CITATION: Wai-Keung Kwan v. Kalsang, 2025 ONSC 124

COURT FILE NO.: CV-22-1427

and CV-21-3525

DATE: 20250115

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WAI-KEUNG KWAN and MANJUSHRI BUDDHIST CENTRE INC.

Applicants

– and –

FNU TENZIN KALSANG as testamentary Executor and Trustee of the ESTATE OF LOBSANG JAMYANG

Respondent

Anne Posno, for the Applicants (Respondents in CV-21-3525)

Michael Bergman and Patrycja Nowakowska, for the Respondent (Applicant in CV-21-3525)

HEARD: November 12, 13, 14 and 27, 2024

judgment

Justice c. petersen

Table of Contents

OVERVIEW... 2

Nature of the Proceeding. 2

The Parties and Their Positions. 2

Undisputed Background Facts. 3

Centrality of the September 30, 2011 Transaction. 7

WITNESSES’ CREDIBILITY AND RELIABILITY.. 8

Mr. Kwan’s Evidence. 8

Ms. Natalie’s Evidence. 9

Mr. Kalsang’s Evidence. 12

Dr. Tôn Nữ’s Evidence. 14

Ms. Cathy’s Evidence. 15

IDENTIFICATION OF ISSUES IN DISPUTE.. 16

ANALYSIS. 18

Was There Certainty of Intention to Create a Trust?. 18

Was There Certainty of Object(s) of the Trust?. 25

Does the Statute of Frauds Preclude the Trust?. 33

Have MBC and Mr. Kwan Complied with the Evidence Act?. 35

CONCLUSIONS. 36

COSTS. 36

OVERVIEW

Nature of the Proceeding

1This file consists of two separate Applications that were consolidated. The Court ordered a trial of a common issue, namely determination of the beneficial ownership status of a piece of property located at 1926 Burnhampthorpe Road East in Mississauga, Ontario.

The Parties and Their Positions

2Registered legal title to the property reflects that the late Lobsang Jamyang held a 99% ownership interest and Wai-Keung Kwan holds a 1% ownership interest.

3Lobsang Jamyang was a renowned and well-respected Manjushri Buddhist monk who died in Longueil, Quebec on November 15, 2020. The parties and witnesses in this proceeding referred to him by his religious title “Master Lobsang”, so I will adopt that nomenclature in this Judgment.

4Fnu Tenzin Kalsang is one of Master Lobsang’s nephews. He is also the Executor of Master Lobsang’s estate, as well as a beneficiary of the estate, pursuant to a will executed by Master Lobsang in California on May 30, 2019. Master Lobsang bequeathed the entirety of his estate to Mr. Kalsang and his brother. The property at issue in this proceeding is not specifically mentioned in the will.

5Mr. Kalsang takes the position that Master Lobsang owned a 100% beneficial interest in the property, which devolved to his estate upon his death. Mr. Kalsang seeks a declaration that the property forms part of the estate. He also seeks an Order requiring Mr. Kwan to transfer his 1% registered legal interest in the property to the estate on the basis that Mr. Kwan’s interest is held in trust for Master Lobsang.

6Mr. Kwan is a businessman, philanthropist, and Buddhist practitioner. He asserts that his 1% legal ownership interest in the property is held in trust for Manjushri Buddhist Centre Inc. (“MBC”). MBC is a not-for-profit corporation with registered charitable status in Ontario.

7MBC and Mr. Kwan take the position that MBC acquired 100% beneficial ownership of the property based on an express or implied trust created by the property’s former owner, Lệ Ba Tôn Nữ (“Dr. Tôn Nữ”), on September 30, 2011. Alternatively, MBC asserts a beneficial ownership interest in the property based on a charitable purpose trust created at that time. In the further alternative, MBC seeks a court Order imposing a constructive trust in its favour based on the doctrine of unjust enrichment.

8Mr. Kalsang disputes the trust claims made by MBC and Mr. Kwan. He argues that neither the elements of a trust nor the elements of unjust enrichment have been established. He further submits that the trust claims are defeated by provisions of the Evidence Act, R.S.O. 1990, c. E.23, and the Statute of Frauds, R.S.O. 1990, c. S.19. In reply, MBC and Mr. Kwan argue that they have satisfied the requirements of the Evidence Act and that the Statute of Frauds does not apply in the circumstances of this case.

9Two of the witnesses in this proceeding, Thị Hẳng Giang Nguyễn (“Ms. Cathy”) and Phụng Nguyễn Tuyết Nguyễn (“Ms. Natalie”), share the same surname. To avoid confusion, I will refer to them by their chosen English names in this Judgment. I mean no disrespect.

Undisputed Background Facts

10The property was purchased by Dr. Tôn Nữ for $372,000 on November 30, 2007. Title was registered in her name and in the name of Chen Wang (a Buddhist Master monk) as equal tenants in common. Dr. Tôn Nữ financed the transaction with her personal savings, supplemented by a mortgage loan registered on title to the property. Master Wang did not contribute financially to the purchase price or closing costs.

11At that time, Dr. Tôn Nữ was working as a dentist in Mississauga. She was a devout Buddhist practitioner. Her uncontested evidence is that she purchased the property to have a place of worship where Buddhist monks could preach Buddhism to followers. She testified that she put Master Wang on title to the property when she purchased it so that he could teach Buddhism there, because she “wanted to propagate the philosophy of Buddhism.”

12Dr. Tôn Nữ constructed an extension to the house on the property. She added two rooms and a prayer hall, which she adorned with a Buddhist shrine, and paintings and statues of Buddha and other Buddhist deities. The extension cost approximately $183,000. Dr. Tôn Nữ borrowed from members of the local Buddhist community to fund the renovations. Master Wang did not contribute financially.

13Master Wang lived at the property and offered blessings and teachings to those who attended the property. Dr. Tôn Nữ’ and Master Wang welcomed Buddhist practitioners to the property to engage in worship and to study Buddhism.

14Dr. Tôn Nữ testified that Master Wang named the property Đạo Tràng Dược Sư, which translates in English to “Medicine Buddha Temple.” She further testified that this name was known within the local Buddhist community. Her evidence on this point is uncontradicted and is corroborated by Ms. Cathy, who testified that she attended religious preaching sessions at the Medicine Buddha Temple after reading announcements about them in Thời Báo, a local Vietnamese language magazine.

15From November 30, 2007 until September 29, 2011, Dr. Tôn Nữ paid all the utilities and carrying costs for the property, including the mortgage payments.

16In 2009, Master Wang moved away from Ontario, so he transferred his 50% interest in the property to Dr. Tôn Nữ. No money was exchanged.

17After Master Wang left, Dr. Tôn Nữ started living at the property. She continued to welcome Buddhist monks and followers to the property for worship and study. Although she continued to refer to the property as “Medicine Buddha Temple”, she conceded (in cross-examination on her affidavit) that during the period from 2009 to September 2011, the property was used as her residential dwelling, although she frequently hosted religious activities for other Buddhist practitioners.

18In or about 2010, Dr. Tôn Nữ decided to retire from the practice of dentistry and become a Buddhist nun. She is now the Abbott in residence at Hải Ấn temple in Nanaimo, British Columbia. Her uncontested evidence is that, when she became a Buddhist nun, her vows required that she relinquish attachment to material goods. She therefore began to look for someone to whom she could transfer ownership of the property.

19In the summer of 2011, another Buddhist practitioner named Ms. Cathy introduced Dr. Tôn Nữ to Master Lobsang. I heard conflicting evidence about the ensuing meetings and conversations that occurred between Dr. Tôn Nữ, Master Lobsang, and a student of Master Lobsang named Ms. Natalie. The relevant evidence is reviewed later in this Judgment.

20On September 30, 2011, registered title to the property was transferred from Dr. Tôn Nữ to Master Lobsang and Ms. Natalie as tenants in common with equal 50% interests. Ms. Natalie paid a total consideration of approximately $430,000 for the transaction. She acquired a mortgage loan in the amount of $279,250 and financed the remainder of the purchase price with her personal savings.

21Master Lobsang did not contribute financially to the purchase or transaction costs. His name appears on the mortgage documents, but Ms. Natalie made all the mortgage loan payments from September 30, 2011, until she disposed of her interest in the property on August 12, 2015.

22The consideration paid by Ms. Natalie for the property was below market value. There is no expert evidence in the trial record about the market value of the property at that time, but there is uncontested evidence that Dr. Tôn Nữ understood it to be in the range of $650,000 to $700,000. Dr. Tôn Nữ explained that she only asked for sufficient funds to discharge her mortgage loan and reimburse the amount she had borrowed from members of the community to renovate the property. She did not profit from the sale.

23Since the transfer of title on September 30, 2011, MBC has spent approximately $130,000 on renovations and repairs to the property. Among other things, in 2013, a wall was removed inside the building to expand the prayer hall. The living room area and dining area were converted to form part of the worshipping area. New hardwood floors were installed in the prayer hall. In 2014, the parking lot was resurfaced. Extensive landscaping was also performed.

