Reasons for Judgment
Court File No.: CV-21-038
Date: 2025/06/30
Ontario Superior Court of Justice
Between:
Claire Lesley Crampton, Plaintiff
– and –
David Lyle Lightfoot and Evelyn Lightfoot, Defendants
Appearances:
Greta Ladanyi, for the Plaintiff
The defendants on their own behalf
Heard: June 17, 18 and 19, 2025
Justice: I.R. Smith
Introduction
[1] The plaintiff and the defendant David Lightfoot met online and began dating. They discovered that they shared an interest in real estate. In the course of their discussions on this topic, Mr. Lightfoot told the plaintiff that he was interested in purchasing a piece of vacant land in Cayuga, Ontario, that had once been owned by a railway company (the “property” or the “rail property,” as the parties referred to it at trial). Because Mr. Lightfoot did not have immediate access to sufficient funds to buy the rail property, he discussed having his mother (the defendant Mrs. Evelyn Lightfoot) and the plaintiff provide those funds to him. Both Mrs. Lightfoot and the plaintiff agreed to contribute to the purchase. Ultimately, Mrs. Lightfoot supplied one third and the plaintiff two thirds of the purchase price, but the property was bought in Mr. Lightfoot’s name alone.
[2] The relationship between the plaintiff and Mr. Lightfoot soured and then failed outright. The plaintiff wanted the money she had put toward the purchase of the rail property returned to her. Mr. Lightfoot did not have the money to pay her back, and refused to sell the property so that he could do so.
[3] Accordingly, the plaintiff launched this action, claiming that all three parties had an oral agreement that the plaintiff would have an ownership interest in the rail property. Among other relief, she seeks a declaration that she is an owner of the property and that Mr. Lightfoot holds it in trust for her, an order that the rail property be sold, and an order that the plaintiff receive two thirds of the proceeds of that sale.
[4] For the reasons which follow, I find in favour of the plaintiff.
Overview of the Evidence
[5] The plaintiff and Mr. Lightfoot began dating in March of 2021. That dating relationship came to an end on June 21, 2021, resumed briefly beginning on July 5, 2021 and was completely over by July 21, 2021. During the relationship’s short life, however, the plaintiff and Mr. Lightfoot came to understand that they shared an interest in real estate investment and spent much of their time together discussing real estate and looking at properties which were for sale.
[6] Before he met the plaintiff, in the fall of 2020, Mr. Lightfoot became aware that the rail property was available for private sale. He engaged the owner and his real estate agent about the possibility of buying the rail property and did research respecting it. After meeting the plaintiff, and no later than March 27, 2021, Mr. Lightfoot shared pictures of the rail property with her, and they discussed the potential for its development. Mr. Lightfoot took the plaintiff to see the property. The plaintiff, who had been working in real estate offices since she was a teenager and had bought and sold multiple properties at a profit, says that she thought it had good investment potential and that she was interested in it. She took her adult daughter to the rail property, so that she could see it too.
[7] The property was offered for sale at $150,000. Mr. Lightfoot made an offer to purchase it at that price on April 16, 2021. The offer was accepted with a closing date of May 7, 2021. Mr. Lightfoot was the only purchaser named on the agreement of purchase and sale (“APS”). He paid a deposit of $5,000.00.
[8] However, Mr. Lightfoot did not have enough money of his own to purchase the rail property. He testified that he was in family litigation with his former spouse, that they had sold their matrimonial home, but the proceeds of that sale were being held in trust by a lawyer pending the resolution of that litigation. Accordingly, before the APS was signed, the plaintiff and Mr. Lightfoot discussed other means of financing the purchase of the property.
[9] The plaintiff says that she and Mr. Lightfoot discussed purchasing the property together as an investment and that, ultimately, she agreed to invest in the property on the understanding that the investment would be a short term one, and that she and Mr. Lightfoot would both have ownership interests in the property and be on title. Mr. Lightfoot says that it was never intended that the plaintiff would be an owner of the property and that her contribution to its purchase was a loan to him. In any case, the plaintiff says that she agreed to provide 50% of the purchase price, or $75,000.00. There were discussions with Mr. Lightfoot’s mother, Mrs. Lightfoot, and it was agreed between the three of them that Mrs. Lightfoot would supply $75,000.00 for Mr. Lightfoot’s half of the purchase price.
