Court File and Parties
COURT FILE NO.: CV-21-00000317-0000 CV-24-00000249-00ES
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GEOFFREY JULIAN ALLBERT, Plaintiff
AND
JOHN THOMAS CHAMPNESS, Defendant
AND IN THE ESTATE OF Velta Allbutt, deceased
BETWEEN:
GEOFFREY JULIAN ALLBERT, in his capacity as named Estate Trustee of the Estate of VELTA ALLBUTT, Plaintiff
AND
JOHN THOMAS CHAMPNESS, Defendant
BEFORE: Justice Marc R. Labrosse
COUNSEL: Mark A. B. Frederick, Counsel, for the Plaintiff
Michael D. Swindley, Counsel, for the Defendant
HEARD: November 24, 2025
ENDORSEMENT
Background
1Velta Allbut and the Defendant, John Champness, began a romantic relationship in or about 1974. At that time, Velta had one child, Geoffrey Julian Allbert (the “Plaintiff” or “Allbert”), and Champness also had one child, who is not part of this litigation.
2On July 6, 1992, Velta and the Defendant jointly purchased the subject property at 4454 Bath Road, Amherstview, ON (the “Property”). In 1998, Velta and Champness married.
3On December 12, 2008, Velta and Champness signed reciprocal mirror wills and a Mutual Wills Agreement (“the Agreement”) which was attached to the wills.
4The Agreement provided for the following:
a. That the surviving party would have the use of the Property during their lifetime;
b. That the surviving party would hold title to the Property in trust for the estate of the deceased party and himself or herself in equal shares;
c. That the surviving party may hold the Property as a home until death, remarriage, taking of a common-law spouse, the desire to sell the property, or five years following the death of the first party to die, whichever shall first occur.
d. Upon such event, one-half of the proceeds of sale shall be paid to the estate of the first party to die.
e. All funds realized from the sale of any residence shall be known as the “Residence Fund” and shall be dealt with in accordance with the Last Will and Testament of each of the parties.
f. The sole beneficiary of each of their wills was Allbert.
5Velta passed away on December 2, 2009.
6Allbert set up a safety deposit box in his own name shortly after Velta’s death and gave the Defendant a key. Velta’s original will and some valuable gold coins were put in the safety deposit box. Allbert had the ability to access the safety deposit box by no later than July 12, 2010. Allbert states that the Defendant accessed the safety deposit box on at least three occasions, being October 14, 2010, November 5, 2010, and February 21, 2020. Allbert has stated that he did not access the safety deposit box until 2021.
7When Allbert accessed the safety deposit box in or about 2021, he noted that Velta’s original will and two gold coins were missing.
8In or about the same time, Allbert transferred a Retirement Savings Plan (“RSP”) of a value of approximately $20,000 to the Defendant. Allbert claims that it was to ensure that the Defendant had enough resources to pay the ongoing mortgage obligations for the Property. Approximately six months following Velta’s death, Allbert claims that the Defendant had financial problems. Allbert paid off the remaining mortgage on the Property in the amount of some $113,000. Allbert states that both payments were intended as loans “to be adjusted later.”
9Between 2016 and 2020, Allbert states that he had minimal contact with Champness. On June 12, 2020, Champness emailed Allbert to advise that he had remarried and that he had worries about making a will and his new wife’s position as regards to Champness’ interest in the Property.
10The relationship between Allbert and Champness broke down on October 13, 2021, when police were called on a day when Allbert and his wife were visiting Champness at the Property.
11At some point, Allbert caused for a title search to be made and it revealed that the Defendant had registered a survivorship application on title. As a result, the Defendant is now the only person with an interest in the Property on title.
12On November 8, 2021, Allbert, in his personal capacity, commenced an action against the Defendant (the “2021 Action”) seeking the following relief:
a. A declaration that the Agreement is a valid domestic agreement;
b. A declaration that the Defendant’s estate shall be bound by the Defendant’s last will dated December 12, 2008;
c. A temporary order for leave to register a certificate of pending litigation against the Property;
d. An order for the Property to be listed for sale;
e. An order that Allbert be reimbursed for the $113,000 and $20,000 payments made to the Defendant;
f. An order for the balance of the funds of the sale of the Property to be held in trust and paid in accordance with the Defendant’s will;
g. An order for the return of chattels owned by Velta to be returned to Allbert;
h. An order that the Defendant pay damages for the lost chattels.