24There is no documentary proof of who paid the property taxes and utilities for the property between September 30, 2011 and August 11, 2015. Ms. Cathy testified that MBC paid the bills through donations from its congregation. She was not challenged on that evidence. There is no evidence that anyone else paid the taxes and utilities during that period, so I accept her uncontradicted evidence as the most likely scenario.

25In the summer of 2015, Ms. Natalie could no longer afford to make the mortgage payments. One of Master Lobsang’s followers, Alice Mei Kuen Chan, approached Mr. Kwan, who agreed to assume responsibility for the mortgage. On August 12, 2015, Ms. Natalie transferred a 49% registered interest in the property to Master Lobsang, and her remaining 1% registered interest to Mr. Kwan. No consideration was paid for the transaction. The balance owing on the mortgage as of the date of transfer of title was approximately $214,000. Ms. Natalie did not seek or receive reimbursement of the money she invested in the property between September 30, 2011 and August 11, 2015.

26Since August 12, 2015, Mr. Kwan has made all the mortgage payments (totalling approximately $157,000) and MBC has paid all utilities associated with the property (approximately $20,000) and all property taxes (approximately $34,000). Mr. Kwan also donated a total of $50,000 to pay for expenses related to the property. He received charitable tax receipts from MBC for those donations.

27The chart below summarizes the transactions regarding registered legal title to the property:

Date of Transaction

Registered Legal Owners

November 30, 2007

Dr. Tôn Nữ (50%) and Master Wang (50%)

2009

Dr. Tôn Nữ (100%)

September 30, 2011

Ms. Natalie (50%) and Master Lobsang (50%)

August 12, 2015

Master Lobsang (99%) and Mr. Kwan (1%)

Centrality of the September 30, 2011 Transaction

28MBC claims that an express or implied trust was created by Dr. Tôn Nữ on September 30, 2011, such that Master Lobsang’s and Ms. Natalie’s respective 50% ownership interests were each held for the exclusive benefit of MBC. Mr. Kalsang disputes this claim. He submits that full beneficial ownership was transferred from Dr. Tôn Nữ to Master Lobsang on September 30, 2011. In other words, he agrees that a trust was imposed on the property, but he asserts that the trust was for the benefit of Master Lobsang personally and not for the benefit of MBC.

29Mr. Kalsang relies on the testimony of Ms. Natalie, who stated that she purchased the property as a gift for Master Lobsang to use as his personal residence. There is conflicting evidence in the record about how the property was used after September 30, 2011. MBC’s position is that it functioned exclusively as a Buddhist temple, continuously until the present day. Mr. Kalsang asserts that it was his uncle’s private residence. He submits that, at most, one room in the building was used for worship services, which is not an uncommon practice in the private homes of Buddhists.

30Ms. Natalie testified that, when she gave away her 50% interest in the property in August 2015, her intention was to gift full ownership of the property to Master Lobsang personally, but Ms. Chan told her that she had to put Mr. Kwan on title for 1% as a formality because he would be holding the mortgage. Mr. Kalsang relies on this evidence to assert that Mr. Kwan’s 1% interest in the property is held in trust for the benefit of Master Lobsang.

31Mr. Kwan’s position is that he holds his 1% interest in trust for MBC. He deposed that, when he agreed to assume the mortgage on the property, he had been advised by Ms. Chan that the property belonged to MBC. (That evidence is not admitted for the truth of the content of Ms. Chan’s out-of-court statement to him, but rather only to explain how Mr. Kwan came to his understanding of the nature of the interest he acquired in the property.) He testified that he learned from Ms. Chan that the person who had been paying the mortgage for the property was no longer willing to continue doing so. He said Ms. Chan asked if he would be willing to take responsibility for the mortgage payments as a philanthropic gesture. He testified that he agreed to do so because he wanted “to keep the temple to the public for the believers.” He had attended prayer sessions at the property in the past.

32The current registered legal ownership interests in the property were created on August 12, 2015, but the beneficial ownership of the property cannot be determined simply by examining the circumstances surrounding the transaction on that date. Rather, I must go back to the previous transaction on September 30, 2011 to ascertain what ownership interests were created at that time.

33It is axiomatic that, in August 2015, Ms. Natalie did not have the ability to transfer better title to the property than she possessed. This is a fundamental principle of common law expressed by the Latin maxim nemo dat quod non habet (“no one gives who does not possess”): Green v. Green, 2015 ONCA 541, at para. 53; Campbell v. Brar, 2024 MBCA 72, at para. 66. Consequently, if Ms. Natalie’s 50% interest in the property was always subject to a trust in favour of MBC, then she could not have gifted any beneficial ownership interest to Master Lobsang in 2015. The focal point of my analysis must therefore be whether a trust in favour of MBC was settled on September 30, 2011.

WITNESSES’ CREDIBILITY AND RELIABILITY

34Before turning to the legal issues, I will comment on the credibility and reliability of the parties’ witnesses.

Mr. Kwan’s Evidence

35Mr. Kwan swore an affidavit and was cross-examined on the affidavit outside of court. The parties agree that the affidavit and the transcript of his cross-examination form part of the trial record.

36I have no concerns about the trustworthiness of Mr. Kwan’s evidence. His credibility was not challenged on cross-examination or during closing submissions.

37Mr. Kwan’s evidence is, however, of limited assistance because his involvement started in 2015. He was not involved in the September 30, 2011 real estate transaction and has no personal knowledge of what transpired at that critical time.

Ms. Natalie’s Evidence

38Ms. Natalie swore an affidavit, was cross-examined on the affidavit outside of court, and then testified before me during the trial. The parties agree that her affidavit and the transcript of her previous cross-examination form part of the trial record.

39Ms. Natalie’s evidence is of central importance to material issues in dispute. However, there are grievous deficiencies in her credibility. Those deficiencies may be summarized as follows.

40Her evidence is internally inconsistent regarding the conversation she had with Dr. Tôn Nữ, in the presence of Master Lobsang, before they agreed to buy the property from Dr. Tôn Nữ in the summer of 2011. During her examination in chief at trial, she gave several conflicting accounts of what she told Dr. Tôn Nữ was the reason why she and Master Lobsang wanted to purchase the property. Initially, she stated that they simply told Dr. Tôn Nữ they liked the Buddhist statue in the yard and the worship room, and would like to buy the property, “but other than that, we don’t say anything else.” Later, she said she told Dr. Tôn Nữ that the purpose of her interest in the property was “so that [Master Lobsang] has a place where he can practice and to preach and help other worshippers to learn about the religion.” She then expressly resiled from that statement and insisted that she never mentioned anything like that to Dr. Tôn Nữ.

41Another internal inconsistency is found in the transcript of Ms. Natalie’s cross-examination on her affidavit. She initially acknowledged that, when she visited the property before purchasing it in 2011, she saw that Dr. Tôn Nữ “had made it into a temple for people to worship there.” She subsequently contradicted herself and denied knowing that it had been renovated into a temple before she purchased it.

42Ms. Natalie’s professed ignorance of certain facts is so implausible as to strain credulity. For example, she claimed not to know whether Master Lobsang was a Manjushri Buddhist monk (Manjushri Buddhism being a particular form of Buddhist practice). This is simply not believable given that she first met him at the Manjushri Buddhist Centre in Longueil, where he resided, preached and taught; that she visited him at the Manjushri Buddhist Centre in Longueil on “many many” occasions over the years; that she also visited him at his training centre in India; that he periodically visited the Greater Toronto Area (“GTA”) and stayed in her home, where he conducted Buddhist teachings for two to four days at a time between 2003 and 2011; and that she followed his teaching closely for about 17 years. In the circumstances, it is simply not believable that she was unaware that he was a monk who practiced Manjushri Buddhism.

43Even more dubiously, Ms. Natalie claimed not to know that she was appointed a Director and Secretary of MBC and was later appointed President of MBC. The documentary record establishes that her initial appointment occurred on August 26, 2011. She became the President on November 3, 2011. The documentary record also shows that she eventually resigned as Director and Officer of MBC on June 30, 2015. Her professed ignorance of her appointments and subsequent resignation is belied by the following facts: she signed two documents consenting to act as a Director and Officer of the corporation; while she was Secretary, she signed charitable tax receipts for donors on behalf of MBC; and she ultimately signed a resignation from her positions with MBC.

44Ms. Natalie recalled signing the corporate documents but stated that her English proficiency was not good in 2011 and 2015. She testified that she was unable to read or understand the English documents she signed. She said she signed them without asking any questions about their content because Master Lobsang and one of his close disciples, Alice Chan, asked her to do so.