[10] However, according to the plaintiff, once the APS was accepted, Mrs. Lightfoot was able to provide only $50,000.00. Accordingly, prior to the closing date, the agreement with Mr. Lightfoot was changed so that the plaintiff would invest $100,000 in exchange for a two-thirds ownership interest in the property which would be secured by an agreement signed by Mr. Lightfoot, and that Mrs. Lightfoot would pay the remaining $50,000.
[11] The plaintiff says that she and Mr. Lightfoot were organizing things for the real estate lawyer and then “all of a sudden” she was told by Mr. Lightfoot that she could not be on title because she did not have an HST number. In cross-examination, she testified that it had been the agreement “from day one” that she was to be on title. Nevertheless, she said that she accepted this reasoning from Mr. Lightfoot and agreed to have the property registered in his name only. She testified that the lawyer was aware of her ownership interest in the property. The plaintiff testified that she discussed with Mr. Lightfoot the need to document her investment in the property and that Mr. Lightfoot agreed, saying he would take care of it.
[12] Text messages between the plaintiff and Mr. Lightfoot [1] on May 4, 2021, confirm that the plaintiff agreed to have the rail property purchased in Mr. Lightfoot’s name alone, but also that she wanted Mr. Lightfoot to have his real estate lawyer prepare “a letter we sign…saying amount i gave.” [2] Mr. Lightfoot responded, saying “Yes my name for HST purposes. I would like to do something to secure your investment.” After some other comments, he added, “My parents [3] are loaning me $50,000.” The plaintiff asked if this meant that she was to supply $100,000.00. Mr. Lightfoot responded in the affirmative and the plaintiff said “i guess just sign off ..i loaned u 100k”.
[13] On May 7, 2021, the transaction closed and only Mr. Lightfoot’s name was added to the deed even though Mr. Lightfoot had not yet prepared any agreement reflecting the plaintiff’s interest in the property. She said that she trusted that Mr. Lightfoot would prepare the agreement and that her investment would be protected. Documents prepared for the transaction, including the statement of adjustments, an undertaking to readjust, a direction regarding title, a general undertaking and a general direction, each list both Mr. Lightfoot and the plaintiff as purchasers of the property, although none of these documents is signed by the plaintiff. Some of them are signed by Mr. Lightfoot, however, and others by the seller of the rail property.
[14] After closing, the plaintiff hired a local farmer, a Mr. Verkamp, to clear the rail property so that it could be made presentable for prospective purchasers when the plaintiff and Mr. Lightfoot were ready to sell it.
[15] The plaintiff testified that problems with Mr. Lightfoot respecting her interest in the rail property began almost immediately after the closing and, by June 21, 2021, the relationship between them had failed for the first time. On that date, the plaintiff began asking repeatedly about how they would deal with the rail property. She wrote, “so again….plan for rail” to which Mr. Lightfoot responded: “I owe you $100,000 and any other experiences incurred by you in regards to the property.” The plaintiff responded with the following question “and….is it being listed for sale then?” The response to this question and the next several texts have been redacted. The next unredacted text, which was written by the plaintiff, reads as follows: “anyway……if ur leaving me…I would like to pu the caddy…and get my $$ pls”. After some further texts which have been redacted, Mr. Lightfoot writes: “I will absolutely give you your money back when I’m able. I would never do that to someone.” Later he adds “….and you will get your money back in good faith”, to which the plaintiff responds “well….the property needs to be sold then…im not hanging on for it”.
[16] In the text exchanges that follow, Mr. Lightfoot repeats that he will “endeavour” to pay the plaintiff the money owed to her, but he refuses to agree to sell the property, and writes that “this purchase was not intended to be a quick flip.” The plaintiff repeatedly asks for the property to be sold and offers to buy out Mr. Lightfoot’s interest in it so that she can sell it. Mr. Lightfoot told her that she could not “force the sale”. At one point, the plaintiff asks Mr. Lightfoot to contact Mr. Verkamp to put a stop to his work clearing the property since she did not want to invest further in it if it was not to be sold. On June 22, 2021, the plaintiff wrote to Mr. Lightfoot and told him that she did not want to hire a lawyer but said that “I want $ asap..or I will seek 2/3 of current value”.
