DATE: September 26, 2024

SUPERIOR COURT OF JUSTICE – ONTARIO (North Bay)

RE: MICHELE JEANNE LABERGE GAREAU, Plaintiff/ Defendant to Counterclaim

AND

JOANNE MARIE LABERGE GAREAU and JEANNE LUCY LABERGE GAREAU, Defendants/Plaintiffs by Counterclaim

BEFORE: Justice J.S. Richard

COUNSEL: Brianna K. Johns, for the Plaintiff Michele Jeanne Laberge Gareau Joseph D. Kennedy, for the Defendant Joanne Laberge Gareau Jeanne Lucy Laberge Gareau, unrepresented

HEARD: September 8, 2024

REASONS FOR DECISION

Overview

[1] This matter involves a dispute over farmland between a mother and her two daughters. In a nutshell, the mother purchased farmland abutting her home in 1996. At the time, her daughters were 9 and 11 years old. Title to the farmland was registered to the mother “in trust” for the daughters. In 2019, the mother brought an action seeking to be declared the beneficial owner of the farmland stating she never intended on registering the farmland as a trust.

[2] The daughters dispute this version of events and brought a counterclaim arguing that, at the very least, they have an interest in the farmland by way of a constructive trust resulting from 10 years of sweat equity. The mother says the farmland has a value of approximately $568,000, while the daughters say it has a value of $980,000.

[3] Within the action and counterclaim, the mother now brings a motion asking the court to “correct” title, which, on a practical level, constitutes a motion for partial summary judgment.

Facts

[4] In or around 1996, the Plaintiff was separating from her then spouse. According to her evidence, at the time she was purchasing four parcels of land (the “Farmland”) that abutted her home, which also had a farm.

[5] On September 13, 1996, the transaction for the purchase of the Farmland was completed for a purchase price of $152,000. Title was registered as “Laberge Gareau, Michele Jeanne In Trust for Joanne Marie Laberge Gareau and Jeanne Lucy Laberge Gareau.” A charge/mortgage was also registered on the Farmland against Plaintiff for approximately $96,000.

Plaintiff’s Position

[6] The Plaintiff submits that at the time of the Farmland purchase, she was concerned about the Farmland merging with her home pursuant to the Land Titles Act. According to her evidence, she instructed her lawyer, Ronald McMillan, to register the Farmland in her name as “Michele Laberge Gareau” since the abutting home would be registered in her name as “Michele Gareau.” Ultimately, Mr. McMillan registered the Farmland in the Plaintiff’s name to be held in trust for two daughters, who were 9 and 11 years old at the time.

[7] Despite acknowledging having received a reporting letter from Mr. McMillan dated September 20, 1996, confirming that the Farmland had been registered as a trust, the Plaintiff denies being aware of the trust and its implications. Her evidence states that she did not know or appreciate the legal effect of the legal documents she signed, and instead always believed she was the owner explaining that she acted as such since she paid for the mortgage, taxes and utilities.

[8] To sum up, the Plaintiff takes the position that she never intended to create a trust, that she was not aware of the trust until she tried to sever the Farmland in 2017, and that the trust was simply a misunderstanding or mistake made by her lawyer, Mr. McMillan. No trust agreement was ever drafted, and the Plaintiff never pursued Mr. McMillan legally, nor did she file a complaint with the Law Society of Ontario.

Position of the Defendants

[9] Over the years following the purchase of the Farmland, Defendant Joanne Marie Laberge Gareau became involved in the farming business, and it is admitted by the Plaintiff that she did pay for some of the expenses related to the Farmland. Joanne Marie Laberge Gareau opposes the motion on the following grounds:

a. The motion seeking to correct title is improperly brought, and ought to have been brought as an Application, contrary to the legislation, and contrary to the Rules of Civil Procedure;

b. This trial will essentially come down to an “oral contest” between the parties and this “piecemeal attempt” by the Plaintiff’s mother to obtain partial summary judgment when the issues are all inextricably intertwined, is simply inappropriate.

[10] The Defendant, Jeanne Lucy Laberge Gareau, did not appear at the motion, nor did she file materials. She is defending the action, however, and both Defendants have filed counterclaims claiming constructive trusts and equitable rights to the Farmland on the basis of contribution by way of labour and expenses.

[11] Since Jeanne Lucy Laberge Gareau did not participate in this motion, I will refer to Joanne Marie Laberge Gareau as the “Defendant”.

[12] In a nutshell, the Defendant argues that the circumstances surrounding the creation of the trust will turn entirely on credibility, which is a triable issue on its own that is also inextricably linked to the constructive trust claims.

Issues

[13] The issues of this motion are as follows:

a. Is the relief sought by the Plaintiff in this motion procedurally barred?

b. If not, should partial summary judgment be granted to the Plaintiff?