13On June 19, 2024, the Plaintiff, in his capacity as Estate Trustee for Velta’s estate (the “Estate” or “Velta’s Estate”), commenced an action against the Defendant (the “2024 Action”) seeking the following relief:
a. An order that the Agreement is binding on the parties;
b. A declaration that the Defendant has breached the Agreement by failing to list the Property for sale and by revoking his will dated December 12, 2008;
c. A declaration that the Property is subject to a remedial constructive trust;
d. A declaration that the Property is subject to an express trust as per the Agreement;
e. An order for leave to register a certificate of pending litigation against the Property;
f. An order for the Property to be sold with the proceeds to be distributed in accordance with Velta’s last will;
g. An order that the Defendant’s estate be distributed in accordance with his December 12, 2008 will;
h. A declaration that the Defendant’s estate is bound by the Agreement;
i. A declaration that the execution of the mutual wills severed the joint tenancy and that the survivorship application is void;
j. An order that the Land Registrar amend the title to the property to reflect that Velta’s Estate has a 50% interest with the Defendant;
k. An order that Allbert is the owner of the chattels;
l. An order that the Defendant deliver the chattels to Allbert;
m. An order for damages resulting from the lost gold coins.
14On May 8, 2025, both Allbert and the Estate each filed a notice of motion seeking the following relief:
a. An order consolidating the 2021 Action and the 2024 Action and granting leave to the Plaintiff to deliver a consolidated fresh statement of claim;
b. An order that if not consolidated, that the two actions be tried together;
c. An order that if not consolidated, that the statement of claim in the 2021 Action be amended;
d. An order that if not consolidated, that leave be granted to the Estate to issue a certificate of pending litigation against the Property;
e. An order that the Property be listed for sale and sold.
15Leave was granted to Allbert to register a certificate of pending litigation on title to the Property by Tranmer J. on November 15, 2021.
16At this motion, Allbert did not pursue an order for the Property to be listed for sale and sold.
17By notices of motion in both actions dated August 27, 2025, the Defendant seeks the following relief:
a. An order pursuant to r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for summary judgment;
b. An order pursuant to r. 21 dismissing the action because the court has no jurisdiction over the subject matter of the action; because the Plaintiff is without capacity to commence or continue the action; because there is another proceeding pending in Ontario between essentially the same parties in respect of the same subject matter; and because the action is frivolous, vexatious or otherwise an abuse of process of the court.
18The draft amended statement of claim in the 2021 Action claims the following relief:
a. A declaration that Allbert has an equal ownership interest in the Property;
b. A declaration that half of the interest in the Property is subject to a remedial constructive trust;
c. A declaration that Allbert has a beneficial interest in the Property by way of a resulting trust;
d. A declaration that the execution of the Agreement severed the joint tenancy;
e. A declaration that Allbert be registered as a 50% owner of the Property;
f. Restitution on a value survived basis being $113,000 plus half the amount of the increase in value of the Property.
19For the reasons that follow, I find that the Defendant’s requested relief under r. 21 should be dismissed and that there are clearly outstanding issues requiring a trial that cannot be resolved by way of the powers conferred to the court under r. 20. Accordingly, the motion for summary judgment is also dismissed. In respect of the Plaintiff’s motions, there shall be an order that the actions be tried together or one after the other at the discretion of the trial judge. Leave is also granted to Allbert to file an amended statement of claim in the 2021 Action.
Issues
20The parties have raised a number of issues that require adjudication, and they are summarized as follows:
a. Whether the actions are statute barred by operation of a limitation period;
b. Whether this court has jurisdiction to grant the Plaintiff’s requested relief;
c. Whether the Plaintiff has capacity to bring the 2021 Action;
d. With respect to the 2024 Action, whether there is another proceeding in Ontario between similar parties in respect of the same subject matter, and whether bringing the 2024 Action was an abuse of process of the court;
e. Whether there are genuine issues requiring a trial;
f. Whether the actions should be consolidated, joined or heard together; and
g. Whether the Plaintiff should be granted leave to amend his statement of claim in the 2021 Action.
Analysis
21My analysis of the issues will begin with the rr. 20 and 21 relief sought by the Defendant as this relief seeks the dismissal of the actions. I will then consider the Plaintiff’s motions in the event that both actions continue.
