Reasons for Decision

Court File No.: 114/16
Date: 2025-06-27
Ontario Superior Court of Justice

Between:
Texford St. Bernard, Plaintiff
and
June Andrews, Defendant

Appearances:
Darrell Paul, for the Plaintiff
Scott McMahon, for the Defendant

Justice: S. J. Woodley

Overview

[1] The within proceeding began by Statement of Claim issued on September 21, 2016, which originally sought, inter alia, a declaration that the plaintiff Texford St. Bernard (“Texford”) is the beneficial owner of certain real property located at 179 Bullis Road, Brighton, Ontario (“179 Bullis Road”), currently registered in the name of the defendant June Andrews (“June”).

[2] By the Statement of Claim, Texford sought a direction that title to 179 Bullis Road be transferred to Texford’s name in accordance with his beneficial interest.

[3] At the outset of trial on January 16, 2025, counsel for Texford advised that Texford was not pursuing the relief sought at paragraphs 1(a), (b), (c), (d), and (g) of the Statement of Claim, and his claim was limited to the relief sought at paragraphs 1(e) and (f) as follows:

a) In the alternative, a declaration that June has been unjustly enriched by improvements made to 179 Bullis Road by the plaintiff, and a further declaration that the plaintiff is entitled to compensation for that enrichment on a quantum meruit basis; and

b) An order directing an accounting between the parties with respect to the respective contributions to the acquisition, improvement, and maintenance of 179 Bullis Road.

[4] At the close of evidence, counsel for Texford advised that the plaintiff’s claim was limited to a repayment of the funds allegedly paid by Texford which remain owing to him for certain renovations/upgrades to the garage for the period 2008 to 2016, including a “contractor’s profit margin of 15%”, for a total claim of $50,806.41, plus interest and costs. Counsel for Texford also requested that the Court impose a “further award of $25,000 in the Court’s discretion” for a total claim of $75,000.00, plus interest and costs.

[5] Counsel for June submitted that Texford’s claim for repayment of invoices was limited by section 4 of the Limitations Act, 2002, SO 2002, c 24, Sch B, to a two-year period preceding the issuance of the Statement of Claim. In the circumstances, only those invoices dated September 21, 2014, and following could be recovered, if the Court found that such invoices remained unpaid, plus interest and costs.

Issues

[6] Despite any claims made in the Statement of Claim, the issues at trial are limited to the following:

a) What is the limitation period applicable to Texford’s claim?

b) What amount, if any, is Texford owed from June for those invoices rendered relating to 179 Bullis Road?

c) Is Texford entitled to receive interest or costs on any amounts owed?

Facts

The Parties

[7] The plaintiff, Texford, is the former common law spouse of Connie Andrews (“Connie”). Connie is the daughter of the defendant June and her late husband John Andrews (“John”).

[8] Texford and Connie lived together from 2001 to 2013 at property and premises owned by June and municipally known as 179 Bullis Road.

[9] Following Texford and Connie’s separation in 2013, family law proceedings were commenced between Texford and Connie that did not include any claim for 179 Bullis Road, as this property was owned by June.

[10] Texford commenced the within claim in 2016, claiming unjust enrichment and a beneficial interest in 179 Bullis Road.

The Property

[11] The property at the center of the dispute, 179 Bullis Road, was purchased by June and John on December 1, 1999, for $35,000.

[12] At that time, June and John owned several properties in the area. John also owned and operated a successful septic business known as Quinte Septic. John utilized several of his properties for his business.

[13] At the date of the purchase of 179 Bullis Road, the property was vacant land. June and John borrowed against their own home located at 1086 Whites Road, to build a 6-bedroom residential dwelling on the property.

[14] When the home was completed, in or about 2001, Texford, Connie, and their four children (together with two foster children) resided at the home and paid rent to June for their occupation of the premises.

[15] Texford declared the rental payments at line 6110 of his income tax returns from 2001 onwards. The initial rental payment was $850.00 which was slowly increased over time to $941.00.

[16] June declared receipt of the rental income on her T776 Statement of Real Estate Rentals on her income tax returns from 2001 onwards.

[17] June testified that this arrangement was in keeping with the even-handed manner that she and John treated all three of their adult children. June and John owned numerous properties in the area which they rented to various of their children at different times in their lives.

[18] Although no longer relevant to the issues to be determined, Texford’s original claim was that he is the person who initiated contact with the vendors of 179 Bullis Road and arranged for the purchase. Texford testified that he had $40,000 saved in an RRSP that he intended to use for the purchase but that June and John paid for the purchase instead.

[19] Texford testified that he had grown up in foster care and when he “aged out” of the system he began working for the foster care program. Texford testified that he had saved his money from a young age which he deposited to an RRSP. Texford testified that he was the person who noticed the for-sale sign on the property and was the person who initiated the purchase of the property. Texford stated that he intended to use the proceeds from his RRSP to purchase the property but instead June and John ended up purchasing the vacant land and he (Texford) funded the construction using his own personal funds from his RRSP.