[17] The plaintiff testified at trial that, at first, she did not assert her ownership interest in the property because she just wanted to sever ties with Mr. Lightfoot, get her $100,000 back, and move on. However, when it became apparent that Mr. Lightfoot was not going to return the money promptly, she started to propose the sale of the property, a buyout of Mr. Lightfoot’s interests, and suing to secure her investment. The plaintiff also spoke to Mrs. Lightfoot to explore solutions to this problem.
[18] The plaintiff and Mr. Lightfoot renewed their dating relationship on July 5, 2021. However, when it became clear to her that the Mr. Lightfoot would not agree to put their agreement respecting the rail property in writing, that relationship failed again. In text messages on July 21, 2021, the plaintiff laments the lack of documented “protection” of her “investment” and implores Mr. Lightfoot to sell the rail property or to make her an offer for her share. He responds and says that he does not want to sell and “nor can I buy your portion. You can sell and that individual can go on title (with an HST number).” Eventually he writes as follows: “Get an HST number so you can put your name on title.” Although the plaintiff initially declined to take this advice (hoping that Mr. Lightfoot would just give her the $100,000 she had provided), she later pursued it (when it became clear that she was not going to get her money back quickly). She secured an HST number and had her real estate lawyer prepare the documents to have her name added to the deed. When she told Mr. Lightfoot that she was taking this course on August 6, 2021, he responded “absolutely”, and “I know all this”, and “Funny thing is…. I told you this right from day 1.” He noted, however, that her share in the property was 64.5%, rather than the 66.67% share she was claiming. [4]
[19] The plaintiff’s lawyer wrote to the lawyer who had acted on the closing of the rail property for Mr. Lightfoot, disclosing the plaintiff’s HST number and enclosing a draft amended deed representing the plaintiff’s 66.67% interest in the property for Mr. Lightfoot to sign. Although Mr. Lightfoot’s lawyer wrote back, advising that he no longer acted for Mr. Lightfoot, the plaintiff sent the letter and draft deed to Mr. Lightfoot by text and, at trial, he acknowledged having received it. He did not ever sign the deed, however. Nor has he prepared any other written agreement reflecting the plaintiff’s interest in the property. Nor has he repaid her any of the money that she contributed to the purchase of the rail property.
[20] Various documents and text messages were put to Mr. Lightfoot in cross-examination (and when he was discovered). He denied that any of them showed that he had agreed that the plaintiff had an ownership interest in the rail property. He said that the $100,000 payment from the plaintiff was a loan to him.
The Positions of the Parties
[21] The plaintiff argues that the evidence establishes that she and the defendants had a binding oral agreement whereby she and Mrs. Lightfoot would contribute to the purchase of the rail property in exchange for beneficial ownership of the property proportionate to their respective contributions, which interests would be held by Mr. Lightfoot in trust.
[22] In the alternative, the plaintiff asserts that the evidence establishes a resulting trust whereby Mr. Lightfoot held the plaintiff’s share of the property in trust. In the further alternative, the plaintiff argues that the evidence establishes a constructive trust given that Mr. Lightfoot has been unjustly enriched by her contribution to the purchase of the rail property.
[23] The plaintiff seeks the sale of the rail property and an order that she receive 66.67% of the proceeds of that sale. In the alternative, she seeks damages in the amount of $100,000 plus pre-judgment interest.
[24] Mr. Lightfoot argues that there was no verbal agreement as alleged by the plaintiff, that it was always intended that he be the owner of the rail property, and that the plaintiff’s $100,000 payment was a loan to him which he intends to repay. He asks that the action be dismissed.