1. Motion procedurally barred?

[14] The Plaintiff brings this motion seeking:

a. Leave to bring a partial summary judgment motion on the issue of title to the Farmland pursuant to Rule 20;

b. Partial summary judgment by way of a “rectification” of title to the Farmland that declares the Plaintiff as sole owner and holder of title;

c. Costs.

[15] The Defendant argues that the Plaintiff’s motion is procedurally flawed such that it is fatal to the motion. Specifically, she argues that the remedy sought can only be granted by way of Application, not within an action, as is being sought.

[16] The Plaintiff recognizes that requesting this relief normally ought to be requested by way of a Notice of Application, instead of within an action. The Plaintiff highlights, however, that she originally commenced this action in 2019 with different counsel, and was unrepresented for some time thereafter. The Plaintiff ultimately argues that for reasons of efficiency and expediency, the court ought still to grant the partial summary judgment, and that it has the authority to do so under Rule 1.04(1) of the Rules of Civil Procedure (the “Rules”), which states that the Rules “shall be liberally construed to secure the just, more expeditious and least expensive determination of every civil proceeding on its merits.”

[17] The Defendant submits that the court may not grant the “correction” of title as it was never requested under Rule 14.02 and Rule 14.05(3), as statutorily required by the Land Titles Act, 1990 R.S.O. c.L-5 (the “Land Titles Act”).

[18] Rule 14.02 states:

Proceedings by Action as General Rule

14.02 Every proceeding in the court shall be by action, except where a statute or these rules provide otherwise. R.R.O. 1990, Reg. 194, r. 14.02. (Emphasis added)

[19] Rule 14.05(3) reads:

Application under Rules

14(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges;

[20] In addition, section 159 of the Land Titles Act reads:

Court may order rectification

159 Subject to any estates or rights acquired by registration under this Act, where a court of competent jurisdiction has decided that a person is entitled to an estate, right or interest in or to registered land or a charge and as a consequence of the decision the court is of opinion that a rectification of the register is required, the court may make an order directing the register to be rectified in such manner as is considered just. R.S.O. 1990, c. L.5, s. 159.

[21] Section 159 of the Land Titles Act, therefore, allows the Court, on its own initiative, to rectify title as part of a remedy within an action where it is of the opinion that a rectification is required as a result of a decision it has made. For example, if the court found that either the Plaintiff or the Defendants proved the existence of a constructive trust, then the court could direct that the register be rectified to reflect ownership.

[22] If a person seeks a declaration of ownership, however, she or he is bound by section 160 of the Land Titles Act, which must be done by way of an Application:

Application to court to rectify

160 Subject to any estates or rights acquired by registration under this Act, if a person is aggrieved by an entry made, or by the omission of an entry from the register, or if default is made or unnecessary delay takes place in making an entry in the register, the person aggrieved by the entry, omission, default or delay may apply to the court for an order that the register be rectified, and the court may either refuse the application with or without costs to be paid by the applicant or may, if satisfied of the justice of the case, make an order for the rectification of the register. R.S.O. 1990, c. L.5, s. 160; 2012, c. 8, Sched. 28, s. 88. (Emphasis added)

[23] Interpreting the above sections of the Land Titles Act in conjunction with Rule 14, it is clear that the Plaintiff should be seeking this relief by way of an Application under section 160 of the Land Titles Act.

[24] Courts have commented that the Superior Court’s discretionary jurisdiction to grant declaratory relief cannot be exercised in a vacuum, and that where legislation deals with the subject matter, it must be respected (Bazos v. Bell Media Inc. 2018 ONSC 6146).

[25] A parallel may be drawn from Paccar Financial Services Ltd. v. 2026125 Ontario Ltd., 2014 ONSC 456 (SJC) where the court dismissed a party’s motion seeking an order for possession under s.67 of the Personal Property Security Act, R.S.O. 1990 c. P.10 (the “P.P.S.A”) on the basis that the request had been made within a motion rather than by way of an Application, as was statutorily provided in the PPSA. Specifically, the court explained that the curative provisions in the Rules could not be used to override the statutory provisions of the PPSA:

18 Section 67(1) of the PPSA allows the Superior Court of Justice to grant a range of orders at the request of, among others, a secured party "[u]pon application". They include "binding declarations of right" and "any order necessary to ensure protection of the interests of any person in the collateral".

20 While the word "application" is not defined in that statute, it is defined in s. 1(1) of the CJA [Courts of Justice Act, R.S.0., 1990, c.C.43] as "a civil proceeding that is commenced by notice of application or by application". The Rules narrow the definition to a proceeding commenced by notice of application.

21 As noted, this proceeding was not commenced in that fashion. It was commenced by notice of action. Rule 14.02 provides that every proceeding is to be by action, except where a statute or the rules provide otherwise. In my view, the PPSA is such a statute.

22 Some may question why it matters. A proceeding comes before the court whether commenced by action or application. Each is an originating process.