[20] Texford claimed that June engaged his services to construct the house and garage at 179 Bullis Road, that he acted as the general contractor and (at times) a labourer, that he used the funds from his RRSP to fund the build, that he was owed money for payments made to sub-contractors, for acting as the site contractor, and for his labour relating to the building of the home.

[21] June testified that the property was owned by a former neighbour who severed a lot off their property. Following severance, June and John approached the neighbour, made an agreement, and purchased the property for $35,000.

[22] June testified that she and John paid for the property and the construction of the six-bedroom home by placing a mortgage on their own personal residence. June testified that Texford and Connie did not have sufficient funds to purchase the property or to build the home. June denied that Texford had paid amounts from his personal funds towards the construction of the home and/or garage. June further denied that Texford had the knowledge or ability to assist with the construction of the home.

[23] June’s daughter Connie testified that Texford had minimal income; did not own an RRSP valued at $40,000; and had no ability to purchase the property or to fund the build. Connie testified that she and Texford had so little funds that they required her parents to co-sign a loan for a vehicle.

[24] Texford’s income tax returns for the years in question were introduced as exhibits during the trial and put to Texford during cross-examination. The returns evidence that Texford’s income during the period in question was as follows: 2000: $1,962; 2001: $10,017; 2002: $9,123; 2003: $467; 2004: $3,351; 2005: $5,736 and 2006: $14,573.

[25] Although Texford’s income tax returns indicate small deductions for RRSP contributions for 2000, 2001, and 2002, there was no RRSP income withdrawn or declared until 2006 when Texford withdrew $10,143 from his RRSP (used to acquire Quinte Septic from John Andrews in 2007).

[26] Further, after Texford acquired Quinte Septic in 2007 from John, although his gross income vastly improved his net income remained low: 2007: $7,460; 2008: $8,223; 2009: $8,892.00; 2010: $7,664; 2011: $8,088; 2012: 28,769; 2013: (Separated) $17,157; and 2014: $12,284.

[27] The independent documentary evidence conflicts with Texford’s testimony that he withdrew $40,000 from his RRSP in or about 2000 to fund the build or that he had sufficient funds available to fund the build of the garage in 2008. These facts, coupled with the testimony of Connie and June to the contrary, leads me to disbelieve Texford’s evidence that he withdrew $40,000 in RRSP funds to pay for the construction of the home and/or had sufficient funds to pay for the construction of the garage.

[28] With respect to the construction of the home and garage, June testified that some of the construction work was done by her husband John. Most of it was done by third party contractors as follows:

a) The framing was done by Sandy McIsaac.
b) The roofing was done by Lovel Lord.
c) The electrical was done by A1 Electrical.
d) The plumbing was done by Reid’s Plumbing and Heating.
e) The drywall was done by Robert Deline.
f) The siding was done by Draaistra Construction.
g) The interior carpentry was done by June’s relatives, Mike Sommerville and Stoney Hamilton.
h) John Andrews did the site preparation, excavation, and septic installation (as this was his trade).

[29] June testified that none of the construction work for the home was done by Texford nor was he engaged as a “contractor”. Further, most, if not all the trades involved were skilled trades who were connected to herself, her husband (who owned Quinte Septic), her son (Johnny Andrews), her brother (Stoney Hamilton), her brother-in-law (Mike Sommerville), her nephew, or another relative or friend in the area. Connie’s testimony supported June’s evidence in this regard.

[30] With respect to the building of the garage on the property in 2008, June testified that she and her husband funded the build by taking out a mortgage against 179 Bullis Road. June testified that they obtained a mortgage of $89,500, even though the construction costs were somewhat less, approximately $60,000. The mortgage was life insured and was paid off when June’s husband died in 2012. The mortgage was entered as an exhibit at trial.

[31] June testified that the garage was built by her relatives, Mike Sommerville and Stoney Hamilton. June’s son, Johnny Andrews did the wiring and the electrical work. A local plumber Jim Bryant oversaw the plumbing installation that was completed by Johnny Andrews.

[32] Again, both June and Connie denied that Texford provided any meaningful construction work related to the building of the garage and did not pay any of the invoices from his personal funds. As for Texford’s claim that he paid for the various invoices because his name was on certain of the invoices rendered by the third parties, June testified that Texford’s involvement, if any, was to deliver the money given to him by her and her husband to remit to the various suppliers.

[33] During her testimony June presented cancelled cheques for nearly the full amount of money that Texford claims that he had paid. Amongst the cancelled cheques were cheques written directly to Texford or his business for large amounts of money. June testified that but for the passage of time, and the fact that numerous invoices were removed from her records after Texford and Connie separated, she could have produced proof of all payments.