[25] Mrs. Lightfoot made no opening statement. She did not give evidence or call any evidence (although she mounted a very short cross-examination of the plaintiff). She made no closing argument. However, the statement of defence was filed in the names of both defendants. I infer that her position is consistent with that taken by Mr. Lightfoot.
Discussion
An Oral Agreement
[26] The plaintiff argues first that the evidence establishes an oral agreement between all three parties whereby Mr. Lightfoot held in trust the beneficial interests of the plaintiff and Mrs. Lightfoot in the rail property. An oral agreement may be given effect if the parties have agreed to the essential terms of the contract and they intend the agreement to be binding: Erie Sand & Gravel Ltd. v. Seres’ Farms Ltd., 2009 ONCA 709, paras. 42–43.
[27] Although there is considerable force to the plaintiff’s submissions on this point, in particular her submission that the evidence establishes an oral agreement between her and Mr. Lightfoot that she would invest in the rail property and be at least a beneficial owner of that property, there is a lack of clarity in the evidence about exactly what was agreed to with Mrs. Lightfoot, especially respecting whether Mrs. Lightfoot’s contribution to the purchase of the rail property was an investment in that property or a loan to her son. Although it might be possible to consider the issue raised by the plaintiff as a question as to whether the evidence establishes an agreement between the plaintiff and Mr. Lightfoot alone, given that the plaintiff has cast this part of her argument based on an alleged agreement between all three parties, I refrain from doing so. In any case, the conclusion I have come to under the following heading, which does not depend on the intention of Mrs. Lightfoot, makes it unnecessary that I do so.
Resulting Trust
[28] The plaintiff’s first alternative argument is that the evidence establishes a purchase money resulting trust. She emphasizes that her payment of $100,000 was used for the purchase of the rail property, that it was intended that she have an ownership interest in the property in proportion to her contribution (even though her name does not appear on title), and that the money she advanced was not intended as a gift or a loan.
[29] The principles respecting resulting trusts were recently summarized as follows by Trotter J.A. in Qu v. Zhang, 2025 ONCA 391, paras. 11–12:
As a general proposition, the law presumes that gratuitous transfers between individuals are not intended as gifts: Pecore v. Pecore, 2007 SCC 17, para. 24. As Juriansz J.A. said in Belokon v. Krygyz Republic, 2016 ONCA 981, para. 56, leave to appeal refused, Entes Industrial Plants Construction & Erection Contracting Co. v. Kyrgyz Republic, [2017] S.C.C.A. No. 74, and Sistem Mühendislik Insaat Ve Sanayi Ticaret Anonim Sirketi v. Kyrgyz Republic, [2017] S.C.C.A. No. 75: “The presumption of resulting trust flows from the principle that equity presumes bargains and not gifts.”
However, the presumption may be rebutted, on a balance of probabilities, by evidence showing that the transferor intended the transfer, whether money or other property, to be a gift: Pecore, at paras. 24, 43; Kerr v. Baranow, 2011 SCC 10, para. 18. This must be based on “sufficiently clear, convincing and cogent” evidence: F.H. v. McDougall, 2008 SCC 53, para. 46.
[30] Dawe J.A. also recently addressed the principles relating to resulting trusts. He wrote as follows in Bradshaw v. Hougassian, 2024 ONCA 425, para. 8:
A purchase money resulting trust can arise “when a person advances funds to contribute to the purchase price of property, but does not take legal title to that property”: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, para. 1. There is a rebuttable presumption that the parties to the purchase “intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution”: Nishi, at para. 1.
[31] Dawe J.A. emphasized (at para. 11) that the focus of the inquiry is the parties’ intentions at the time the money used for the purchase is advanced, although evidence of later conduct may be relevant to establishing those intentions.
[32] In this case, the plaintiff has established all the elements of a resulting trust: (i) that the alleged trustee, Mr. Lightfoot, has title to the property; (ii) that the plaintiff supplied funds for the purchase of the property at the time it was purchased from a third party and transferred into the alleged trustee’s name, and (iii) that the plaintiff acted as a purchaser: Hornstein v. Kats et al., 2020 ONSC 870, para. 204. Mr. Lightfoot has failed to rebut the presumption to which the plaintiff is entitled.