Limitation Periods
22A motion to determine a limitation issue is normally brought under r. 21.01(1)(a) as the determination of an issue before trial. The notice of cross-motion does not plead this rule. Rather, the Defendant seems to rely on r. 21.01(3)(d) for the limitation issues claiming that the actions are frivolous, vexatious or otherwise an abuse of process. The applicability of r. 21.01(3)(d) was neither explored at the hearing of the motions nor in the Defendant’s factum.
23The Defendant does not present any legal argument as to why the limitation issues should be dealt with under r. 21.01(3)(d) or if he is actually relying on this rule. Yet, it is the only other rule referenced in the notices of motion.
24Neither party made any reference to r. 21.01(1)(a) and the need for leave to file evidence.
25The use of r. 21.01(1) to determine limitation issues has recently been addressed by the Court of Appeal for Ontario in Wyatt v. Mirabelli, 2025 ONCA 178, at paras. 20-21, where it was stated:
[20] In Beaudoin Estate, at para. 14, Jamal J.A. (as he then was) outlined the main principles applicable to a r. 21.01(1)(a) motion to determine a question of law. In brief: (i) the test is whether the determination of the issue is plain and obvious; (ii) the pleaded facts in the statement of claim are assumed to be true unless patently ridiculous or manifestly incapable of proof; and (iii) the statement of claim should be read as generously as possible. If the claim has some chance of success, it should be permitted to proceed.
[21] In that decision, Jamal J.A. also noted at para. 31, that in a long line of cases, this court has discouraged using r. 21.01(1)(a) to determine limitation issues, except in very narrow circumstances where pleadings are closed and the facts relevant to the limitation period are undisputed. For instance, both of this court’s decisions in Salewski v. Lalonde, 2017 ONCA 515, 137 O.R. (3d) 750, at para. 45, and Clark v. Ontario (Attorney General), 2019 ONCA 311, 56 C.C.L.T. (4th) 1, at para. 48, rev’d on other grounds, 2021 SCC 18, [2021] 1 S.C.R. 607, have stated that pleadings should be closed before bringing a r. 21.01(1)(a) motion. See also: Toussaint v. Canada (Attorney General), 2023 ONCA 117, at para. 11. That said, as illustrated by the Kaynes decision, there may be exceptions to this requirement but only where the limitation issue is undisputed. This will be unusual as typically one would not expect counsel to advance a claim that is undisputably acknowledged to be statute barred.
26The parties highlight the following statutory provisions:
a. Section 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 (the “RPLA”), provides a 10-year limitation period for claims relating to rights to real property.
b. Section 5 of the RPLA provides for claims relating to deceased’s person’s rights to real property, and states that the 10-year limitation period begins on the deceased person’s date of death.
c. Section 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Limitations Act, 2002”), states that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
d. Section 5(1) of the Limitations Act, 2002 states that a claim is discovered on the earlier of:
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).
27The Defendant alleges that both actions are statute barred in respect of the rights relating to the Agreement, the ownership of the Property, the payments made by Allbert to the Defendant and the chattels alleged to have been taken by the Defendant.
28The Defendant presents his position on the limitation issues as follows:
a. No action was commenced by Velta’s Estate on or before December 2, 2019. The actions are statute barred by operation of ss. 4 and 5 of the RPLA.
b. The Agreement mandated the Property be sold within 5 years of Velta’s death. The Agreement therefore mandated the Property be sold by December 2, 2014. Any claim in relation to the Agreement or the Property would have been discovered on December 2, 2014. As such, the latest date to commence an action would be December 2, 2016, by reasons of the two-year limitation period in the Limitations Act, 2002.
c. In the 2021 Action, the Plaintiff seeks $133,000 in damages related to funds he transferred to the Defendant in 2009 or 2010 and thus that claim would have had to be commenced within two years of the advance of funds.
d. In respect of the missing coins, the Defendant states that the Plaintiff ought to have known about the missing coins as early as October or November 2010. He had access to the safety deposit box and as such, he needed to have commenced his action on the missing coins within a reasonable time. As no claim was started by October 2012, that claim is statute barred by operation of s. 4 of the Limitations Act, 2002.
e. As for the balance of the chattels, the Plaintiffs would have known of the claim for the chattels in October 2010 and no action was commenced by October 2012.
f. The Defendant then takes the general position in respect of the 2024 Action that on March 2, 2022, the Defendant advised the Plaintiff in his statement of defence of the fatal issues with the 2021 Action. The 2024 Action was then commenced in June 2024, which was more than two years after the Plaintiff became aware of the fatal issues with the 2021 Action. Accordingly, the 2024 Action ought to have been commenced by March 2, 2024.
