive, Tom and Sharon constructed an apartment at 125 Whitney Place, where they then resided for over 20 years. It is not disputed that Sharon and Tom paid all of the expenses related to the construction of that apartment. It is not disputed that they sold the condominium that they owned, and moved into the apartment in part because it was located next door to the business.

[8] After Tom and Sharon were added as joint tenants to the properties, and after Albert re-married, Albert unilaterally severed the joint tenancies in each of Whitney and Reid’s, so that prior to the commencement of these proceedings, Albert’s title to the two properties was as a tenant-in-common with Sharon and Tom.

[9] Whitney was sold prior to the commencement of these proceedings, and the net proceeds of sale are held in trust, pending the outcome of this Application. Sharon, Tom, and the Estate of Albert remain on title on Reid’s.

[10] Sharon and Tom ask this Court to direct payment to them of 2/3 of the net sale proceeds Whitney, and to declare that they are the legal and beneficial owners of a 2/3 interest in Reid’s.

[11] Albert’s Estate Trustee asks the Court to find that, because Sharon and Tom were put on title to the properties for no consideration, they held the properties in trust for Albert. As such, Albert’s estate is entitled to 100% of the net sale proceeds of Whitney and full legal and beneficial ownership of Reid’s.

[12] Ed Lau Ironworks, although named in the title of proceedings, was not a participant in the Application, and no remedy is sought from it.

CHANGING OF WILL AND TERMINATION OF THE JOINT TENANCIES

[13] Louise died on August 12, 2005. After her death, Albert executed personal and corporate wills, naming his daughter Sharon executor and sole beneficiary of his estate.

[14] About fourteen years after Louise died, on August 30, 2019, Albert married Liza. Albert did not tell Sharon or Tom about the marriage. There is some evidence to suggest that by the time of the marriage, there had been a deterioration in the relationship between Albert, Sharon and Tom.

[15] The evidence is that Albert made several changes to his will after he married Liza. First, he granted Liza a life interest in their residence on the main floor of Reid’s with “the remainder interest” in Reid’s to Sharon, and eventually he removed Sharon as a beneficiary altogether.

[16] On November 19, 2019, three months after he married Liza, Albert severed the joint-tenancy of Reid’s, leaving him with an undivided 1/3 interest in Reid’s as a tenant-in-common. He did this without informing either Sharon or Tom.

[17] On or about April 9, 2020, in advance of a sale of Whitney, Albert also unilaterally severed the joint tenancy of Whitney, leaving him with an undivided 1/3 interest in the property with Sharon and Tom. Albert, again, did not tell Sharon or Tom about the severance.

ISSUES

[18] When Albert added Sharon to title on Reid’s as a joint tenant, for no consideration, was his intention to make an inter vivos gift to Sharon, or was the transfer intended for other purposes, such that Sharon holds the property in trust for Albert?

[19] When Tom was added to title on Reid’s as a joint tenant, for no consideration, was the intention to make an inter vivos gift to Tom, or was the transfer intended for other purposes, such that Tom holds the property in trust for Albert or others?

[20] When Albert added Sharon and Tom to the title of Whitney as joint tenants, for no consideration, was his intention to make an inter vivos gift to them, or was the transfer intended for other purposes, such that Sharon and Tom held the property in trust for Albert?

[21] If Sharon and Tom do not have a beneficial interest in either, or both, properties, were there labour and financial contributions made by them in relation to either, or both properties, such that there is a constructive trust in their favour?

DECISION

Reid’s

[22] I find that when he added Sharon as a joint tenant to the title of Reid’s, Albert intended that Sharon would eventually have sole, legal and beneficial ownership Reid’s, by right of survivorship, and that the gift was inter vivos, and took effect at the time Sharon was added to title.

[23] I find that when Tom was added to the title of Reid’s as a joint tenant, Albert, Sharon and Louise, together, intended to make an inter vivos gift to Tom of a beneficial interest in Reid’s, and his interest took effect immediately.