[33] There is no doubt that the alleged trustee, Mr. Lightfoot, alone holds title to the rail property. There is also no doubt that the plaintiff supplied funds which were used for the purchase of that property at the time it was bought from a third party and transferred to Mr. Lightfoot. These points are conceded by Mr. Lightfoot.
[34] Although not conceded by Mr. Lightfoot, I am satisfied that the plaintiff has also established that at the time of the purchase, the plaintiff acted as a purchaser and that this is what the parties intended. The bulk of the evidence supports this conclusion, but I begin with the evidence upon which Mr. Lightfoot relies in urging that the plaintiff’s payment was a loan to him.
[35] Mr. Lightfoot points to (i) text messages predating the purchase of the rail property in which the plaintiff expresses a willingness to lend him money for a real estate purchase; (ii) the evidence that he was researching the rail property and considering its purchase well before he met the plaintiff, (iii) to the text message sent by the plaintiff on May 4, 2021 in which she wrote “i guess just sign off ..i loaned u 100k”, and (iv) the plaintiff’s initial attempts to have Mr. Lightfoot repay the $100,000 provided to him, rather than a two-thirds interest in the property.
[36] With respect to the first of these points, it is not clear to me that the plaintiff was referring to the rail property when she said in text messages that she would loan Mr. Lightfoot money. Indeed, it seems more likely that she was referring to a different property.
[37] Second, the fact that Mr. Lightfoot was interested in purchasing the property for himself before he met the plaintiff is of little moment given that he lacked the funds to do so. He needed the assistance of others to purchase the property. Although Mr. Lightfoot casts the position taken by the plaintiff as an attempt to secure a windfall by taking advantage of his research and knowledge of a good investment opportunity, he could not have taken advantage of that opportunity himself without her assistance (and that of Mrs. Lightfoot). I add that the plaintiff did not just rely on Mr. Lightfoot’s conclusion that the property was a good investment, she looked at the property herself and got the opinions of both a real estate lawyer and a real estate agent. Of course, in addition, she had her own experience as a buyer and seller of real estate upon which to rely.
[38] Third, the plaintiff’s May 4, 2021, text does suggest that her payment was to be considered a loan, but she testified that this isolated reference to a loan needs to be considered along with all the evidence suggesting that she was to receive an ownership interest in the property in exchange for her contribution of funds. She testified that both she and Mr. Lightfoot used the words “loan” and “investment” interchangeably. Her counsel argues that imprecision is to be expected in informal text messages between not especially sophisticated laypersons. I accept the plaintiff’s evidence on this point, and the submission of her counsel. In general, the plaintiff testified in a straightforward manner and her assertions are repeatedly corroborated by the documents. I have concluded that her evidence is credible.
[39] Last, I also accept the plaintiff’s evidence that when her relationship to Mr. Lightfoot failed, she initially sought repayment of the money she had provide to him because she thought that would be the fastest way to sever all ties with him. In other words, she was not disavowing an ownership interest in the property, she was simply trying to find a quick way of leaving Mr. Lightfoot behind and moving on with her life. When it turned out that this was not going to happen, she insisted on her rights as an owner of the rail property.
[40] Most importantly, though, and notwithstanding these isolated pieces of evidence which might support the conclusion that the plaintiff advanced a loan to Mr. Lightfoot, the overwhelming weight of the evidence leads to the conclusion that the plaintiff and Mr. Lightfoot intended that the plaintiff was a purchaser of the rail property and was intended to have a beneficial interest in it notwithstanding that it was to be held in Mr. Lightfoot’s name alone.
[41] First in this category is the viva voce testimony of the plaintiff in which she said that she and Mr. Lightfoot routinely discussed investing in real estate, that they inspected and considered properties for that purpose, and that they discussed purchasing a property together. She said that she was interested in the rail property for its investment potential and sought out advice respecting it both from her lawyer and a real estate agent. She took her daughter to see the property. In my view, this evidence was credible and sensible, and is corroborated by many of the text messages and documents. The plaintiff was interested in making a profit by purchasing and re-selling the rail property.