45Ms. Natalie was born in Vietnam and immigrated to Canada in 1993. She has limited formal education and no education in English. Her first language is Vietnamese. She swore her affidavit in English but testified at trial with the aid of a Vietnamese/English interpreter. She said her English fluency has improved considerably since the signing of the corporate documents in question, which I do not doubt.

46I accept that Ms. Natalie did not have sufficient English fluency to read and fully understand the terms of the Agreement of Purchase and Sale (“APS”) that she executed on August 23, 2011, and the terms of the subsequent APS that she executed in 2015. Those documents are lengthy and written in complex legal terminology. They are inaccessible even to many native English speakers. However, I do not believe that Ms. Natalie’s command of the English language was so poor in 2011 and 2015 that she did not know what she was doing when she signed the MBC corporate documents and charitable tax receipts.

47The corporate documents are not all written in plain English. MBC’s Resolution entitled Appointment of Officers dated August 26, 2011 contains some legal terminology (e.g., hereby, whereas, forthwith), which may have been beyond Ms. Natalie’s grasp in 2011. However, she testified that when she signed the Consent to Act as a Director of the Corporation that same day, she could not even read or understand the first line of the document which states, “TO: MANJUSHRI BUDDHIST CENTRE INC.” Similarly, she testified that when she signed MBC’s Resolution entitled Appointment of Officers on November 3, 2011, she could not read or understand the word “President” written beside her name. I find that testimony to be not credible based on other evidence regarding her English language proficiency at that time.

48Ms. Natalie testified that she studied for and successfully passed a multiple-choice written English language test when she obtained her Canadian citizenship in or around 1998. She said she started her business as an esthetician in or about 2004 or 2005, and she confirmed that she rents commercial space for the business and manages three employees. She stated that most of her clients communicate with her in English. Given these circumstances, I find it improbable that she would not have been able to read and understand the above-noted simple words on MBC’s corporate documents in the fall of 2011.

49The charitable tax receipts that she signed in October 2011 are short and written in plain English. The MBC resignation letter that she signed on June 30, 2015 is only one sentence long and is written in simple English. I find it improbable that she could not read and understand those documents on the dates that she signed them.

50Furthermore, it is not believable that a woman who has demonstrated sufficient financial and business acumen to operate a successful small business in Ontario for the past twenty years would have repeatedly signed MBC corporate documents that she could not read without asking someone what they were about. I appreciate that she respected Master Lobsang and wanted to please him, but I reject her evidence that she signed the documents with no knowledge of what they entailed simply because he or one of his disciples “asked her to make some paperwork.”

51Ms. Natalie also claims not to be aware that MBC has been using the property’s municipal address as its address since 2011. She professes ignorance of this fact despite having signed multiple MBC charitable receipts from as early as October 2011 with the address printed prominently on the receipts. It is simply not credible that she did not notice or recognize the address of her own property (for which she paid $430,000) on the receipts.

52Finally, Ms. Natalie testified that the first time she learned of the existence in the GTA of a corporation called MBC was when she was cross-examined on her affidavit in this proceeding in September 2022. That statement is simply not believable given that she signed the MBC corporate documents in 2011 and 2015, was as an Officer of the corporation for four years and signed official charitable tax receipts as Secretary of the corporation during those years. I conclude (on a balance of probabilities) that, despite her limited English fluency, she was not only aware of the existence of MBC but also knew that she had been appointed as a Director and Officer of MBC in August 2011.

53The above are only some examples of the implausibility of Ms. Natalie’s testimony. I find that her evidence generally lacks credibility. I therefore reject her evidence on disputed issues except to the extend that it is corroborated by independent credible evidence.

Mr. Kalsang’s Evidence

54Mr. Kalsang swore an affidavit and was cross-examined on the affidavit outside of court. The parties agree that his affidavit and the transcript of his cross-examination form part of the trial record.

55Upon review of the transcript of Mr. Kalsan’s cross-examination, I concluded that I cannot trust his evidence because he demonstrated a proclivity for embellishment, was evasive in answering pertinent questions, and contradicted himself on material issues in dispute.

56A good example of the embellishment in Mr. Kalsang’s evidence is his assertion, during his cross-examination, that when Master Lobsang was not at the property in Mississauga, there were a few people who were living there and paying rent. It is undisputed that a few individuals have resided at the property over time, but there is no evidence that any of them paid rent.

57Ms. Cathy testified that a young Tibetan man who recently arrived in Canada is currently living at the property and “taking care of the ins and outs of the temple.” She testified that the mother of a monk from California lived at the property for a few years and maintained all the lighting of the temple. Ms. Natalie testified that the mother of another monk from India was living at the temple for a long time. When Mr. Kalsang was asked to whom these residents supposedly pay rent, he responded, “the rent that is paid is being used to clear off the loans mortgage.” That assertion is contradicted by an abundance of evidence. For example, Ms. Cathy stated unequivocally that none of the people who resided at the temple paid rent. She testified that they occasionally chipped in a small amount of money to help MBC pay the heat and hydro bills. Similarly, Ms. Natalie testified that the mother of the monk who resided at the temple did not pay rent. Furthermore, both Ms. Natalie (who carried the mortgage from September 2011 to August 2015) and Mr. Kwan (who carried the mortgage from August 2015 to present) confirmed that they never received any money from anyone to defray the mortgage costs. I believe Mr. Kalsang embellished his evidence with a false statement about individuals paying rent to try to persuade the court that the property was used as a private residence during Master Lobsang’s lifetime, rather than as a temple. He wanted to portray the residents of the property as tenants rather than as caretakers of the temple.

58The trustworthiness of Mr. Kalsang’s evidence was also marred by internal contradictions and inconsistencies on material issues. For example, during his cross-examination, he stated that his uncle (Master Lobsang) directed him to preserve the property as a place of worship for Buddhist practitioners. He said he was therefore planning to allow students of MBC to “continue to be able to worship” there. However, after his lawyer objected to a question about whether he would sign a legal document to commit to that stated intention, he changed his evidence completely. He then asserted that MBC had no links to the property, and that the property was just used as a residence by his uncle whenever his uncle was in Toronto. He insisted that the property was his uncle’s primary residence and was never used as a temple by students of MBC.

59Finally, Mr. Kalsang was evasive when asked questions that could potentially elicit evidence in support of MBC’s position, to the point that he refused to answer simple questions by MBC’s lawyer about his knowledge of the vows that are taken during monastic ordinations in the Buddhist faith. The questions were relevant because Dr. Tôn Nữ, Ms. Cathy and Mr. Kwan all swore that, to their knowledge and understanding of the tenets of the Buddhist faith, Master Lobsang was precluded from owning a beneficial interest in the property because of his monastic vows. While I do not need to determine whether the tenets of Buddhism impose such a restriction on monks, the plausibility of these witnesses’ evidence regarding their understanding of the vows is relevant to my assessment of their credibility.

60Mr. Kalsang was a monk for about 15 years, up until 2016 or 2017, so he is familiar with the Buddhist monastic vows, at least the ones that he took when he was ordained. If he confirmed that he was required to relinquish material goods upon his ordination, that would lend credibility to the other witnesses’ testimony about their understanding of the monastic requirements. During his cross examination, Mr. Kalsang was asked by Ms. Posno whether one of the vows made by a person when they become a Buddhist monk is to relinquish attachment to material goods. He responded, “since it is not relevant to the case, I would not be able to answer the question.” He similarly refused to answer whether a monk is entitled to own only their robes and a bowl. He repeated that he was not able to answer that question because it is “out of the scope of the case.”

61Ms. Posno asked me to draw an adverse inference based on Mr. Kalsang’s refusal to answer these questions. I agree that an adverse inference is appropriate in the circumstances. I infer that he refused to answer the relevant questions because he knew that truthful answers could potentially undermine his position in the litigation. In other words, truthful answers would have corroborated the credibility of the opposing witnesses’ evidence about their understanding of the nature of Master Lobsang’s vows.

62For all the above reasons, I reject Mr. Kalsang’s evidence on disputed issues except to the extent that it is corroborated by independent credible evidence.

Dr. Tôn Nữ’s Evidence

63Dr. Tôn Nữ swore an affidavit, was cross-examined outside of court on her affidavit, and then testified before me. The parties agree that her affidavit and the transcript of her previous cross-examination form part of the trial record.

64Dr. Tôn Nữ presented as a credible witness. Although she swore an affidavit in support of MBC’s Application, she readily conceded facts that do not advance MBC’s position. For example, she acknowledged that the APS executed in August 2011 described the property’s “present use” as “single family residential”, and she agreed that she read and understood the APS and did not ask for any changes to be made before she signed it. She also conceded that there is no written documentation stipulating a condition that the property had to be used as a Buddhist temple after the registered title was transferred to Master Lobsang and Ms. Natalie. Her candour with respect to these and other issues underscores her objectivity and enhances her credibility.