[24] I therefore declare that Sharon and Tom have a 2/3 beneficial and legal interest in Reid’s.

Whitney

[25] I find that when he added them to title as joint tenants on Whitney, Albert intended to make an inter vivos gift to Sharon and Tom of a beneficial interest in Whitney. I therefore declare that Sharon and Tom are entitled to 2/3 of the net sale proceeds from Whitney.

[26] The Application to declare that there is a constructive trust in favour of Sharon and Tom on 37 Reid’s Point Road and 125 Whitney Place is dismissed.

[27] Albert’s Application for a declaration that Sharon and Tom held the two properties in trust for him is dismissed.

ANALYSIS

[28] The parties generally agree as to the law: when a transfer of an ownership interest is made without consideration, there is a presumption the transferee takes title subject to a resulting trust in favour of the transferor. The presumption is rebuttable on evidence that the transferor’s intention at the time of the transfer was to make a gift to the transferee.

[29] The onus to rebut the presumption of resulting trust is on the transferee, to be satisfied on a balance of probabilities.

[30] The rationale for the resulting trust is described in Pecore v. Pecore, 2007 SCC 17, [2007] 1 SCR 795. At para. 24, the Court stated:

The presumption of resulting trust is a rebuttable presumption of law and the general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended… This is so because equity presumes bargains, not gifts.

[31] In this case, there was no consideration paid for any of the transfers that are at issue in these proceedings. Therefore, Sharon and Tom bear the onus of proving, on a balance of probabilities, that Albert’s intention, at the time of each of the transfers, was to make inter vivos gifts to them.

[32] The courts have struggled to determine conclusively whether the impact of the transfer of real property via a joint tenancy is testamentary or inter vivos in nature. At para. 48 in Pecore, the Court stated:

Courts have understandably struggled with whether they are permitted to give effect to the transferor’s intention in this situation. One of the difficulties in these circumstances is that the beneficial interest of the transferee appears to arise only on the death of the transferor. This has led some judges to conclude that the gift of survivorship is testamentary in nature and must fail as a result of not being in proper testamentary form… For the reasons that follow, however, I am of the view that the rights of survivorship, both legal and equitable, vest when the joint account is opened and the gift of those rights is therefore inter vivos in nature. This has also been the conclusion of the weight of judicial opinion in recent times.

[33] Fuller v. Fuller Estate., 2010 BCCA 421, [2010] 292 B.C.A.C. 182 is also instructive. At para. 53 the Court stated:

In sum, when dealing with real property an undivided one-half interest held as a joint tenant is to be distinguished from a divided one-half interest held as a tenant in common. Upon death, the interest of a tenant in common passes into his or her estate while the interest of joint tenant, which carries with it the right of survivorship, passes to the surviving joint tenant. In other words, the legal and equitable title (the right of survivorship) of a joint tenancy vests at the time the joint tenancy is created. Therefore, the gift of a joint interest in real property is an inter vivos rather than a testamentary gift and cannot be retracted by the donor. It is a “complete and perfect inter vivos gift.”(emphasis added)

[34] The transferee’s intention at the time of the transfer is the only relevant intention. Where a gift is intended, the fact that the donor comes to regret the gift based upon an unexpected turn of events cannot cause an otherwise absolute gift to morph into a conditional one: see Madill v. Leach, 2010 CarswellOnt 4463 (Ont. S.C.J.), at para. 7.

[35] An inter vivos gift must be distinguished from a testamentary gift. An inter vivos gift, takes effect immediately, whereas a testamentary gift takes effect only upon the death of the testator. Different principles therefore apply. While a testator may change their mind as to whom they wish to leave any, or all, of their assets, a completed gift cannot be revoked.

[36] In this case, I find that Albert changed his mind about whom he wished to leave his estate to. He removed Sharon as his beneficiary, as was his right.

[37] It was also open to Albert to sever the joint tenancies in the two properties, which he did, and which is not challenged here.