[42] By contrast, the loan theory of the case advanced by Mr. Lightfoot makes little economic sense from the plaintiff’s point of view. She had no interest nor experience in being a lender. There is no evidence at all that the parties discussed the terms of any loan, its duration, its repayment schedule, how it was to be secured, if at all, or the interest rate that was to be charged. Moreover, there is no evidence that Mr. Lightfoot has made any kind of payment on the alleged loan even though the evidence establishes that some of the money tied up by his family litigation was dispersed to him.
[43] The plaintiff testified that the agreed upon plan was that she was to be on title “from day one” but that Mr. Lightfoot said, shortly before the purchase, that he should be on title alone because she did not have an HST number. This is corroborated by text messages exchanged on May 4, 2021, three days before closing. The plaintiff asks if Mr. Lightfoot had decided “on title on railway.” And then, after a redacted message, writes “put ur name”, to which Mr. Lightfoot responds “Yes my name for HST purposes. I would like to do something to secure your investment.” This exchange supports the conclusion that the plaintiff was to be left off title because she did not have an HST number, not because she was not to be an owner of the property. Moreover, it refers to her interest in the property as an investment, not a loan (although as I have already noted, the plaintiff uses the word “loan” a few minutes later in this exchange).
[44] The fact that the plaintiff was to be an owner “from day one” is also supported by the documents prepared by the real estate lawyer who acted on the transaction. Fully five of the documents refer to the purchasers of the rail property as Mr. Lightfoot and the plaintiff. This is strong corroboration of the claim that the plaintiff was a purchaser of the property and that her name was not to be reflected on title not because she was not an owner but because she accepted Mr. Lightfoot’s advice, provided shortly before closing, that it was better that he be on title alone because she did not have an HST number.
[45] After the transaction closed, the plaintiff behaved as though she was an owner. She took steps to hire Mr. Verkamp to clear the property. In other words, she took steps to improve her investment for resale. I note in this regard that Mr. Lightfoot later offered to cover any expenses (or “experiences”, as he mis-typed in his text message) that the plaintiff had incurred with respect to the property. It is not typically a lender’s role to incur expenses for the improvement of a property in which the lender has no ownership interest.
[46] In the parties’ texts on and following June 21, 2021, after their first break-up, Mr. Lightfoot leaves no doubt about the fact that the plaintiff contributed $100,000 toward the purchase of the rail property. Moreover, although the plaintiff seeks the return of her money, she also asserts an ownership interest in the property. She asks that the property be sold and offers to buy out Mr. Lightfoot’s share so that she can sell it. She directs Mr. Lightfoot to tell Mr. Verkamp to stop any work on the property because she does not want to invest further in the property. Most importantly, she tells Mr. Lightfoot that she wants to force a sale and that if she has to sue to him, she will seek two-thirds of the property’s “current value,” a share reflecting her two-thirds ownership of it.
[47] A month later, after their relationship had failed again, and the parties are again texting each other about the plaintiff’s interest in the property, Mr. Lightfoot leaves little doubt that he regarded that interest to be an ownership interest. He tells the plaintiff that he is not in a position to “buy your portion” of the property. He tells her that she can sell her portion to someone else who can go on title as long as that person has an HST number. He tells her, in the alternative, that she can get an HST number “so you can put your name on title.” As I have said, the plaintiff eventually took this advice and, when she told Mr. Lightfoot that she was doing so, he told her that this had been his advice to her “right from day 1.” This is strong corroboration of the plaintiff’s claim that it had been intended that she be an owner of the rail property “from day one.” Mr. Lightfoot’s texts in this period make sense only if the plaintiff was (and is) an owner of the property. Put another way, none of his texts supports the conclusion that the plaintiff’s $100,000 contribution was a loan.
[48] I reject Mr. Lightfoot’s evidence that he and the plaintiff always intended that he be the sole owner of the rail property. His claim, both at trial and at one point in the text messages, that the plaintiff was unfairly taking advantage of his work identifying and researching the rail property, is not reasonable. As I have already observed, Mr. Lightfoot could not have made the purchase without the assistance of the plaintiff. There was nothing unfair about her having an interest in the property.