65Mr. Bergman conceded during closing submissions that Dr. Tôn Nữ appears to be a credible witness “who subscribes to the virtue of honesty.” He did not suggest that she attempted to mislead the court. However, he made a significant observation that casts doubt upon the reliability of one key aspect of her evidence. I address that issue later in this judgment (at paragraphs 117 – 123 below).

Ms. Cathy’s Evidence

66Ms. Cathy swore an affidavit and was cross-examined on it outside of court. The parties agree that her affidavit and the transcript of her cross-examination form part of the trial record.

67There are no indicia of dishonesty, such as embellishment, evasiveness, implausibility, or internal contradictions in her evidence. Mr. Kalsang’s lawyer did not seriously challenge her credibility on cross-examination or in closing submissions. Overall, I find her to be a credible witness. However, I approach her evidence with a degree of caution for the following reasons.

68First, Ms. Cathy misstated some facts during her cross-examination on her affidavit. For example, she incorrectly asserted that Ms. Natalie acquired a 49% interest and Master Lobsang acquired a 51% interest in the property on September 30, 2011. It is undisputed that they each acquired a 50% registered interest. I do not believe that Ms. Cathy intended to mislead the court, but her evidence on this point is wrong. This gives rise to concern about the reliability of her evidence.

69There are also admissibility issues with Ms. Cathy’s evidence. Her affidavit includes the sworn statement that, “All involved in the purchase, ownership or maintenance of the property understood that the property was held by Master Lobsang for the benefit of MBC to be used as a place of worship.” I have disregarded this evidence because it constitutes speculation on the part of the affiant about the state of mind of other persons.

70There are also conclusory statements in Ms. Cathy’s affidavit that I have disregarded because they purport to usurp the court’s fact-finding role. For example, she deposed that, “in August of 2011 the property was purchased in the names of Master Lobsang and Ms. Natalie for the full benefit of the MBC.” That is an issue for me to decide.

IDENTIFICATION OF ISSUES IN DISPUTE

71In its simplest terms, a trust arises whenever there is a split in legal and beneficial ownership of property – in other words, “whenever one person holds legal title to property and is legally obliged to manage the property for the benefit of another”: Gillese, Eileen E., The Law of Trusts, 3^rd^ ed. (Irwin Law, 2014), at p. 5.

72There are four requirements for establishing a valid express or implied trust:

(i) the parties to the trust must have capacity to enter into the legally binding arrangement;

(ii) the “three certainties” must be met, namely there must be certainty of intention to create a trust, certainty of subject-matter, and certainty of object(s);

(iii) the trust must be constituted, meaning the trustee must hold legal title to the trust property; and

(iv) the required formalities must be met, such as compliance with the Statute of Frauds (in the case of a transfer of land), and compliance with s. 13 of the Evidence Act (in a case where an estate is the responding party).

Rubner v. Bistricer, 2019 ONCA 733, at paras. 49; Tillsonburg Scout Association v. Scouts Canada, 2020 ONSC 747, at para. 22; Do v. Do, 2022 ONSC 6679, at para. 30.

73MBC and Mr. Kwan bear the onus of proving these four requirements on a balance of probabilities.

74There is no dispute that the parties all had capacity at the relevant times. The first requirement of a trust is therefore not at issue.

75The certainty of subject-matter of the alleged trust (i.e., the Mississauga property) is also not at issue.

76Mr. Kalsang argues that there was no certainty of intention and no certainty of object(s) when the trust claimed by MBC was allegedly created on September 30, 2011. These are disputed issues that I must decide.

77If I conclude that the two disputed certainties existed, then the trust will have been constituted when registered legal title to the property was transferred from Dr. Tôn Nữ to Master Lobsang and Ms. Natalie. The third requirement of a constituted trust is therefore not at issue.

78Mr. Kalsang disputes the fourth requirement of compliance with formalities. Specifically, he argues that the alleged trust does not comply with the formal requirements of the Statute of Frauds.

79A trust is an equitable concept, and equity does not require that a trust take any particular form. So far as the rules of equity are concerned, “a trust can be created orally, by writing, or be construed from conduct”: Waters, Donovan W.M., Mark R. Gillen, and Lionel D. Smith, Waters’ Law of Trusts in Canada, 5th ed. (Toronto: Thompson Reuters Canada, 2021), at p. 258. However, formal evidential requirements have been imposed by statute for certain types of trust. In Ontario, the Statute of Frauds stipulates that declarations of trusts of land must be created in writing and signed by the parties.

80In this case, MBC and Mr. Kwan base their claim on an alleged oral declaration of trust. There is no written document setting out the terms of the trust. Consequently, to succeed with their claim, they will need to persuade me that the requirements of the Statute of Frauds do not apply.

81Finally, in satisfying their onus to prove the two contested certainties and to prove an exception to the Statute of Frauds, MBC and Mr. Kwan must comply with s.13 of the Evidence Act, which states:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

82In summary, I need to address the following four issues in my Reasons for Judgment:

(i) Was there certainty of intention to settle a trust?

(ii) Was there certainty of objects of the trust?

(iii) Does the Statute of Frauds preclude the trust?

(iv) Have MBC and Mr. Kwan complied with the Evidence Act?

ANALYSIS

Was There Certainty of Intention to Create a Trust?

83Certainty of intention to create a trust refers to the state of mind of a property owner (the settlor) who transfers ownership of their property to another person with the express or implied condition that the recipient (the trustee) will hold and manage the property for the exclusive benefit of someone else (the beneficiary): Angus v. Port Hope (Municipality), 2017 ONCA 566, at para 98, leave to appeal ref’d [2017] SCCA No. 382; Tilsonburg Scout Association, at para. 29. The property can be transferred in exchange for consideration or it can be gifted, provided that the settlor intends that the trustee be bound by a requirement to hold and manage it for the benefit of another.

84Certainty of intention can be established by showing that, at the time of transfer of the property, the settlor used clear language expressing a condition that the recipient hold the property “in trust” for another. However, the settlor is not required to use explicit “trust” language or any other technical words. If the settlor’s words or actions (or both) convey an imperative requirement that the recipient of the property hold it in trust for the benefit of another, then certainty of intention is implied: Rubner, at paras. 52-53; Tilsonburg Scout Association, at para. 30.

85A settlor can have the requisite certainty of intention without fully understanding the legal concept of a trust. As the Court of Appeal for Ontario held in Rubner (at para. 55), “Equity focuses on substance – the settlor does not have to speak or think in the terms of a trust.” A contextual analysis of the facts must be undertaken. As the trial judge, I must consider what was said and done by the alleged settlor (Dr. Tôn Nữ) and the alleged trustees (Master Lobsang and Ms. Natalie) “during their time together against their own background and in their own circumstances”: Rubner, at para. 54.

86There are a couple of relevant contextual factors in this case. The first is that the individuals involved do not all speak the same language. Dr. Tôn Nữ, Ms. Natalie and Ms. Cathy speak Vietnamese as their first language. They also speak English, but with varying degrees of fluency. Master Lobsang spoke Tibetan, and very limited English. Mr. Kwan speaks Cantonese and Mandarin but virtually no English. Ms. Chan speaks either Cantonese or Mandarin (or both), as well as English. It became apparent during the trial that the communications between individuals involved in the relevant transactions were hampered by linguistic challenges. The parties’ actions (not just their words) are therefore of particular significance in assessing whether the requisite certainties of intention and object have been established. The Court of Appeal for Ontario has ruled that even conduct that occurs after the transfer of the property may be relevant evidence of intention: Rubner, at para. 65.

87The second important contextual factor is that all the individuals involved in this case are devout Buddhist practitioners. Dr. Tôn Nữ, Ms. Cathy and Mr. Kwan each testified to their understanding that Master Lobsang could not own property for his own personal benefit because that would be inconsistent with his monastic vows. In their affidavits, Mr. Kwan and Ms. Cathy both expressed their belief that a monk who wishes to own property, such as a home, must leave the Monastery. In contrast, Ms. Natalie testified to her understanding that monks can own property, including real property, provided that it is received as a gift.

88There is no expert evidence in the record about the tenets of Buddhism. I expressly make no finding as to whether Manjushri Buddhist monks are required to forego all attachment to material goods upon pain of being disrobed. However, I accept Dr. Tôn Nữ’s evidence that, when she became a Buddhist nun, she was required to take vows that included the relinquishment of property ownership. I also accept as credible her evidence, as well as Ms. Cathy’s and Mr. Kwan’s evidence, that they sincerely believed Master Lobsang could not have owned the Mississauga property for his personal benefit while remaining a monk. Regardless of whether their shared understanding of the tenets of Buddhism is correct, it informed their subjective understanding of the nature of the property interests acquired by Master Lobsang in September 2011 and August 2015. In their minds, he must have been a co-owner of the property in name only and must have held his 50% share of title for someone else’s benefit, because he could not hold title for his own personal benefit while remaining a monk.