ISSUE 1: When Albert added Sharon as a joint tenant on Reid’s for no consideration, was his intention to make an inter vivos gift to her, or was the transfer intended for other purposes, such that Sharon holds the property in trust for Albert?

[38] 37 Reid’s Point Road is a property in the Bruce Peninsula. In 1993, Albert inherited the property, and directed that title be placed in the names of himself, his wife, and Sharon, as joint tenants.

[39] The only evidence that is contemporaneous with the transfer is the lawyer’s reporting letter to Albert, which serves to remind Albert that on the death of any one of the joint tenants, title will go to the surviving joint tenants.

[40] There is some evidence that years later, Sharon and Tom had a falling out, perhaps after the family business began to fail, or perhaps in relation to Albert’s relationship with Liza. For example, the parties agree that there is some evidence that Sharon and Tom presented Albert with a prenuptial agreement that they wanted Liza to sign, and that the idea was not received well by Albert. There was other evidence that, by the time of this litigation, the relationship between Albert and Sharon and Tom had deteriorated. I understand that there may be parallel litigation ongoing in relation to the business of Ed Lau Ironworks.

[41] Paragraphs 48 and 56 of Pecore, states:

I am of the view that the rights of survivorship, both legal and equitable, vest when the joint account is opened and the gift of those rights is therefore inter vivos in nature.

The reason that subsequent acts and declarations have been viewed with mistrust by courts is because a transferor could have changed his or her mind subsequent to the transfer and because donors are not allowed to retract gifts. As noted by Huband J.A. in Dreger, at para. 33: “Self-serving statements after the event are too easily fabricated in order to bring about a desired result.”

[42] I find that Albert’s actions in changing his will, and in unilaterally severing the joint tenancies are evidence of his remorse about his earlier generosity, or reflect a change in his relationship with Sharon. I find that the severance was intended to mitigate the impact of the gift he had made to Sharon when he added her to title as a joint tenant, and enable him to redirect his portion of the properties to Liza.

[43] While there is no one fact that leads me to the conclusion that Albert intended to gift a beneficial interest in Reid’s or Whitney to Sharon, there is a constellation of many facts, which, when taken together, lead to that conclusion. They include:

a. There is no evidence as to how, or why, it would have advanced Albert’s financial, or other interests, or assisted in the management of Albert’s affairs, to add Sharon as a joint tenant to properties already owned by himself, or him and Louise. There is no evidence that the transfer was intended to help Albert manage his affairs, or that in fact Albert required any help in managing them.

b. When Albert added Sharon as a joint tenant on Reid’s, he was 63 and Sharon was 41, and she was his only child. After Louise died, Sharon was his sole beneficiary.

c. Unlike the joint bank accounts considered in Pecore, and other decisions, the facts here relate to real property. There is no evidence that there was debt against the properties, or that management of either property was necessary on Albert’s behalf.

d. There is no evidence from any party that there was any discussion of an intended trust, notwithstanding they were a very close family, who all ran or worked in family business, and resided adjacent to one another, and eventually were living together in one building.

e. After the death of Louise, Albert made survivorship claims in relation to Whitney and Reid’s. Albert understood that a joint tenant, with a survivor interest, would not be required to pay estate tax. Either through legal advice or otherwise, Albert understood it was necessary to make a survivorship claim. In relation to Reid’s, the survivorship claim after Louise’s death left him and Sharon on title as joint tenants.

f. During cross-examination on his affidavit, Albert testified that he made Sharon and Tom joint tenants on the properties to “save them taxes”. The only reasonable inference to be made from Albert’s reference to saving Sharon and Tom from paying taxes is that he was referring to estate administration tax (“probate fees”).

g. The saving of probate fees as an intention at the time of transfer supports a rebuttal of a resulting trust: see Zacher v. Zacher, 2019 ONSC 1450, 46 C.C.P.B. (2nd) 93 at para. 87:

In any event, the applicants wish to avoid probate fees does not assist in a finding of a resulting trust but instead contradicts such a finding: see Holtby v. Draper, 2017 ONCA 932 at para.69. In other words, the stated intent to avoid paying these fees supports the finding of an implied intent by the parents to deprive themselves of beneficial ownership of the property in favour of a gift to their daughter.