29The interpretation to be afforded to ss. 4 and 5 of the RPLA was addressed by the Court of Appeal for Ontario in Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623. The Court of Appeal stated that the words “action to recover any land” in s. 4 of the RPLA are not limited to claims for possession of land or to regain something but apply to obtain any land by judgment of the Court. These would also apply to claims to the ownership of land advanced by way of resulting or constructive trust: Waterstone at para. 32.
30Further, under s. 5(1) of the RPLA, possession can operate to postpone the commencement of the limitation period if the claimant has been in possession of the land. Section 5(1) postpones the commencement of the limitation period to the time of dispossession or discontinuance: Waterstone at para. 34.
31In the present case, the Defendant alleges that the Estate became dispossessed as of Velta’s death. I disagree. In the present case, there was no cause of action on Velta’s death. Her estate had an agreement which contemplated that her half-ownership in the Property would be held in trust for her. In addition, there was no right to require the sale of the Property for a period of five years. Accordingly, it is not plain and obvious as to what date the limitation period in s. 5 of the RPLA began to run. There is an argument that the Estate only became dispossessed when the Defendant did not proceed with the sale of the Property on December 2, 2014. The ten-year limitation period would then have expired on December 2, 2024, and by that date, both actions had commenced.
32The 2021 Action commenced on November 8, 2021. The limitation issue has been raised not only in respect of the Agreement and the ownership of the Property under the RPLA, but also in the context of the claim for payment of the debt and the return of various chattels under the Limitations Act, 2002.
33Allbert is the only beneficiary of the Estate. He makes a claim against the Defendant that he has an interest in the Property, that he loaned—as a demand loan—the funds from the RSP and the funds to pay off the mortgage. He also seeks for the various chattels to be returned to either the Estate or himself as the sole beneficiary.
34In terms of the Agreement and the sale of the Property, it is not plain and obvious as to how the limitation issues will apply as it will depend on findings of fact made at trial. The Defendant argues that the RPLA applies, but that certain elements of the claim are subject to the Limitations Act, 2002, and that the 2024 Action is statute barred in its entirety in relation to the “fatal issues” with the 2021 Action. The argument advanced by the Defendant is not entirely clear, nor are the alleged “fatal issues”.
35The limitation issues are anything but plain and obvious. They are intertwined between the interpretation of rights under the Agreement, the requirement to sell the Property by December 2, 2014, the factual findings as to the payment of funds Allbert transferred to the Defendant in 2010 or 2011 and the rights relating to the chattels. In this case, the Plaintiff presents a legitimate argument that his interest under the Agreement did not expire until ten years after December 2, 2014. Assuming that he has standing to bring the claim, it is a claim to obtain an interest in land. As of the date of the survivorship application, the Property has been transferred to the Defendant in his sole name. The Plaintiff seeks an interest in that property and his claim may lie under s. 4 of the RPLA, as a constructive or a resulting trust claim.
36In addition, the circumstances surrounding the Property are influenced by paragraph 1 of the Agreement, which may be a standalone obligation on the survivor to hold the Property in trust for the estate of the deceased. Here, there are issues surrounding the effect of the trust created by paragraph 1 of the Agreement and whether this is a stand-alone obligation that is not impacted by the triggers set out in paragraph 2 of the Agreement. I am of the view that this point is significant when considering the Agreement and the impact of the triggers set out in paragraph 2. It shall be an issue if paragraph 1 creates a proper trust and it shall be an issue for trial if the criteria for a trust have been met: see Angus v. Port Hope (Municipality), 2017 ONCA 566, at para. 95, leave to appeal refused, [2017] S.C.C.A. No. 382.
37Turning now to the transfer of $133,000 paid by Allbert to the Defendant, the proper way to qualify the nature of those transfers calls for findings of fact to be made. Was it a gift, a loan, a demand loan or something else. These are findings of fact that cannot be made on the limited record that is before this court.
38When considering the limitation period for the $133,000, that claim will depend on the qualification of the payment. If it was a demand loan, that would be different than a simple unqualified loan which may be subject to the basic limitation period under the Limitations Act, 2002. There may end up being important credibility issues surrounding the qualification of the payment from Allbert to the Defendant. A mini trial on this discrete issue would not advance matters sufficiently given all of the other issues that would still require adjudication at trial. The limitation issue certainly is not plain and obvious.