89There is no evidence of the monastic vows taken by Master Lobsang or of his understanding of the tenets of Manjushri Buddhism. I note that, even if he did take vows to relinquish all possessions, nothing but his own conscience prevented him from breaking those vows. The vows, if they exist, have no legally binding effect. They could only apply within the Buddhist faith and would not preclude beneficial property ownership at law.

90In any event, the trial record contains evidence that Master Lobsang did, in fact, own property in Quebec and California. Moreover, the fact that he executed a Last Will and Testament is strong evidence that he believed he owned a beneficial interest in some property (although not specifically the property at issue in this trial). I find that Dr. Tôn Nữ, Ms. Cathy and Mr. Kwan were not aware of these facts.

91I do not need to resolve the debate about the requirements of Buddhist monastic vows. Dr. Tôn Nữ’s subjective understanding of Master Lobsang’s religious duties informed her understanding of the nature of the agreement she executed in August 2011. It is her state of mind that is relevant to my determination of whether MBC and Mr. Kwan have proven the requisite certainty of intention. As discussed in the following paragraphs, her words and actions at that time give rise to a reasonable inference, on a balance of probabilities, that she intended to create a trust when she transferred the property to Master Lobsang and Ms. Natalie. She did not intend for either of them to own their shares in the property for their own personal benefit. The following evidence supports this conclusion.

92Dr. Tôn Nữ explained that, when she began to look for someone to take over the property in 2010, she did not list it for sale on the open market because she wanted to find a buyer who would continue to use it for Buddhist worship and teachings. She testified that she made it known within the Buddhist community in the GTA that she was “looking to sell the property to another Buddhist, but on the condition that the new owner would preserve the property as a temple and place of worship.” Ms. Cathy corroborated this evidence with her testimony that Dr. Tôn Nữ “verbally announced, publicly to the community, that she wishes to pass on, to sell the property to whoever ought to continue the religious activities.”

93In the summer of 2011, Master Lobsang was visiting Toronto and staying in the home of Ms. Natalie. Ms. Natalie drove him to Ms. Cathy’s residence for the purpose of blessing Ms. Cathy’s home. It was during this blessing ceremony that Ms. Cathy met Master Lobsang and Ms. Natalie for the first time.

94Ms. Cathy testified that Master Lobsang told her he was looking to start a temple in the GTA so that Manjushri Buddhists would have a local place to worship and gather. Ms. Cathy was acquainted with Dr. Tôn Nữ because she had frequented the Medicine Buddha Temple on a few occasions. She was aware that Dr. Tôn Nữ was looking for someone to take over her property and use it for religious activities. She therefore reached out to Dr. Tôn Nữ on Master Lobsang’s behalf. She advised Dr. Tôn Nữ that a Manjushri Buddhist monk was looking for a property to use as a place of worship and gathering for his followers in the GTA.

95Ms. Cathy and Master Lobsang then visited the property and met with Dr. Tôn Nữ. According to both Ms. Cathy and Dr. Tôn Nữ, Ms. Natalie was not present at that first meeting. Ms. Cathy recalled Dr. Tôn Nữ expressing to her and Master Lobsang that she was only willing to transfer the property to someone who could be “entrusted to keep the promise of continuing the worshipping activity.”

96Dr. Tôn Nữ and Ms. Cathy both testified that Master Lobsang expressed a spiritual connection to a large statue of Guanyin (a Buddhist goddess) in the yard on the property. They both recalled that he was drawn to the statue and immediately indicated an interest in acquiring the property to use as a place of worship for Manjushri Buddhists in the GTA.

97Ms. Cathy testified that Dr. Tôn Nữ was planning to remove the Guanyin statue from the yard, but she persuaded Dr. Tôn Nữ to leave it because Master Lobsang wanted it. Ms. Cathy also assisted in the negotiations between Master Lobsang and Dr. Tôn Nữ over the purchase price for the property. She said the negotiations were not difficult because “the two of them had the same objective,” namely “to promote a place for Buddhist religious activity.” Ms. Cathy recalls that Dr. Tôn Nữ agreed to transfer the property at below market value on the express commitment that it would be used as a Buddhist temple.

98Dr. Tôn Nữ testified that Master Lobsang was keen to acquire the property for any price. She said she told him, “I wouldn’t sell to you, but I would like to transfer it to you so that you can continue propagating the worshipping of the Buddhism on my behalf.” She further testified that he told her, “You should not worry. I promise to continue the mandate of using this place to teach Buddhisms (sic).”

99Dr. Tôn Nữ testified that it was unnecessary to record Master Lobsang’s promise in writing because she trusted that, as a monk, he shared her fundamental Buddhist belief in karma. In other words, she believed that he would honour his commitment not to use the property for his own personal benefit because of his fear of negative karmic consequences if he broke his promise.

100Master Lobsang had no money and no income, so he could not pay for the property. Shortly after his first visit to the property, Ms. Natalie approached Ms. Cathy and offered to finance the transaction.

101Dr. Tôn Nữ testified that, when she subsequently met with Ms. Natalie, she reiterated that she did not want to “sell” the property, but would “transfer” it if Ms. Natalie agreed to take over the existing mortgage and pay back the money borrowed for the renovations, “plus has to continue the spirit of my house, that is, has a duty to continue to preach, to teach Buddhism.” During cross-examination on her affidavit, Dr. Tôn Nữ clarified that, to her mind, “selling” would entail “accepting a lump sum to get rid of the property, and whoever owned it, want to do whatever, it is no longer my business.” In contrast, she said she wanted to “transfer” title so that the property would be entrusted to someone who promised to use it as a Buddhist temple.

102Although Dr. Tôn Nữ adhered to the belief that Master Lobsang, as a Buddhist monk, could not own a beneficial interest in property, she did not question the fact that he would be registered as an owner on title to the Mississauga property. Both she and Ms. Cathy saw that as a sign of respect for his status as a Master monk. Dr. Tôn Nữ explained that she had done the same thing with Master Wang when she first purchased the property. She testified that she understood Ms. Natalie needed to be on title to the property as a co-owner because Master Lobsang, as a monk with no income, could not hold the mortgage alone.

103I accept all the above evidence as credible. To the extent that I have referenced statements attributed to Master Lobsang (paragraphs 94, 96 – 98), they are included not for the truth of their contents, but rather for narrative purposes and to help me discern Dr. Tôn Nữ’s intent upon executing the transaction.

104Ms. Natalie was not present during the initial meeting between Dr. Tôn Nữ and Master Lobsang, so she has no personal knowledge of what was said at that time.

105Ms. Natalie’s account of the subsequent meeting she had with Dr. Tôn Nữ and Master Lobsang (prior to the execution of the APS) is confusing. As noted earlier (at paragraph 40), she gave inconsistent testimony about what was said during that meeting. At times, she testified that she told Dr. Tôn Nữ she wanted to buy the house on the property as a private residence for Master Lobsang so that he would have a permanent place to live whenever he came to Toronto, rather than staying in her home and in the homes of his other followers. This testimony directly contradicts Dr. Tôn Nữ’s testimony about what they discussed prior to executing the APS. Dr. Tôn Nữ was not confronted with this aspect of Ms. Natalie’s evidence nor given an opportunity to comment on it during her cross-examination, which contravenes the rule in Browne v. Dunn (1894), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). If I accepted Ms. Natalie’s evidence on this point, the failure to comply with Browne v. Dunn would impact the weight to be accorded to it. However, I reject her evidence for the following reasons.

106First and foremost, Ms. Natalie directly contradicted herself at trial when she stated, during her examination-in-chief, that she told Dr. Tôn Nữ the reason she wanted to buy the property was so that Master Lobsang “has a place he can practice and preach and help other worshipper to learn about the religion.”

107Second, I find it dubious that Ms. Natalie would be able to recall details of her conversation with Dr. Tôn Nữ, given her inability to remember other facts. When she testified at trial, she could not remember even basic auto-biographical information, such as the year she was married, when she separated from her husband, how long they were married before they separated, or when her subsequent common law spousal relationship ended. She could not remember nor even estimate the number of times that she visited Master Lobsang in Longueil or California, or the number of times he came to Toronto and stayed in her home. During her examination-in-chief at trial, Mr. Bergman asked her who decided that she and Mr. Lobsang would each have a 50% interest in the property when the APS was executed in August 2011. She responded, “At that time, I don’t remember much.” Yet she purported to recall a conversation she had with Dr. Tôn Nữ in August 2011, during which she supposedly told Dr. Tôn Nữ that she wanted to buy the property for Master Lobsang to use as his principal residence. The selective character of her memory casts doubt upon the trustworthiness of her evidence.