h. I find that the factors above, including Albert’s unilateral severance of the joint tenancy in Reid’s and Whitney, without notice to Sharon or Tom, is evidence that Albert was well able to manage his own affairs. He ran Lau Ironworks until Sharon and Tom took it over in 1993. He knew that adding Sharon and Tom as a joint tenants on the properties would allow ownership of the properties to pass to them by right of survivorship, and not pursuant to his will, thereby saving probate fees.

i. When Sharon put up all of the funds needed to buy a property adjacent to Reid’s, at 39 Reid’s Point Road, which purchase is discussed in detail below, Albert was involved. The purchase was intentionally structured to result in having the two properties merge. The details of the purchase are discussed below, and are a factor I have considered to assess the understanding of all parties as to the ownership interest in Reid’s.

j. By the commencement of these proceedings, all parties resided together at Reid’s. Tom and Sharon resided in the upper apartment, which they constructed and paid for, and Albert and Liza were residing on the main floor.

[44] The multiple changes that Albert made to his will after he married Liza also support my finding that he was a person of some sophistication in managing his own affairs.

[45] I find that the evidence before me supports the conclusion that when his relationship with Sharon and Tom soured, Albert had remorse about the gifts he had made to them and did what he could to retract them. Having made Liza his principal beneficiary under his will, Albert severed the joint tenancies on Reid’s and Whitney, so that Liza could inherit his undivided 1/3 interest in each property.

[46] I find that there is no evidence of any intention, other than an intention to gift Reid’s to Sharon, when Albert added her as a joint tenant. I conclude that Sharon has rebutted the presumption of a resulting trust, on a balance of probabilities.

ISSUE 2: When Tom was added as a joint tenant on Reid’s for no consideration, was Albert’s intention to make an inter vivos gift to him, or was the transfer intended for other purposes, such that Tom holds the property in trust?

[47] In February 2003, ten years later after Sharon had been added to title as a joint tenant, Tom was added as a fourth joint tenant on title at Reid’s. This necessitated the consent of the three existing joint tenants: Albert, Louise, and Sharon. Tom’s name was added in anticipation of Sharon decision to purchase the adjacent property, then 39 Reid’s Point Road. The properties were merged upon the purchase, as was intended. The reporting letter from the lawyer who completed the transactions on behalf of all four parties included a report that the merged property was owned by the four as joint tenants, and that this would mean that upon death of any one of them, the deceased party’s ownership interest would pass to the surviving joint tenants.

[48] There were two simultaneous transactions: first, Tom was added as a joint tenant to Reid’s, following which, all four parties as joint tenants, took title in the adjacent property – 39 Reid’s Point Road – so that title in the two the properties merged.

[49] The transfer documents adding Tom as a joint tenant to 37 Reid’s point road includes the following notation: “Conveyance from father-in-law, mother-in-law and wife to themselves and son-in-law/husband for natural love and affection.” Further, the document indicates that no consideration passed. I note that in fact it had to be Albert, Louise and Sharon together who instructed the lawyer to add Tom as a joint tenant – this transfer was not able to be made on the unilateral direction of Albert.

[50] It is undisputed that Sharon alone provided the funds to purchase the 39 Reid’s Point Road, and that neither Albert, Louise or Tom contributed to that purchase, despite the fact that they all became joint tenants on the newly merged property.

[51] The transfer documents show that one solicitor was acting on behalf of all four parties, on both transactions.

[52] After the purchase of 39 Reid’s Point Road and the merger of title with Reid’s, the existing residence on 37 was torn down, and a new building was constructed. The new building contained two living units: a main floor unit, paid for and occupied by Albert and Louise, and a second-floor unit, constructed and paid for by Tom and Sharon.