39The Plaintiff has also advanced the claim for unjust enrichment, which will require the court to make findings of the juristic reason for the payment from Allbert to the Defendant. This is another issue for the trial judge to determine after findings of fact are made about the nature of the payments.
40Turning to the chattels, these are impacted by the factual circumstances and issues of discoverability. When considering the gold coins, there is a clear issue as to when Allbert ought to have known that they had been removed from the safety deposit box. The safety deposit box was in Allbert’s name, and there is an argument that he assumed that they would not have been removed without his authorization. In this regard, the court is influenced by the answers given by the Defendant during examinations, which were, at best, unreliable and may have been misleading. There are credibility issues surrounding what the Defendant did with the contents of the safety deposit box.
41As for the other chattels, there are claims to silverware, artwork, a 2003 Mercedes and 2004 Pontiac Vibe, which the Plaintiff claims have not been returned to the Estate. The Plaintiff claims that the torts of detinue and conversion are applicable. There are issues as to when they should have been returned to Allbert as the sole beneficiary of the Estate and also when Allbert should have taken action for the return of these chattels.
42For the reasons set out above, I conclude that the limitation issues are not plain and obvious. There are numerous triable issues surrounding the applicability of the RPLA and the Limitations Act, 2002, and these statutes apply at different levels in relation to the Agreement, the Property, the transfers of funds and the chattels. However, the Defendant is not precluded from raising the limitation defences at trial.
Jurisdiction
43The Defendant relies on s. 21.8(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) to claim that the Family Court has jurisdiction over proceedings involving marriage contracts and claims for constructive or resulting trust involving persons who have cohabitated. The Defendant states that the Agreement falls under the description of a marriage contract and that actions for relief under a marriage contract fall under Part IV of the Family Law Act, R.S.O. 1990, c. F.3. As such, they are to be commenced, heard and determined in the Family Court. In support of his position, the Defendant provides no authority on the proper interpretation of s. 21.8 of the CJA.
44In response, the Plaintiffs rely on the direction of the Court of Appeal for Ontario which has stated that in order to find that the Superior Court of Justice does not have jurisdiction over a claim, it must be “clear and equivocal” that the jurisdiction has been ousted: Skof v. Bordeleau, 2020 ONCA 729, 456 D.L.R. (4th) 236, at para. 9.
45While there may be a debate as to if a mutual wills agreement is a domestic contract, it appears to fall under that definition as it is an agreement by two persons who are married in which they agree on their respective rights and obligations on death.
46However, many courts have interpreted the jurisdictional issue created by s. 21.8 of the CJA, and in most cases, those courts look to determine what is the pith and substance of the claim: see Pilon v. Lavigne, 2016 ONSC 1965, at para. 41.
47In the present case, the first observation to be made is this is not a claim that is being tried as part of an existing family law relationship. The Agreement was entered into in the course of a family law relationship, and it is meant to deal with issues that follow the death of one of the parties. The current dispute is between the Estate of the wife, of which her son is the sole beneficiary, and the husband defendant.
48I acknowledge that claims have been made for unjust enrichment and claims to a constructive trust are most often litigated in the Family Branch. However, these claims are not at the heart of the dispute.
49This is not a traditional dispute between spouses, and it does not seek traditional relief such as support or parenting orders. This is a dispute between an estate/beneficiary and the former spouse. I am of the view that the pith and substance of this dispute is an estate matter, not a family law matter. There is no doubt that this matter can properly be continued in the Superior Court of Justice and that it need not be in the Family Court. While the Agreement originally came to life within a family relationship, the ongoing dispute is an estate matter that does not require the expertise of the Family Branch. It is certainly not clear and equivocal that the actions are in the wrong jurisdiction.
Capacity
50The Defendant has asked the court to dismiss the 2021 Action because Allbert is without legal capacity to commence or continue the action under r. 21.01(3)(b).
51The Defendant argues that Allbert lacks capacity to bring his claims under this action by reason that: (1) Allbert is not a party to the Agreement; (2) Allbert has no interests in the Property; and (3) Allbert has no capacity to bring any claims in relation to the recovery of funds paid out of Velta’s assets or the chattels previously owned by Velta.
52To succeed in a capacity motion under r. 21.01(3)(b), the Defendant must satisfy the court that it is plain and obvious that the plaintiff lacks legal capacity to proceed with the action: Zuppinger v. Slightham, 2019 ONSC 5117, at para. 9.