108Another reason why I prefer Dr. Tôn Nữ’s evidence over Ms. Natalie’s evidence is that Dr. Tôn Nữ’s evidence is consistent with Ms. Cathy’s evidence. Ms. Cathy deposed that Dr. Tôn Nữ told her and Master Lobsang that she would only transfer the property on condition that it be used as a Buddhist temple. I conclude that the September 30, 2011 transaction would not have taken place had Ms. Natalie told Dr. Tôn Nữ that the property was going to be used as a private residence.

109Mr. Kalsang relies on a package of documents provided to Master Lobsang and Ms. Natalie by their solicitor, upon completion of the real estate transaction in October 2011. The package includes a document entitled Land Transfer Tax Statements. It identifies Master Lobsang and Ms. Natalie as the purchasers of the property, as tenants in common with equal 50% shares. It states, “The purchaser(s) will occupy the qualifying home as his/her/their principal residence on 2011/09/30.” This declaration appears to have been necessary for Master Lobsang to obtain provincial and municipal land transfer tax rebates available to first-time home buyers at the time. The document is unsigned. It is written in English, so Master Lobsang (who had very limited English language skills) would not have been able to read it. There is no evidence that anyone explained it to him or reviewed it with him. There is no evidence that Ms. Natalie reviewed or signed it at the time. Moreover, there is no reason to believe that Dr. Tôn Nữ was privy to the information contained in the document, because it was part of a solicitor-client privileged communication. In short, the document does nothing to support Mr. Kalsang’s argument that Dr. Tôn Nữ knew and agreed that the property would be used by Master Lobsang as a private residence. In the circumstances, the document does not even support an inference that Master Lobsang and Ms. Natalie intended the property to be used as Master Lobsang’s private residence.

110Based on the evidence that I accept, I find that Dr. Tôn Nữ clearly expressed to both Master Lobsang and Ms. Natalie that she was only agreeing to transfer the property to them because they promised it would be used by local Manjushri Buddhist practitioners, as a place of worship and religious teaching. There was never any discussion about the property being purchased to serve as Master Lobsang’s private residence.

111I conclude that Dr. Tôn Nữ’s words and actions establish the requisite certainty of intention to create a trust. I note that the evidence with respect to certainty of objects, discussed below, further supports my finding that there was certainty of intention.

Was There Certainty of Object(s) of the Trust?

112The general word “objects” is used in the jurisprudence because trusts may be created in favour of persons (human or incorporated) or, to a limited extent, in favour of a purpose that the settlor would like to see carried out to benefit the public. “Object” can refer to the beneficiary of a private trust or to the charitable purpose of a public trust, depending on the circumstances of the case.

113In this case, MBC and Mr. Kwan’s principal argument is that a private trust was created by Dr. Tôn Nữ for the benefit of MBC. In the context of a private trust, the certainty of object(s) requirement means that the beneficiary (or beneficiaries) of the trust must be sufficiently delineated by the settlor to allow for trust performance: Rubner at para.59. The whole concept of a trust assumes that some person (whether a human being or a corporation) has a beneficial interest and can ensure that the trustees properly discharge their duties. There must be enough certainty as to whether a person is a beneficiary in order for the trustees to know how to fulfill their fiduciary obligations and for the court to execute the trust, if need be: Waters’ Law of Trusts in Canada, 5th ed., at chapter 5.IV.

114Certainty of objects does not require that the beneficiaries of a trust be identified by name. It is sufficient if they are delineated in terms clear enough that the trust obligations can be performed properly: KPMG Inc. v. Bannerman, 2005 CanLII 14008 (ONSC), at para. 9; Tilsonburg Scout Association, at para. 33. For example, there are many cases in which the settlor refers to the intended beneficiaries of a trust by a class description, such as “my children”, “my friends”, or “the ratepayers of [a specified municipality]”: see, for example, White v. Gicas, 2014 ONCA 490, at para. 51. In such circumstances, certainty of objects is established if it is possible to say who is or is not in the class, and to list all the persons who make up the class: Angus, at para. 120. In other words, certainty of objects is established if the beneficiaries are ascertainable: Waters’ Law of Trusts in Canada, 5^th^ ed., at chapter 5.IV.

115This is not a case in which membership of a class of beneficiaries needs to be determined. The trust claim is that the corporate entity MBC is the sole beneficiary. But the principle of ascertainability of objects nevertheless applies.

116For the reasons set out below, I have concluded that MBC is clearly ascertainable as the intended object of the trust in this case. Some brief background information on the history of MBC provides useful context. Ms. Cathy is a Director of the corporation and gave the following uncontested evidence during her cross-examination. MBC was founded by Master Lobsang and incorporated in Ontario in 1996. MBC did not own a temple prior to 2011. It had rented a building in the GTA, which it tried to operate as a temple, but it had to close because an insufficient number of worshippers were attending. Prior to September 30, 2011, there was “no actual physical location for the centre,” but MBC was not dormant. It operated in the GTA by Master Lobsang periodically coming from the Manjushri Buddhist Centre in Quebec and preaching to his followers in people’s private residences. On occasions when MBC organized a larger worshipping event in the GTA, it would rent space in a Vietnamese temple to do so.

117In her affidavit, Dr. Tôn Nữ deposed that, the first time Master Lobsang visited the Mississauga property, he told her “that he had established the Majushri Buddhist Centre Inc. (“MBC”) in Longueil, Quebec,” and “had spent the last fifteen years looking for a suitable property to build an MBC chapter in the GTA.” She further deposed, “I agreed to sell the Property to Master Lobsang, subject to his commitment that he would hold the Property for the full benefit of MBC.” She also stated, “I transferred the Property to [Ms. Natalie] and Master Lobsang… subject to the commitment that the Property would be held for MBC to use as a place of worship.”

118Dr. Tôn Nữ was not cross-examined directly on these statements in her affidavit. However, the following exchange occurred during her cross-examination at trial:

Q. When was first time that you learned of the existence of a not-for-profit corporation called the Manjushri Buddhist Centre Inc.?

A. After Master Lobsang bought the temple and I also knew he that had another temple in Montreal.

Q. Is it correct that the first time you learned of the Manjushri Buddhist Centre Incorporated was after September 2011?

A. I am not sure about the name of the centre and when was that – but I learned that after I transferred it, it was still continuing to be a temple, but the name was changed like that.

Q. And the name was changed from which name to which new name?

A. The old name was Medicine Buddha Temple.

119Dr. Tôn Nữ was not given an opportunity to explain the apparent discrepancy between her earlier affidavit evidence and the above responses during her testimony at trial. Specifically, she was not shown the statements in her affidavit and asked how it is possible that she sold the Mississauga property subject to a commitment from the trustees to hold it for the benefit of MBC if she did not know that MBC existed at the time.

120Mr. Bergman raised this discrepancy during his closing submissions. He did not ask me to make any negative credibility findings against Dr. Tôn Nữ. Rather, he argued that Dr. Tôn Nữ must have been mistaken when she swore her affidavit. He urged the court to conclude that Master Lobsang and Dr. Tôn Nữ could not have made explicit references to MBC as the object of a trust in the summer of 2011 because Dr. Tôn Nữ did not know that MBC existed as a corporate entity until after the real estate transaction closed on September 30, 2011.

121It would have been helpful to me to hear Dr. Tôn Nữ’s explanation of the purported inconsistency in her evidence. While it is possible that she was mistaken when she swore her affidavit (as suggested by Mr. Bergman), it is equally possible that she misspoke when she was cross-examined. Another possibility, which I find to be most likely, is that she misunderstood the questions asked by Mr. Bergman at trial. She testified with the benefit of an interpreter, but it appears from the exchange reproduced at paragraph 118 above that she thought he was asking her when she first learned that the temple in Mississauga was renamed “Manjushri Buddhist Centre.” Mr. Bergman’s questions were clear, but her answers were not directly responsive to the questions asked. There is no reason to believe that she was being intentionally evasive. I believe that she misunderstood the questions.

122I note that Dr. Tôn Nữ appears to have confused corporate entities with the names of temples in her affidavit as well (see paragraph 117 above). She defined the acronym “MBC” in her affidavit as “the Manjushri Buddhist Centre Inc. in Longueil, Quebec.” She did so in reference to the temple that Master Lobsang founded in that province, not to a Quebec corporation. She referred to the “temple in Montreal” again when she answered the question during her cross-examination about when she first learned of the existence of a not-for-profit corporation called “Manjushri Buddhist Centre Inc.” (see paragraph 118 above).

123As I interpret her testimony at trial, she was conveying to the court that: (i) she knew Master Lobsang had a temple in the Montreal area called Manjushri Buddhist Centre and (ii) it was only after she sold him the Mississauga property that she found out he renamed the temple on that property Manjushri Buddhist Centre as well. Her testimony at trial therefore does not directly contradict her earlier evidence in her affidavit.