[53] The evidence is that Tom and Sharon contributed time, labour, and some funds to the overall construction work, some of which occurred while Albert and Louise spent the winter in Florida. There is evidence that, over the years, Sharon and Tom contributed other time and money to Reid’s, even before they moved into the building in about 2020. For example:

a. In 2010, Sharon and Tom purchased new laundry appliances;

b. In 2012, they purchased a John Deere compact tractor with a loader bucket and snowblower;

c. In 2017, Sharon, Tom and Albert all jointly contributed to the installation of a new metal roof; and

d. In 2017, Sharon and Tom replaced the water softener.

[54] When this litigation was commenced, Albert and Liza were living on the main floor of Reid’s and Sharon and Tom were living in the upper unit.

[55] Albert, Sharon and Tom all appeared to treat Reid’s in a way that suggested they understood that it belonged beneficially to all of them. These events are after the fact conduct, but I find that they reflect the understanding of each of them, including the understanding of Albert - that the legal and beneficial ownership of Reid’s was held jointly by the four family members. As a person of some sophistication, I find that Albert had intended this outcome.

[56] Asked about his later decision to sever the joint tenancy in 37 Reid’s Point Road, Albert responded “The only thing I know is that if I voted – Liza has – Like I don’t know what you call that, I go out and she gets my share of the house.” (emphasis added).

[57] I find that Albert’s own evidence confirms that he understood that he had an undivided “share” of the house. He understood that the consequence of his severance of the joint tenancy was that he was free to gift his interest in the house to Liza.

[58] It was not until a third revision of his will after Louise’s death, that Albert removed Sharon as a beneficiary to leave his entire estate to Liza, and first mentions that the jointly held properties were being held in trust for him. Considered together, these actions confirm that Albert was a person with a sophisticated understanding of property rights, or, at a minimum, that he was able to convey his desired outcome to counsel who acted for him.

[59] I note also that the version of Albert’s will that is relevant in these proceedings (I understand that there was at least one further version after the commencement of these proceedings), although he states that Sharon is holding the properties in trust for him, Albert makes no reference at all to Tom. In his effort to attempt to undo the gifts he had made to Sharon, Albert appears to have neglected to address the transfers made to Tom.

[60] It is clear in reading the cross-examination of Albert that by the time these proceedings were underway, his position was that Sharon and Tom held the properties in trust for him. I find that the absence of reference to Tom in the revised will was an oversight, and that it is not relevant to understanding Albert’s intention when he put Sharon and Tom on title to each property.

[61] Having considered the evidence as a whole, I conclude that the presumption of a resulting trust in relation to Tom’s ownership of Reid’s, has been rebutted on a balance of probabilities.

ISSUE 3: When Albert added Sharon and Tom as joint tenants of Whitney for no consideration, was Albert’s intention to make an inter vivos gift to them, or was the transfer intended for other purposes, such that Sharon and Tom hold the property in trust for Albert?

[62] After Louise’s death in 2005, Albert made an application for his survivor’s interest in 125 Whitney Place, as he and his late wife had owned the property as joint tenants. About a year later, November 2006, Albert instructed his lawyer to add Sharon and Tom to title on 125 Whitney Place, as joint tenants.

[63] The lawyer’s reporting letter included confirmation that upon the death of any joint tenant, the deceased party’s ownership interest would go to the remaining joint tenants. I find it to be significant that at the time of the transfer, Sharon was the sole beneficiary of Albert’s estate. As such, adding her to the title of Whitney was redundant, if Albert only intended to make a testamentary gift and not an inter vivos one. In Griffith v. Davidson, 2017 ONSC 187, [2017] W.D.F.L. 877, Justice Donohue found that the transferor’s testamentary intentions, where the transferee had been the sole beneficiary of the estate at the time of the transfer, favoured a conclusion that there was an intention to make a gift.