[34] With respect to the bulk of Texford’s testimony relating to the work and services that he provided in the building of the home and/or garage, and the payment of any invoices relating to the building of the home and/or garage, his evidence is not supported by any independent corroborative evidence, or by common sense.

[35] Firstly, June and John and their extended families were all involved in the building trade. They had experience, knowledge, and connections. Texford had none of these attributes. It is nonsensical to accept Texford’s evidence that a family poised as they were in the trades to arbitrarily appoint Texford, someone with no knowledge, experience, or training, to oversee the build of a 6-bedroom home and/or a 3-bay garage.

[36] Secondly, contrary to Texford’s testimony, all documentary evidence confirms and buttresses June’s evidence that: she and her husband John funded all aspects of the build; Texford did not receive any RRSP payout until 2006 and this was limited to $10,143; and Texford did not earn or possess sufficient income or capital to make any of the alleged payments for the construction of the home and/or garage. This is especially true considering that Texford and Connie (whose income was also limited) had four children to support in addition to themselves.

[37] With respect to June’s testimony, throughout her testimony June remained a steady, honest, and generous (former) mother-in-law who did not seek to unfairly or unnecessarily criticize Texford. June’s evidence was supported by independent corroborative evidence and testimony that was logical, straight forward, and sensible.

[38] Additionally, although not forming the subject of any claim before the court, the evidence presented at trial overwhelmingly established that June and John were generous in their dealings with Texford and did not seek to take advantage of him and provided ongoing financial support for him.

[39] The following are a few examples of generosity and support shown to Texford by June and John:

a) In 1999, June and John purchased vacant land and built a 6-bedroom home that they rented out to Texford and Connie at below market rental rates from 2001 to 2013;
b) John taught Texford his trade, being septic installation, and allowed Texford to acquire his business (Quinte Septic Tank) for a very reasonable amount in 2007 which greatly improved Texford’s ability to support himself and his family and is the source of Texford’s livelihood to this date;
c) June allowed Texford to dump 250 tonnes of septic waste per year free of charge on government approved and licensed fields purchased by June and John while John was running the business;
d) Following John’s death, and on October 26, 2012, Texford purchased a property municipally known as 14186 Little Lake Road for $200,000, which he registered in his sole name. June obtained a mortgage against 179 Bullis Road and paid the sum of $72,361.01 to Texford’s lawyer so that he could purchase the property. Texford paid the balance by a $130,000 mortgage registered against his new property. Despite Texford’s separation from Connie, June has never requested or sought repayment of the $72,361.01 paid to Texford nor has she required him to service the mortgage obtained to generate the funds.

[40] Texford claimed during his testimony that the money paid by June for the purchase of 14186 Little Lake Road was due to him for the contributions made to the home at 179 Bullis Road.

[41] June testified that she obtained the funds for Texford because he required and requested the funds to purchase the property. Further, despite Texford’s separation from Connie she (June) has never requested or sought repayment.

[42] Texford continues to own the property which is now his permanent residence.

The Law and Analysis

Limitations Act, 2002

[43] Texford’s claim as against June is governed by the provisions of the Limitations Act, 2002, SO 2002, c 24, Sch B, which provides for a two-year limitation period. Pursuant to section 4, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[44] Subsection 5(1) of the Act defines the date on which the claim was discovered as being:

a) the day on which the person with the claim first knew,
i) that the injury, loss or damage had occurred,
ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
iii) that the act or omission was that of the person against whom the claim is made, and
iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[45] Texford argues that the limitation period applicable to the invoices relating to the garage is not restricted to the two-year period preceding the issuance of the claim, but instead is tolled to include all invoices relating to the period 2008–2016, pursuant to s. 5(1) of the Act, based on “work in progress”.

[46] Texford argues that he was required to abandon his work on the house and the garage and loft apartment due to a restraining order, and that the work remains “work in progress” and as such all claims relating to the construction for the period 2008–2016 are included. In support of this position, Texford submits an Occupancy and Final Inspection Guide from Kenora which is intended to answer the question “When is Construction Really Complete”.

[47] June argues that Texford’s claim for repayment of invoices for the period 2008 to 2016, is subject to a two-year limitation period from the date the invoices were rendered/delivered plus a further reasonable time period to determine whether the invoices would be paid. The defendant relies upon the decision of the Court of Appeal in Hugh Munro Construction Ltd. v. Moschuk, 2012 ONCA 109, in support of their argument.

