D.H. Anderson Investments Inc. v. Castanares, 2025 ONSC 3368

Court File No.: CV-23-00000085-0000
Date of Judgment: 2025-06-06
Heard: 2025-06-04
Ontario Superior Court of Justice

Between:
D.H. Anderson Investments Inc., Plaintiff
– and –
Wilma Castanares, Defendant

Appearances:
Dan Rosman & Geraldine Acosta, for the Plaintiff
Mathew H. Hilbing, for the Defendant

Judge: J.R. McCarthy

Reasons on Motion

[1] The Plaintiff moves for two distinct types of relief:
a) an interim and permanent injunction removing the Defendant from the Plaintiff’s property at Suite 3402, 15 Viking Lane, Toronto (“the property”); and
b) an order striking portions of the statement and defence of counterclaim.

[2] After receiving submissions from counsel, the court determined that it was just and expedient that the injunctive relief be determined first, with the “pleadings” aspect of the motion to follow at the next return date.

[3] In these reasons, I refer to D.H. Anderson Investments Inc. and David Anderson collectively as “the Plaintiff” since the Plaintiff corporation is owned and controlled by the Defendant by counterclaim David Anderson.

[4] The Plaintiff purchased the property for cash on August 26, 2021. The Defendant made no financial contribution to the purchase of the property. Following the purchase, the Plaintiff allowed the Defendant to reside in the property rent-free. The Defendant and the Plaintiff Anderson were in a romantic relationship. The Plaintiff has remained the legally registered owner of the property since its purchase.

[5] In approximately June 2022, the Plaintiff requested that the Defendant vacate the property. She refused, prompting the Plaintiff to issue the present claim. The Defendant responded with a statement of defence and counterclaim. Among other things, the Defendant claims that she is the beneficial owner of the property as either the recipient of a gift or as the beneficiary of a constructive trust.

[6] By her own admission, the Defendant is not a tenant under the Residential Tenancies Act (“RSA”).

[7] The Plaintiff and the Defendant were never married and never resided together as common law spouses.

Injunctive Relief

[8] The sought after injunction is granted for the following reasons:

[9] The Plaintiff has satisfied the three-prong test for injunctive relief from the Supreme Court of Canada’s decision in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (“the RJR test”):
a) the moving party must have a strong prima facie case and a serious claim to be tried;
b) the moving party must face irreparable harm if the relief is not granted;
c) the balance of convenience must favour the moving party.

[10] There is no question that the Plaintiff has a strong prima facie case. The Defendant argues that a combination of oral agreements, spoken promises, a smattering of emails, scribblings, documents and an unexecuted “condo agreement” create a triable issue in respect of whether the Plaintiff made an outright gift of the property to the Defendant.

[11] This is not a summary judgment motion. The question under the applicable test is not whether there is a triable issue, but rather whether on the material before the court there is a strong likelihood that the Plaintiff will succeed at trial.

[12] I find that there is.

[13] There is no written, mutually executed agreement transferring or creating any interest in the property in favour of the Defendant. There is no gift deed, no trust agreement, no property transfer, or similar document.

[14] The Statute of Frauds s. 1(1) requires proof of a written agreement to establish an interest in real property. And while there are exceptions to this bar in a host of case law, the presumption created by the Statute of Frauds itself creates a strong prima facie case that the Plaintiff is the sole owner of the property and entitled to enforce rights of ownership. The documents here, taken together, do not definitively establish the existence of an agreement to convey property.

[15] The “condo agreement” is highly conditional and even if enforceable, would not be so until the conditions were satisfied. Not least among the operative conditions is that it would not take effect until Mr. Anderson was deceased. He remains very much alive. Moreover, there is no evidence that the Defendant has paid any rent as contemplated in the condo agreement. Finally, there is nothing in the condo agreement which would preclude the Plaintiff from disposing, selling, or encumbering his property during his lifetime.

[16] The Plaintiff’s position that the Defendant was allowed to reside at the property at his discretion (and undoubtedly as his girlfriend) is contradicted by nothing but the Defendant’s assertion that the Plaintiff gifted the property to her. On the record before me, the Defendant cannot make out the test for a gift which was set out by ONCA in Abdollahpour v. Banifatemi, 2015 ONCA 834:
i) an intention on the part of the donor to make a gift without consideration or expectation of remuneration;
ii) an acceptance of the gift by the donee; and
iii) a sufficient act of delivery or transfer of property to complete the transaction.
Moreover, a promise to make a gift must be clear and unambiguous: see Grasso v. Bhatt, 2019 ONSC 746, para 158.