[64] Many of the factors discussed earlier in this decision concerning Albert’s intentions in relation to the transfers to Sharon and Tom on Reid’s apply equally to consideration their title as joint tenants on Whitney. In particular, there is no evidence before me that Albert required anyone to manage his affairs, which might otherwise explain why he would add Tom and Sharon to title to his property. As discussed above, there is evidence that Albert well understood the consequences of his own actions. As such, I also find it instructive that there is no evidence of any discussion about a trust, despite the fact that Albert, Sharon and Tom operated a business in common, they resided in the same building some of the time, and it appeared that the family’s affairs were significantly intertwined.

[65] Sharon and Tom built and paid for the apartment at 125 Whitney Place, next door to Ed Lau Ironworks. They sold their home and moved into Whitney and resided there for many years, while they ran the business.

[66] Sharon and Tom constructed a privacy fence at Whitney, and completed landscaping at the location, also at their own expense. When 125 Whitney Place was sold in 2020, the sale price included appliances and window coverings that Sharon and Tom had purchased. Upon the sale of Whitney, Sharon and Tom moved to the upper apartment they had constructed for themselves at Reid’s, such that, at the commencement of these proceedings, all parties were residing at that address, in their separate units.

[67] On October 9, 2020, Whitney was sold. Upon the sale, the lawyer acting for the parties sent them an allocation of net proceeds acknowledgment and agreement, which proposed that the proceeds of the sale be divided equally among Albert, Sharon and Tom, presumably since they were on title as joint tenants. After a series of communications between lawyers, it became clear that Albert did not agree that Sharon and Tom held a beneficial interest in the property.

[68] Albert swore an affidavit in support of these proceedings. At para. 12 of that affidavit, Albert swore that:

“….I agreed to transfer legal title only to Tom and Sharon for no consideration. I agreed to have Tom and Sharon placed on title of 125 Whitney Place only for the purpose of them obtaining credit for Lau Ironworks.” (emphasis added)

[69] During cross examination in relation to his affidavit, Albert provided a further explanation at paragraphs 118 and 119:

Q: So was the purpose of adding Tom and Sharon to 125 Whitney Place so that your estate would not need to pay probate fees on 125 Whitney Place? Was that part of the motivation?

A. Yes

A. I put their names on it so that they’d save money. (emphasis added)

[70] Albert’s explanation that he only added Sharon and Tom as joint tenants to 125 Whitney Place so that they could secure financing for the family business is not borne out by the evidence. The only evidence of any application for financing for the family business relates to a loan application made in 2009, three years after Albert added Sharon and Tom to the title of Whitney, and that application shows Albert as the only credit applicant. There is no evidence of any other financing effort(s) made after Sharon and Tom became joint tenants in 2006. I reject the explanation that Albert added them to title for the purpose of obtaining financing.

[71] As was the case with Reid’s, the explanation offered by Albert in relation also to his transfer of Whitney to Sharon and Tom is that he intended the transfer to “save them money”. Again, this can only reasonably be understood to be a reference to saving them probate fees. This evidence clearly supports a finding that Albert’s intention at the time was that, upon Albert’s death, the properties would pass to Sharon and Tom, by right of survivorship.

[72] On all of the evidence, I find that the presumption of a resulting trust has been rebutted on a balance of probabilities. As such, I find that Sharon and Tom had a legal and beneficial 2/3 interest in the property at 125 Whitney Place.

ISSUE 4: In the alternative, if Sharon and Tom do not have a beneficial interest in either, or both, properties, were there labour and financial contributions made by them in relation to either, or both, properties, such that there is a constructive trust in their favour?

[73] The Applicants made a brief argument in the alternative that they are entitled to a constructive trust interest in each property for their labour, and for direct financial contributions. Having found that Sharon and Tom have a legal and beneficial interest in each property, I need not address this argument. In any event, the evidence available to the Court in these proceedings does not allow for a determination of the quantum, if any, of a constructive trust. The evidence disclosed some very general evidence of contributions to various construction and renovation projects, as well as purchases of appliances and other items, but there was no attempt at quantifying the contributions in relation to the relevant property values at the time of contribution. In any event, where there has been a gift, there is no need to determine any issue of unjust enrichment (or constructive trust): see Madill v. Leach at para. 10, citing Goldring v. Lococo (2002), 2002 CanLII 53251 (ON SC), 33 R.F.L. (5th) 338, aff’d (2004), 2004 CanLII 10207 (ON CA), ONCA 10207, 3 R.F.L. (6th) 39. As such, the claim for a declaration of constructive trust is dismissed.