53In the present case, Allbert is the sole beneficiary of his mother’s estate. The Agreement is structured to ensure that wills were prepared by Velta and the Defendant to secure the beneficiary interest of Allbert. When considering the rights flowing from the Agreement and the ownership of the Property, this dispute concerns the Mutual Wills Agreement. Beneficiaries have been permitted to bring actions to enforce their rights arising from such agreements: see Hall v. McLaughlin Estate; Nelson v. Trottier, 2019 ONSC 1657.
54While the issue of capacity does not seem to have been argued in those cases, I am unable to see how Allbert does not have the capacity to maintain a claim based on a beneficial interest. It is certainly not plain and obvious that a beneficiary cannot maintain the claims made.
55The Defendant relies on Cougle v. Menzies et al., 2023 ONSC 1110, in support of his position that a person who does not have a personal claim in a matter does not have the capacity to bring an action. The same would apply to someone who sues on a contract but has no privity of contract.
56While these may be sound principles in certain circumstances, they do not apply to the present case. A third-party beneficiary has standing to bring an action on the Agreement and also in respect of the property that was supposed to generate his entitlement under the mutual wills: see Edell v. Sitzer (2001), 55 O.R. (3d) 198 (S.C), at para. 57, aff’d, 2004 654 (ON CA), 187 O.A.C. 189 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 372.
57In respect of the payment of funds to the Defendant, these funds were paid by Allbert and he clearly has a right to pursue an action for the reimbursement of those funds. As for the chattels, the same beneficial interest applies. I disagree that he cannot pursue a claim related to chattels that he was supposed to inherit as the sole beneficiary of both wills which are the subject of the Agreement: Edell, at para. 57.
58The Defendant’s relief under r. 21.01(3)(b) is dismissed.
Another Proceeding Pending in Ontario
59It is odd that the Defendant has pursued a challenge to the two related claims while maintaining the position that Allbert lacks capacity to sue under the Agreement. The Defendant advanced no argument that the Estate lacks capacity to sue. Instead, the Defendant alleges that the wrong individual started the 2021 Action, yet now objects to the Estate advancing its claim in the 2024 Action.
60The Plaintiff agrees that the 2024 Action was intended to rectify any perceived issues with the 2021 Action. Now, the Defendant challenges the attempts by the Plaintiff to address his objection. While I appreciate that the procedural way to address the alleged deficiency may have been to amend the 2021 Action and add the Estate as a plaintiff, that can now be cured by the consolidation motion or the ability to have the matters tried together.
61The Defendant has certainly not alleged that the 2024 Action was brought to put the Defendant to the inconvenience, delay and expense of a second action to intimidate him into submission: see Cashin Mortgages Inc. (Verico Cashin Mortgages) v. 2511311 Ontario Ltd. (Mortgages Alliance – Main Street Mortgages), 2024 ONCA 103, 170 O.R. (3d) 107. In Cashin, that court relied on evidence that the second action was brought with no viable explanation and that it resulted from the acrimonious relationship between the parties: at para. 19.
62I agree that there are a number of triable issues that flow from the 2021 Action, and it warranted the inclusion of the Estate in the litigation.
63In the present case, there is a viable explanation for the second action, and it is not plain and obvious that the 2024 Action was brought for an improper purpose. I conclude that the Defendant’s request pursuant to r. 21.01(3)(c) is dismissed.
Summary Judgment
64As a result of my findings on the r. 21 issues, the court is generally of the view that it is not plain and obvious that the claim should be dismissed based on the issues raised by the Defendant. This on its own would suggest that there are issues that warrant a trial.
65However, the court must not stop there. The proper test under r. 20 is to determine if those issues require a trial. I must therefore turn my mind to see if the summary judgment process: (1) allows me to make the necessary findings of fact; (2) allows me to apply the facts to the law; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.
66I conclude that I am unable to make the necessary findings of fact, nor am I able to apply the facts to the law. There remain significant findings of fact and/or law that must be made with respect to the limitations issues. Issues of discoverability exist surrounding the chattels, particularly the coins in the safety deposit box. Significant findings of fact and credibility will need to be made to determine the nature of the payments made by Allbert to the Defendant, including whether those payments were donations, loans, or demand loans. Additional evidence is also required regarding that issue and the issues of the chattels.