[48] Having reviewed the applicable case law, I accept the defendant’s argument. As noted by the Court of Appeal in Hugh Munro Construction Ltd, where a contractor launched its action more than two years after a reasonably timed invoice would have been sent and payment made or refused, the action was barred by the passage of the two-year limitation period. See also G. J. White Construction Ltd. v. Palermo (1999), 7 C.L.R. (3d) 13 (Ont. S.C.), which held that the cause of action arose from the time after two events took place, namely, the expiration of a reasonable period of time for the plaintiff to deliver an invoice to the defendant, and the expiration of a reasonable time for the defendant to pay that invoice. The reasoning of G.J. White Construction has also been followed in Delmar Construction Inc. v. Toronto (City), [2008] O.J. No. 1623 (Ont. S.C.), and East-West Disposal Service Ltd. v. Jerudan Developments Ltd., [2003] O.J. No. 895 (Ont. S.C.).

[49] Applying this approach and taking into consideration the invoices filed by the plaintiff forming the basis for his claim for repayment, and the date of issuance of the Statement of Claim (September 21, 2016), the plaintiff would be expected to seek repayment of any invoice received within 30 days of receipt of the invoice and payment would have been due within 30 days following delivery.

[50] Under any reasonable view, any invoice dated prior to July 21, 2014 (being the two-year limitation plus 60 days) would have expired before the Statement of Claim was issued on September 21, 2014.

[51] There are very few invoices which qualify within the two-year limitation period and are limited to invoices 201–204, 218, and 237, which total $1,700.03. If I were to extend the “reasonable time period” to June 1, 2014, there would be two further invoices that could be included (225 and 231) which would raise the total to $3,320.43.

[52] In calculating the total amount of invoices that are not statute barred, I have not included invoice 238 totaling $14,800 as this invoice:

a) Was not properly introduced into evidence; and
b) Purports to be an invoice dated June 18, 2018, for services provided in 2008. The invoice is statute barred on its face.

Application of the Limitations Act, 2002 to the Facts

[53] In the present case there is no issue as to discoverability as Texford is the party who claims to have received and paid certain invoices and/or performed certain services and is also the party who claims to have not been repaid for the invoices or services following payment and/or the rendering of any service.

[54] The applicable limitation period relating to the claim for repayment of the invoices is two years and it is reasonable to conclude that the plaintiff would be expected to seek repayment of any invoice received within 30 days of receipt of the invoice and payment would have been due within 30 days following delivery. Accordingly, only those invoices dated at or following July 21, 2014, would be subject to a claim for repayment and all prior invoices would be statute barred. The claim is therefore limited to repayment of $1,700.03. If I were to extend the reasonable notice period by a further period to include all (proper) invoices dated or following June 1, 2014, on the basis that the parties were “family” and looser timelines may be inferred, the invoices which fall within this category total $3,320.43. In my view this is the total amount of the claim that may be pursued by the plaintiff as all other invoices fall outside the two-year limitation period.

[55] As for whether the defendant is liable to pay the amounts claimed, having considered the entirety of the evidence I find that there is no reliable or credible evidence that would lead me to believe that Texford paid any amount on account of any invoice rendered for the construction/renovation/repair of the house and/or garage from his personal funds that was not paid for, funded, and/or repaid to him by June. My findings are based on the testimony of June and Connie as corroborated by the documents and exhibits filed at trial and include an assessment of the relative reliability and credibility of each of the witnesses.

[56] With respect to the reliability of the evidence and the credibility of the witnesses, as detailed above, June provided reliable and credible evidence regarding the events that occurred relating to the building of the home and the garage throughout the period. June also provided independent corroborative evidence of the work completed, the purchase, funding for the purchase, and payments made relating to the invoices to the third-party contractors.

[57] Texford’s testimony relating to the work completed, purchase, construction and building, and funding of the build for the house and garage located at 179 Bullis Road was neither internally consistent nor logical. Additionally, Texford’s testimony was not meaningfully corroborated by any other witness or any independent document, save and except for the presence of invoices that bore his name which do not speak to the source of funds that paid such invoices.

[58] Having considered all the evidence introduced at the trial of this action, I find that Texford was repaid for all expenses and invoices alleged to have been paid by him by June and John and otherwise was fully and generously compensated for any services that he may have provided at any time relating to the construction/renovations/repairs to the house and/or garage located at 179 Bullis Road.

[59] For the above noted reasons, the claim is dismissed in its entirety.

Costs

[60] Subject to any offer that may affect costs, the defendant June Andrews was entirely successful and is entitled to her costs.

[61] If the parties are unable to resolve the issue of costs, the defendant may serve and file her cost submissions limited to three pages, together with a costs outline, bill of costs, and any offer to settle attached thereto with my judicial assistant at Hannah.sewpersaud@ontario.ca within 30 days of today’s date.

[62] The plaintiff’s response shall be also limited to 3 pages with a costs outline, bill of costs, and any offer to settle attached thereto, also to be served and filed with my judicial assistant within 45 days of today’s date.

[63] Reply, if any, is limited to one page to be served and filed within 50 days.

Released: June 27, 2025