115 WHITNEY PLACE

[74] The parties agree that only Whitney and Reid’s are in issue in these proceedings. The Applicants make no claim in relation to a third property which is referenced in the materials – a property located at 115 Whitney Place (the property that housed Ed Lau Ironworks).

[75] Tab 7 in the compendium provided to me during the proceedings appears to show a transfer of 115 Whitney Place from Albert alone, to Albert, Sharon and Tom as joint tenants, and references instrument WR259522 (this is a different instrument number to the transfer of 125 Whitney Place, which is WR259510). At Tab 15 in the Compendium, the parties have included what appear to be the transfers of each of 115 and 125 Whitney Place, both transferred from Albert, Sharon and Tom to the recent purchaser Seamon Holdings Inc.

[76] Notwithstanding those documents, no claim is made by Sharon or Tom in relation to 115 Whitney Place and as such I have made no determination of interests in relation to that property.

CONCLUSION

[77] 37 REID’S POINT ROAD: I find that Sharon Lau-Wiffin and Tom Wiffin each have a legal and beneficial one-third interest in the property at 37 Reid’s Point Road. Since they are already on title as tenants in common with Albert Lau, no further order is necessary.

[78] 125 WHITNEY PLACE: The parties have agreed that the gross sale proceeds from the sale of both 115 and 125 Whitney Place were $1,325,800 and that the net proceeds from the sale that are properly allocated to 125 Whitney Place is $885,685.34.

[79] I find that Albert Lau intended to gift a beneficial interest in 125 Whitney Place to Sharon Lau-Wiffin and Tom Wiffin. I find that Sharon Lau-Wiffin and Tom Wiffin are each entitled to one-third of the net proceeds of the sale of 125 Whitney Place, or $295,228.44 each, the amount agreed to by the parties as representing one-third of the available proceeds from the sale. I hereby direct Lennox & Penney Professional Corporation to pay the sum of $295,228.44 to each of Tom Wiffin and Sharon Lau-Wiffin. In addition, prejudgment interest in accordance with s.128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, and post judgment interest in accordance with s.129 of the Courts of Justice Act, shall both be paid in relation to the amounts ordered herein. I direct Lennox & Penney Professional Corporation to pay remainder of the proceeds from the sale of 125 Whitney Place to the Estate of Albert Lau, less the costs awarded, which shall be determined as per my direction below.

[80] The claim for a declaration of constructive trust is dismissed.

[81] The counter application by the estate of Albert Lau seeking a declaration that Sharon Lau-Wiffin and Tom Wiffin held title of each of 125 Whitney Place and 37 Reid’s Point Road in trust for him is dismissed.

COSTS:

[82] I would urge the parties to agree on costs. If they are unable to do so, then costs submissions may be made as follows:

a. Within 15 calendar days of the distribution of these reasons to counsel, the Applicants shall serve and file their written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and

b. The Respondent shall serve and file its responding costs submissions of no more than three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers, within 25 calendar days of the distribution of these reasons; and

c. The Applicants’ reply submissions, if any, are to be served and filed within 30 calendar days of the distribution of these reasons, and are not to exceed two pages.

d. If no submissions are received within times allocated, the parties will be deemed to have resolved the issue of the costs, and costs will not be determined by me.

S. Antoniani J.

Released: January 10, 2024

COURT FILE NO.: CV-21-00000810-0000

DATE: 20240110

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Thomas Wiffin and Sharon Lau-Wiffin

Applicants

– and –

Ed Lau Ironworks Limited and the Estate of Albert Edward Lau, by its Estate Trustee Elizabeth-Liza Lau

Respondents

REASONS FOR DECISION

S. Antoniani, J.

Released: January 10, 2024