[49] Mr. Lightfoot gave evidence that in the period following his break-up with the plaintiff she was harassing both him and his parents in aid of her effort to recoup her money and that he therefore would have said anything to mollify her and to get her to stop. He said that his texts – which, as I have already noted, appear to be supportive of her ownership interest – must be read in this light. He says that he was not actually agreeing that the plaintiff was an owner of the property, he was simply putting her off. Her contribution was a loan, and he would never have agreed to put her on title.
[50] I reject this evidence too. It is simply not credible. While it is clear that the plaintiff was angry and wanted her money back, nothing in the evidence suggests that her behaviour or messages would cause Mr. Lightfoot to make repeated false admissions against interest. I note again that the conclusion that the plaintiff had an ownership interest in the property – which is the admission against interest in question – is corroborated by other evidence, as I have summarized above.
[51] All this evidence leads me to the conclusion that the plaintiff has established the third element of a resulting trust, that she acted as a purchaser of the rail property. Mr. Lightfoot has not rebutted the conclusion that the plaintiff has a beneficial ownership interest in the property.
[52] As I have found that all the elements of a resulting trust have been established, it is not necessary for me to consider the plaintiff’s further alternative argument that the evidence establishes a constructive trust.
Orders and Costs
[53] Having established her interest in it, the plaintiff asks that the rail property be sold and that two thirds of the proceeds of that sale be paid to her.
[54] The Partition Act, RSO 1990, c P.4 (the “Act”), s. 2, provides that those whose interest in real property is “legal and equitable or equitable only” may move for the partition or sale of that property. Accordingly, the plaintiff’s beneficial interest in the rail property created by resulting trust permits her ask the court to invoke the powers set out in the Act: Elham v. Kasra, 2021 ONSC 6433, paras. 64–65. See also: Zheng v. Liu, 2019 ONSC 1550, para. 18.
[55] The right of a co-owner to force the sale of a property is found in section 3 of the Act, which order will be granted unless the party opposing the sale discharges the onus to show that the request for it is malicious, vexatious or oppressive: Ross v. Luypaert, 2025 ONCA 236, paras. 27–28. See also: Zappacosta v. Zappacosta, 2022 ONSC 944, paras. 54–58; Brienza v. Brienza, 2014 ONSC 694, paras. 23–32. There is no such evidence in this case. The plaintiff simply, and understandably, wants the return of the investment to which I have found she is entitled.
[56] Accordingly, I will order that the rail property be sold. However, there is only limited evidence before me of expenses associated with the property. Since the purchase of the property was not financed, there have been no costs associated with carrying a mortgage, but there were closing costs at the time of the purchase and there may have been other costs about which I am not aware, for example property taxes, or costs to maintain or improve the property. I encourage the parties to agree on what costs have been incurred, if any, and how those costs should be apportioned between them. Failing agreement, however, they may apply for directions as provided in the orders set out below. I assume that the property has not been used to earn any rental income or other revenue, but if it has, the parties are similarly urged to agree on how such income or revenue should be divided. Again, the parties may apply for directions should they be unable to agree.
[57] It has not been necessary for me to determine what interest Mrs. Lightfoot has in the rail property. At a minimum, she appears to be an unsecured creditor of Mr. Lightfoot’s. At best, she has a beneficial interest in the rail property held in trust by Mr. Lightfoot. As she is not on title to the property and has not requested any order other than that the action be dismissed, I make no order respecting her interest or for payment to her of any part of the proceeds of the sale of the rail property. The defendants’ share will be paid to Mr. Lightfoot without prejudice to Mrs. Lightfoot’s right to claim some form of entitlement to that share.
[58] Last, with respect to the costs of this action, again I encourage the parties to attempt to reach an agreement. Failing agreement, I ask that the parties’ submissions on costs address specifically the issue of costs for or against Mrs. Lightfoot separately from the issue of costs in connection with Mr. Lightfoot.
[59] I make the following declaration and orders:
(a) I declare that the plaintiff owns 66.67% of the rail property.