23 Rule 2.01(1) provides that a failure to comply with a rule "is an irregularity and does not render a proceeding or a step...a nullity". Rule 2.01(2) provides that an originating process is not to be set aside on the ground when another one should have been employed.

24 However, it does matter. Curative rules of civil procedure are not a license to ignore a statute's requirements. Lukezic v. Royal Bank of Canada, 2012 ONCA 350, illustrates the point. In that case, an order declaring a person to be a vexatious litigant was set aside when made on motion rather than by application as s. 140 of the CJA mandated.

25 The fact that the plaintiff's access to justice was curtailed clearly played an important role in Lukezic, supra. However, I do not read the decision as one limited to that topic. Goudge J.A. noted that a notice of application is "clearly different from an interlocutory motion".

26 Those differences are not cosmetic. By way of example only, an affidavit filed in support of a motion may contain statements of the deponent's information and belief. An affidavit filed in support of an application must confine such statements "to facts that are not contentious": see rules 39.01(4) and (5). Much of the solicitor's affidavit in this case is based on information and belief. (…)

27 The affidavit strays beyond issues which can be termed "not contentious".

[26] Similarly to the Paccar Financial Services Ltd. v. 2026125 Ontario Ltd case, the Land Titles Act clearly sets out that a person may request the declaratory relief being sought by the Plaintiff by way of an Application, and this is by design for the same reasons explained by the court in that case.

[27] Not only do affidavits filed in support of each position contradict one another in relation to the versions of events with respect to the creation of the trust and intentions behind the transfer, transcripts from the examinations for discovery were relied upon by each side to support their respective positions for this motion. Without going into the specifics of discrepancies as it is unnecessary to do so at this stage, there is a clear lack of agreement on the facts and they are significantly contentious.

[28] Thus, similarly, this proceeding was commenced by notice of action and Rule 14.02 provides that every proceeding is to be by action, except where a statute or the Rules provide otherwise. In my view, not only does Rule 14.05(3) expressly prohibit this relief under an action, the Land Titles Act is such a statute.

[29] While Rule 1.04(1) may direct the courts to liberally construe the Rules, construing liberally does not extend to the overriding of a statute. Nor does Rule 2.02.

[30] Thus, this motion for partial summary judgment must necessarily be dismissed as the court does not have the authority or jurisdiction to grant the order sought.

Partial Summary Judgement

[31] Even if I am incorrect in my interpretation of the Rules such that the court does have the authority and jurisdiction to make a declaration on title on the basis of a partial summary judgment, the Plaintiff does not meet the test for summary judgment in any event.

[32] Summary judgment motions, whether partial or full, are governed by Rule 20:

20.01 (1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim. R.R.O. 1990, Reg. 194, r. 20.01 (1). (…)

20.04(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (…)

[33] The Plaintiff submits that there is no genuine issue for trial on the question of title because the Defendants, up to and until 2017, understood that the Plaintiff was the owner of the Farmland. According to Defendants’ evidence, however, both daughters have “always understood and believed” that the Farmland was registered in trust because it belonged to them. In addition, The Defendants’ appraisal values the Farmland at almost double the value estimated by the Plaintiff’s appraisal.

[34] The Plaintiff argues that she never had any intention of creating the trust, suggesting that it was merely an “error to title” The Defendants take the position that the Plaintiff intended to create the trust because she promised them the land, but that she subsequently changed her mind due to the mother-daughter conflict.

[35] The action includes competing evidence seeking to establish equitable claims. Even if title was “rectified” as being merely an error, at trial the Plaintiff will seek restitution of monies she contributed to the Farmland, the Defendants will seek restitution of monies they have contributed to the Farmland, and the Defendants will be claiming sole ownership of the Farmland and ask the court to make an order under s. 159 of the Land Titles Act. Oral testimony will be part of the trial.

[36] As we know, partial summary judgment should only be granted in the clearest of cases (Truscott v. Co-operators General Insurance Co., 2023 ONCA 267, at para. 54). This is not one of those cases- especially in the context of the litigation as a whole. Summary judgment is a tool available to serve the objectives of proportionality, efficiency and cost-effectiveness. If title is “corrected” by way of this motion, the issues left to be litigated essentially render this “correction” futile, since the same question, and essentially the same relief, will be determined at trial.

[37] As was the case in Truscott v. Co-operators General Insurance Co. (see para. 59), the significant overlap on the facts relating to the issues for trial and those underlying the issues in the partial summary judgment render this motion inappropriate. At paragraph 59, moreover, the Court of Appeal explained:

The factual findings must be left to the trial judge who, with the benefit of hearing all the oral testimony and further productions, will have a fuller appreciation of what transpired and the relationships among the parties, an appreciation that is crucial to fairly decide the allegations in the Claim.

[38] Such is the case here, and therefore, the Plaintiff’s motion must be dismissed with costs to Joanne Marie Laberge Gareau, on a partial indemnity basis.

Justice J.S. Richard

Date: September 26, 2024