124Given Dr. Tôn Nữ’s tendency to conflate corporations and temples, I am unable to determine whether she was aware of the existence of MBC as a corporate entity when she was discussing the potential transfer of the Mississauga property to Master Lobsang and Ms. Natalie in the summer of 2011. MBC and Mr. Kwan have not established on a balancing of probabilities that MBC (the Corporation) was specifically named and identified as the beneficiary of the trust. But the law does not require that the object of a trust be named specifically by the settlor. The law requires that the object be ascertainable.

125For the reasons set out below, I find that MBC is readily ascertainable as the object of the trust. I make this finding based on the words spoken by the parties to the September 30, 2011 transaction, and based on their conduct both before and after the deal closed.

126Dr. Tôn Nữ and Ms. Cathy both deposed that Master Lobsang said he wanted the property to use as a temple for Manjushri Buddhists to gather and worship in the GTA, just as he had founded a Manjushri Buddhist Centre in Longueil. I accept this evidence as credible. It is admissible not only to prove that the statement was made, but also for the truth of the content of the statement under the principled exception to the hearsay exclusion rule.

127The twin criteria of necessity and threshold reliability are met: R. v. Khelawon, 2006 SCC 57. First, it is necessary to adduce Master Lobsang’s out-of-court statement through other witnesses because Master Lobsang is deceased. Second, although Master Lobsang’s statement was not made under oath or in other circumstances that would constitute procedural reliability, it has sufficient substantive reliability to fall within the principled exception to the hearsay exclusion rule. The substantive reliability of the evidence is established by the mutually corroborative characteristics of Dr. Tôn Nữ’s and Ms. Cathy’s independent recollections of Master Lobsang’s words, and by the evidence of the use that was made of the property after title was transferred on September 30, 2011. As discussed at paragraphs 138, 140 – 141 below, the property has consistently been used by MBC as a temple.

128Dr. Tôn Nữ testified that she made it clear to Master Lobsang and to Ms. Natalie that she was only willing to transfer the property to them because Master Lobsang committed to using it as a Manjushri Buddhist temple. I accept this evidence as credible. In addition to the words exchanged by Dr. Tôn Nữ, Master Lobsang, and Ms. Natalie, the conduct of Master Lobsang and Ms. Natalie both prior to and after the closing of the real estate transaction provides further evidence that MBC was the intended beneficiary of the trust property. As explained blow, this can be inferred from the fact that Master Lobsang took active (albeit misguided) steps to try to ensure that the corporation’s beneficial interest in the property was safeguarded. Specifically, he asked Ms. Chan, who was then the Secretary of MBC’s Board of Directors, to prepare papers for Ms. Natalie to sign immediately after the APS was executed. Those papers are the MBC corporate documents discussed earlier in this Judgment (at paragraphs 43 – 47).

129According to Ms. Natalie’s own evidence, she met with Ms. Chan, who she described as a “disciple” of Master Lobsang, to sign the Consent to Act as a Director of MBC and the Appointments of Officers of MBC on August 26, 2011, just days after she executed the APS. The MBC corporate documents show that Ms. Chan was a Director of MBC from 2007 to 2011. She resigned as Secretary of MBC at the moment when Ms. Natalie was appointed as Secretary; both of their signatures appear on the same corporate resolution dated August 26, 2011. Ms. Natalie testified that she signed the documents because Master Lobsang asked her to. I have already explained why I reject her testimony that she had no idea what she was signing. I find that she agreed to become a Director and Officer of MBC at Master Lobsang’s request.

130The change in Directors and Officers constitutes circumstantial evidence of Ms. Natalie’s and Master Lobsang’s understanding that MBC was the object of the trust to which the property would be subject. The individuals involved in these transactions did not have sophisticated legal knowledge. Ms. Cathy, who effectively brokered the deal between Master Lobsang and Dr. Tôn Nữ, testified to her subjective understanding that it was unnecessary to register MBC on the title to the property because Master Lobsang “as a Director, he can represent the corporation to be on the title of the property.”

131It is undisputed that the only reason Ms. Natalie was registered on title as a co-owner is because she was offering to hold the mortgage. Ms. Natalie acknowledges that she never held any beneficial interest in the property. I find, on a balance of probabilities, that Master Lobsang and members of the Board of Directors thought MBC’s beneficial interest in the property would be safeguarded if Ms. Natalie became a Director and Officer of the corporation before 50% title to the property was transferred to her. There is no other reason why she would have been appointed a Director at that time. She did not ask for the appointment. There is no evidence that she ever attended any meetings of the Board of Directors or was otherwise involved in the direction of MBC, apart from signing charitable receipts for donations received by MBC. I note that her eventual resignation from her position on the Board coincided with the subsequent disposition of her interest in the property in the summer of 2015. She had no reason to remain as a Director or Officer of MBC once she was no longer a trustee of the corporation’s property.

132I further find, on a balance of probabilities, that Master Lobsang and Ms. Natalie both understood that MBC would become the beneficial owner of the property when the real estate transaction closed on September 30, 2011. The object of the trust was clear enough to the trustees that they could perform their fiduciary obligations properly, which is sufficient to establish certainty of the object of the trust.

133Mr. Bergman argues that the Court does not have jurisdiction to come to the relief of a private trust and provide a clarified object when one has not been defined with certainty. He is correct that such jurisdiction only exists in the context of charitable purpose trusts, where the cy-près doctrine permits the court to define a charitable purpose that accords with public policy, when the settlor failed to do so: Waters’ Law of Trusts in Canada, 5th ed., p.710; Canada Trust Co. v. Ontario Human Rights Commission, 1990 CanLII 6849 (ON CA). However, that is not what MBC is asking me to do in this case. I am not clarifying the object of the trust. Rather, I am determining that MBC was ascertainable as the object with sufficient certainty.

134The ascertainability of MBC as the beneficiary of the trust is reinforced by evidence of what transpired after title to the property was transferred on September 30, 2011. Contrary to Mr. Kalsang’s and Ms. Natalie’s evidence that it served as Master Lobsang’s private residence, there is overwhelming evidence that it was used continuously and exclusively as a Buddhist temple by MBC.

135Ms. Natalie testified that she could not remember how many times Master Lobsang was present at the property between September 2011 and August 2015, but she asserted that it was “many times”. For reasons I articulated regarding Ms. Natalie’s lack of credibility, I reject her evidence on this point. I prefer and accept the evidence of Ms. Cathy, who stated that Master Lobsang visited on only a handful of occasions after 2011 and may not have visited at all after 2015. He stayed at the property during his short infrequent visits, but he did not live at the property. Rather, the evidence in the trial record demonstrates that he resided at the Manjushri Buddhist Centre in Longueil, Quebec, and also spent time at his temple in California, and at his training centre in India. There is no evidence that Master Lobsang ever used the Mississauga property as his residential address.

136The following evidence establishes the use of the property by MBC as a temple from September 30, 2011 onward. Over the years, Master Lobsang’s disciple monks from the Manjushri Buddhist Centre in Longueil regularly visited the GTA and resided at the property for varying periods of time. During their stays, they provided blessings, presided over worship services, and preached Buddhist teachings to followers who frequented the building. The property was referred to as the Majushri Buddhist Centre. Other monks also visited the centre and performed worship services. Photographs of these services were adduced as evidence at trial. The prayer hall in the building was expanded to accommodate more people as the temple’s congregation grew. A large parking lot was resurfaced to accommodate the Buddhist practitioners’ vehicles during group prayer sessions. Many people held keys to the building, including several monks and members of MBC’s Board of Directors. The address of the property was used by MBC and appears on its banking records and charitable tax receipts.

137The fact that the building’s interior configuration continued to have bedrooms and a kitchen in the basement is not evidence that it was a private residence. Those facilities were required for the visiting monks. The fact that the mothers of two monks lived there at different periods of time and provided caretaking services does not convert the temple to a private residence.

138As noted earlier in this judgment, MBC has paid the utility bills and the property taxes since September 30, 2011. MBC also invested substantial sums of money over the years to maintain and renovate the property so that it can better serve as a place of worship for Manjushri Buddhist practitioners. It would make no sense for a charitable corporation to incur such expenses if the property was not in use as its temple. MBC would not have the funds, in any event, to pay those bills unless it was receiving donations from worshippers who attend the temple.

139Even Mr. Kalsang implicitly acknowledged that the property is used by MBC as a Buddhist temple. At one point during his cross-examination, he agreed that Master Lobsang had given him and his brother the responsibility “to allow students of the MBC to continue to be able to worship at the Toronto temple” (emphasis added). The “Toronto temple” refers to the disputed property.

140Ms. Natalie, on the other hand, claimed not to know (or not to be able to remember) whether the property was used by MBC as a temple, despite having attended the property on multiple occasions when Master Lobsang visited, and also on a few occasions when he was not present. She confirmed that she worshipped at the property with other Buddhist practitioners and monks every time she attended. She signed charitable tax receipts for donations made to MBC by the temple’s congregants. In these circumstances, her professed ignorance of the fact that MBC was using the property as a temple is implausible and not credible.