[17] The Plaintiff’s evidence is that he had no intention to make a gift. This is supported by the circumstances and by his actions. If he had intended to make a gift of the property outright, it would have been easy enough to do. He had a solicitor. He could have executed a transfer or gift deed. He could have arranged for a share transfer. He never even executed the condo agreement, which was conditional upon many things not the least of which was his own demise. Objectively, the condo agreement might be seen as an outline of a plan, a proposal, even a grand design with an intention to benefit in the future. But it was not a gift.

[18] The scribbling on the note of June 4, 2021 appears to say “If I die, you get the apt” but that does not amount to a gift. It is partly illegible. It is not a legal document. It is conditional upon Anderson dying. Indeed, the Plaintiff’s email from July 16, 2019, makes it clear that the Plaintiff was disabusing the Defendant of the notion that he was prepared to buy her “a place”. His reference to “we” in an email exchange about the purchase of the property is open to some interpretation but it does not serve to establish a gift. And the email exchange whereby the Plaintiff states “Yes I did” stands without any real context and is certainly not confirmatory of a statement or question like, “Did you gift the condo to me?” It is not clear what the “Yes I did” refers to since it goes on to talk about a fishing trip and Anderson’s emotional state. It is not at all clear that he is referring to the June 3, 2021 note. It is highly ambiguous.

[19] While the Defendant’s position is that she accepted the gift, there is no indication that she fulfilled the condition of paying rent in the condo agreement which should have accompanied and followed upon any acceptance.

[20] Lastly, there is no sufficient act of delivery to complete the transaction. Moving in to live rent free at an accommodation provided by a romantic partner hardly adds up to an “act of delivery”. Again, there was no transfer, conveyance, share transfer, and no placing of the Defendant’s name on title to the property. Nor was there ever any attempt to do these things.

[21] There is nothing to establish an act of delivery save and except for the Defendant’s occupation of the property on a rent-free basis. This is insufficient.

Constructive Trust and Alternative Claims

[22] In the alternative, the Defendant asserts a claim for constructive trust over the property. However, this does not assist her on the present motion. There is little to no documented evidence that the Defendant contributed anything of value to the property or improved it in any way. Regardless of whether the constructive trust claim has any merit, it is an equitable remedy which would not affect the Plaintiff’s legal right to exercise possession of the property as legal owner. To the extent that a claim for constructive trust is made out, the Defendant’s remedy might be a declared interest of some share, a sale order, or a damages award. Moreover, constructive trust, spousal support and other aspects of the counterclaim can be argued in the parallel family court proceeding. These issues are quite distinct from the relief sought in this motion which is right of possession.

Application of the RJR Test

[23] The second prong of the RJR test is equally satisfied. When there is a case of trespass, as there is here, there is unjustified infringement on property rights which are sacrosanct. For the court to opt for the substitution of damages in the place of injunctive relief in favour of the legal owner would amount to what this court termed “expropriation without legislative sanction”: see 2100 Bridletowne Inc. v. Ding, 2021 ONSC 2119, para 37. In my view, the denial of the injunctive relief to the Plaintiff would result in irreparable harm to the rightful owner who would be unable to access, rent, renovate, finance, resell or encumber the property until at least trial. This is highly inequitable and irreparably harmful to a rightful property owner. Despite her assertions, the Defendant cannot establish irreparable harm. She is employed and is in receipt of child support. Paying rent is not an onerous or unique burden. There is no evidence that the property is so unique that she could not find alternate living arrangements.

[24] Finally, the balance of convenience favours the Plaintiff. He continues to be legally responsible for condo fees and taxes but does not receive any rent. The Defendant has failed to provide evidence of her actual income or assets (pay stubs, income tax returns, employment history, financial statement) or furnish details of her attempts to seek other accommodation or the costs associated with doing so. No doubt she will be inconvenienced in being forced to vacate the property but that does not tilt the balance of convenience in her favour. The Defendant’s claims for constructive trust, spousal support and other counterclaims can be argued in a family court proceeding. To the extent that her constructive trust counterclaim proceeds and is successful, she can be adequately compensated with damages.

Disposition

[25] For the foregoing reasons, the first part of the Plaintiff’s motion is allowed. There shall be an order to go in accordance with the relief sought at paragraphs 1(a), (b) and (c) of the notice of motion dated January 22, 2025, with the added term that the operation of the order is suspended until July 31, 2025 to allow the Defendant an opportunity to find suitable accommodation and to vacate the property in an orderly fashion.

[26] The balance of the motion, including submissions on costs of this aspect of it, is adjourned to return before me on Friday, June 13, 2025 at 9am via Zoom with the court to arrange details.

[27] There shall be an order to go in accordance with the foregoing.

J.R. McCarthy
Released: June 6, 2025