(b) The rail property shall be sold pursuant to the Partition Act.
(c) Within 30 days of the release of these reasons, the plaintiff and Mr. Lightfoot will choose a mutually agreeable real estate lawyer (the “solicitor”) to act on the sale of the rail property.
(d) Within 30 days of the date of the release of these reasons, the plaintiff and Mr. Lightfoot will choose a mutually agreeable real estate agent (the “listing agent”) who will list the rail property for sale at a price recommended by the listing agent.
(e) The rail property will be listed for sale no later than 45 days from the date of the release of these reasons unless the plaintiff and Mr. Lightfoot mutually agree in writing to delay the listing.
(f) The plaintiff and Mr. Lightfoot are both entitled to be involved in the sale process.
(g) The plaintiff and Mr. Lightfoot shall direct the listing agent to communicate all issues concerning the sale of the rail property to both the plaintiff and Mr. Lightfoot and to present all offers that are made to both the plaintiff and Mr. Lightfoot.
(h) The plaintiff and Mr. Lightfoot shall accept the first offer that is within 3% of the listing price or, if there is more than one offer, the highest offer that is within 3% of the purchase price.
(i) The plaintiff and Mr. Lightfoot shall cooperate fully with the sale process and shall not interfere in any way with the sale of the rail property.
(j) The proceeds of the sale of the rail property will be held in trust by the solicitor pending written agreement between the plaintiff and Mr. Lightfoot respecting the amount, and the apportionment between them, of the legal and closing costs of the sale of the rail property and any expenses incurred, or revenue earned, in connection with the rail property.
(k) The proceeds of the sale of the rail property will then be dispersed by the solicitor to the plaintiff and Mr. Lightfoot as follows, after accounting for the legal and closing costs of the sale of the rail property, any expenses incurred or revenue earned in connection with the rail property, and the costs of this action: 66.67% to the plaintiff and 33.33% to David Lightfoot.
(l) If the parties cannot agree on costs, the plaintiff may serve and file brief written submissions respecting costs within 7 days of the release of these reasons. The defendants may serve and file brief written submissions respecting costs within 14 days of the release of these reasons. The plaintiff’s reply, if any, may be served and filed within 17 days of the release of these reasons.
(m) If the parties cannot agree on any part of the process for the sale of the rail property as described above, or otherwise require the direction of the court, they may apply to the court for directions.
I.R. Smith
Released: June 30, 2025
Endnotes
[1] Both parties submitted copies of their text messages from the relevant period. The plaintiff’s collection of texts is a brief series of four screen captures from the phone she used at the time. She says that she has since changed phones and no longer has access to the entirety of text messages between her and Mr. Lightfoot. Although Mr. Lightfoot objected to the authenticity of the plaintiff’s screen captures at the outset of the trial, by its end he had conceded their admissibility. Mr. Lightfoot appears to have access to the complete set of texts between the plaintiff and him. He has submitted into evidence a much bigger collection of their text messages, but that collection is heavily redacted. He says that he redacted messages which he regarded as irrelevant. The plaintiff does not object to the admissibility of the redacted texts but asks me to draw an adverse inference against Mr. Lightfoot for having refused to provide the unredacted texts to the plaintiff and/or to the court. I have not found it necessary to draw the adverse inference urged by the plaintiff given the conclusions which I have come to on the record which is available to me.
[2] In these reasons I quote the text messages verbatim, all spelling, grammatical and syntax errors intact. All ellipses in the quoted text messages appear as they do in the original texts.
[3] Mr. Lightfoot’s father has since passed away and, in any case, it appears that to the extent that money from his parents was used to fund the purchase of the rail property, that money came from investments held by Mrs. Lightfoot.
[4] This appears to be an allusion to the fact that Mr. Lightfoot supplied $5,000 as a deposit or for legal fees and closing costs on the purchase of the rail property, which would raise the total cost of the purchase to $155,000. The plaintiff’s contribution would then represent roughly 64.5% of that total. I note that the trust ledger statement of the solicitor who acted on the transaction shows that $487.11 was returned to Mr. Lightfoot following closing.