141Further circumstantial evidence that Ms. Natalie knew MBC was the beneficial owner of the property was elicited during her examination in chief at trial. Mr. Bergman asked her whose permission she sought in the summer of 2015 to transfer her ownership share of the property to Master Lobsang. She responded that she asked “my Master and Alice”, that is, Ms. Chan. Ms. Chan is MBC’s accountant. She is a longstanding member of MBC’s Board of Directors, who resumed her position as Secretary of MBC after Ms. Natalie disposed of her interest in the property in 2015. The fact that Ms. Natalie felt it necessary to obtain Ms. Chan’s permission before transferring her interest in the property supports the inference that she was aware MBC was the beneficial owner of the property. If she genuinely believed she held her interest for the exclusive personal benefit of Master Lobsang, she would have had no reason to seek Ms. Chan’s permission.

142Mr. Bergman correctly stated during his closing submissions that certainty of object means there must be a person capable of saying they are the beneficiary and capable of enforcing the trust. I find that MBC is that “person” at law. There was always sufficient clarity and certainty of object for the trustees’ obligations to be performed, and those obligations were, in fact, performed for many years. Indeed, the only legal mechanism that is consistent with what actually happened in this case is that Master Lobsang and Ms. Natalie acquired title to the property in trust for the exclusive benefit of MBC.

143It is unnecessary for me to review the evidence of what transpired in August 2015 when Ms. Natalie transferred her 50% registered interest in the property to Master Lobsang (49%) and Mr. Kwan (1%) because she did not have the ability to transfer anything other than what she possessed, namely a 50% legal interest that was subject to a trust in favour of MBC.

Does the Statute of Frauds Preclude the Trust?

144Sections 1 and 2 of the Statute of Frauds stipulate that interests in land must be created “by a writing signed by the parties …or their agents,” and can only be assigned, granted or surrendered “by deed or note in writing signed by the party so assigning, granting or surrendering the same, or the party’s agent.” Section 9 of the statute provides that, with the exception of trusts arising by implication of law, “all declarations or creations of trusts … of any lands … shall be manifested and proved by a writing signed by a party who is by law enabled to declare such trust … or else they are void and of no effect.” Section 11 of the statute requires that all grants and assignments of trusts of land be effected in writing.

145Mr. Kalsang relies on this Court’s interpretation of these statutory provisions in the decisions of Do and Soleimani v. Karimi, 2023 ONSC 3890. In Do (at para. 36), the Court found that a trust claim on land could not succeed due to the absence of any written records establishing the trust, which breached the writing requirements found in the Statute of Frauds. Similarly, in Soleimani, the Divisional Court upheld a motion judge’s decision to reject a trust land claim based on an oral agreement, finding that such an agreement is inconsistent with the writing requirements of the Statute of Frauds.

146In response to these submissions, MBC argues that its beneficial interest in the property is not defeated by the provisions of the Statute of Frauds. It relies on a common law principle that does not appear to have been raised in either Do or Soleimani, and that was not considered by the Justices who rejected the oral trust claims in those decisions.

147The principle in question is that the Statute of Frauds cannot itself be used as an instrument of fraud. This principle is explained in Waters’ Law of Trusts in Canada, 5^th^ Ed., as follows (in chapter 7.III): “A person who undertakes trust duties cannot thumb his or her nose at the trust beneficiary by means of pleading the Statute as a defence – and thus retain the property for him or herself. Such a practice constitutes fraud in equity.”

148This exception to the application of the Statute of Frauds was recognized by the Supreme Court of Canada in Pahara v. Pahara, 1945 CanLII 23 (SCC), [1945] S.C.J. No.46, [1946] S.C.R. 89, at para. 30:

The appellants allege non-compliance with section 7 of the Statute of Frauds. It is found that the deceased wife held the property in trust and it is not with her and therefore not with her executors to rely upon the Statute of Frauds to deny to the cestui que trust [the beneficiary] the benefit of the trust. As stated by Lindley L.J. in Rochefoucauld v. Boustead, [1897] 1 Ch.D. 196 (C.A.), at p. 206: “It is further established by a series of cases, the propriety of which cannot now be questioned, that the Statute of Frauds does not prevent the proof of a fraud. It is a fraud on the part of a person to whom land is conveyed as a trustee and who knows it was so conveyed to deny the trust and claim the land himself.”

149In Rochefouchauld, the English Court of Appeal went on to state:

Consequently, notwithstanding the statute, it is competent for a person claiming land conveyed to another to prove by parole evidence that it was so conveyed upon trust for the claimant, and that the grantee, knowing the facts, is denying the trust and relying upon the form of conveyance and the statute, in order to keep the land himself.

150The decision of the Supreme Court of Canada in Pahara is binding on this Court. The decisions in Do and Soleimani are distinguishable because the Rochefouchauld exception to the application of the Statute of Frauds was not considered in those cases.

151For the principle in Rochefouchauld to apply to save an alleged oral trust, it must be established that the transferee knew at the time of the conveyance of land that he or she was obligated to hold it as a trustee for another. In this case, both Master Lobsang and Ms. Natalie knew, at the time of the conveyance of the property on September 30, 2011, that they were obligated to hold title for the benefit of MBC. Equity would not permit either Ms. Natalie or Master Lobsang to invoke the Statute of Frauds in order to resile from the oral trust agreement under which they acquired their interests and keep the property for themselves. It therefore does not lie with Master Lobsang’s Estate to use the Statute of Frauds as a defence to MBC’s claim to beneficial ownership of the property.

Have MBC and Mr. Kwan Complied with the Evidence Act?

152Section 13 of the Evidence Act stipulates that, in an action against the Executor of an Estate, the opposite party “shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.”

153In this case, Mr. Kwan and MBC are the parties opposite the estate of Master Lobsang. Ms. Cathy’s evidence, as a current Director of the corporation, is effectively the evidence of MBC. The Evidence Act therefore requires corroboration of her evidence and of Mr. Kwan’s evidence before judgment can be granted in their favour: Gomes v. Da Silva, 2024 ONCA 792, at para. 18.

154The Supreme Court of Canada ruled, in McDonald v. McDonald (1902), 1903 CanLII 66 (SCC), 33 S.C.R. 145, at p.152,

The statute does not necessarily require another witness who swears to the same thing. Circumstantial evidence and fair inferences of fact arising from other facts proved, that render it improbable that the fact sworn to be not true and reasonably tend to give certainty to the contention which it supports and are consistent with the truth of the fact deposed to, are, in law, corroborative evidence.

155Both Ms. Cathy’s evidence and Mr. Kwan’s evidence about the events that occurred prior to Master Lobsang’s death are corroborated by circumstantial evidence in this case, including documentary evidence (e.g., corporate documents, banking records, photographs). Their evidence is also corroborated by the direct evidence of Dr. Tôn Nữ, who has no affiliation with MBC. Section 13 of the Evidence Act has therefore been satisfied.

CONCLUSIONS

156For the reasons articulated above, I declare that:

(i) Manjushri Buddhist Centre Inc. is the sole beneficial owner of the property located at 1926 Burnhamthorpe Road East, Mississauga, Ontario; and

(ii) The estate of Lobsang Jamyang and Mr. Wai-Keung Kwan hold their respective registered legal interests in the property in trust for the sole benefit of the Manjushri Buddhist Centre Inc.

157If MBC and Mr. Kwan seek ancillary Court Orders, such as a vesting Order, an Order for transfer of registered title to a new trustee, or other remedies, they may request the Orders in writing, with proof of Mr. Kalsang’s (the estate’s) consent to form and content of the Orders. If consent is not forthcoming, they may contact the court to schedule a further appearance before me. I shall remain seized of any remedial issues that may arise.

COSTS

158As the successful parties in this trial, MBC and Mr. Kwan are presumptively entitled to their costs. I will provide the parties with reasonable time to negotiate and resolve the issue of costs.

159If costs cannot be settled, the parties may make written submissions and I will decide the issue. MBC and Mr. Kwan shall have until February 7, 2025 to serve and file their written costs submissions. Mr. Kalsang (the estate) shall have until February 21, 2025 to deliver and file responding written costs submissions. There will be no reply submissions unless requested by me.

160Written submissions shall not exceed 3 pages in length, not including a Bill of Costs, any pertinent Offers to Settle, and any authorities relied upon by the parties.

161Written costs submissions and any supporting materials must be uploaded to Case Centre after they are served and filed.

162If no costs submissions are filed by February 7, 2025, I will assume that the issue is resolved and I will make no order as to costs.

Justice C. Petersen

Released: January 15, 2025

CITATION: Wai-Keung Kwan v. Kalsang, 2025 ONSC 124

COURT FILE NO.: CV-21-3525

and CV-22-1427

DATE: 20250115

ONTARIO

SUPERIOR COURT OF JUSTICE