67There is also a significant factual and legal issue of determining if the Defendant has a stand-alone obligation to hold the Property in trust for Velta’s Estate and himself in equal shares. Here, there are findings of fact required surrounding the understanding of the parties given that the communications between them suggest that the Defendant did not understand that the Agreement was at an end when the Property was not sold in 2014, but he may not have had legal advice on that issue. Findings of fact are also required as to the nature of the trust created under paragraph 1 of the Agreement. In addition, paragraph 4 of the Agreement calls for the Agreement to be terminated upon the death of the survivor. This provision must also be considered at trial in the event that paragraph 1 creates an express trust, which is independent of paragraph 2 of the Agreement. These are issues that cannot be addressed by the court by using the fact-finding powers found within r. 20 based on the record before me.
68The issues continue to be numerous, particularly the issues surrounding the various limitation periods alleged by the Defendant.
69The motion for summary judgment is dismissed.
Consolidation
70Having dealt with the cross-motion which sought to bring an end to these proceedings, the court must now turn to the Plaintiff’s motion to consolidate the 2021 Action with the 2024 Action.
71The law relating to consolidation under r. 6.01 has been considered by the Court of Appeal for Ontario in Windrift Adventures Inc. v. Ontario (Animal Case Review Board), 2023 ONCA 690, at paras. 9-10, 13:
[9] Rule 6.01(1) of the Rules provides that the court has discretion to consolidate proceedings in the following circumstances:
6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,
(a) they have a question of law or fact in common;
(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or (c) for any other reason an order ought to be made under this rule, the court may order that,
(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; ….
[10] The consolidation rule strives to avoid a multiplicity of proceedings; promote timely and inexpensive determination of disputes; and avoid inconsistent judicial findings: Li v. Bank of Nova Scotia, 2023 ONSC 4235, at para. 62. The test for consolidation is twofold: first, the court must determine whether the moving party has established that any of the criteria under r. 6.01(1) are met; and second, if any criteria have been met, the court must consider whether the balance of convenience favours a consolidation order: Li, at para. 62.
[13] In CN v. Holmes, 2011 ONSC 4837, at para. 43, Brown J. (as he then was), reviewed the principles underlying consolidation and stated: “In exercising its discretion whether to order the consolidation of proceedings or that they be heard simultaneously or consecutively, the court will consider the general rule, mandated by the Courts of Justice Act, that, as far as possible, multiplicity of proceedings shall be avoided, and a variety of factors including: (1) the extent of the difference of commonality of the factual or issues in the proceedings; (2) the status of the progress of the several proceedings; and (3) the convenience or inconvenience, in terms of time, money, due process and administration, of bringing the proceedings together.”
72A non-exhaustive list of factors that are relevant to the consolidation of an action were also set out by Dash J.A. in 1014864 Ontario Ltd. V. 1721789 Ontario Inc., 2010 ONSC 3306, at para. 18. From those factors, the Defendant relies on the following as being most relevant to the present motion:
a. There are different issues in both actions;
b. A decision in the 2024 Action would likely put an end to the 2021 Action or significantly increase the likelihood of settlement; and
c. The prejudice the Defendant will suffer if the actions are consolidated.
73While the Defendant relies on some practical issues relating to keeping the two claims separate as it may encourage a resolution, the Defendant’s main argument against consolidation focuses on the different nature of the claims between Allbert and the Estate and how the limitation period issues differ in a significant way. Further, the Defendant claims that the consolidation of the actions will allow the Plaintiff to circumvent several fatal issues with the 2021 Action. The Defendant will lose the ability to rely on its capacity defence and its limitation defences.
74While the Plaintiff relies on the decisions in CN v. Holmes, 2011 ONSC 4837 and 1623242 Ontario Inc. v. Great Lakes Copper Inc., 2013 ONSC 2548, it should be noted that neither of those cases ordered consolidation. In CN, the court ordered that the two actions be heard one immediately after the other: at para. 55. In Great Lakes Copper, the court ordered that the actions be tried together or one after the other: at para. 63.
75There is no doubt that there are a number of factors which favour consolidation. A reading of both statements of claim (and also of the draft amended statement of claim in the 2021 Action) raises common issues concerning the Agreement and the determination of interests in the Property and the chattels. The claims made by Allbert and the Estate overlap. The Estate’s interest flows down to Allbert as the sole beneficiary. Clearly, the subject matter of both claims arises out of the same occurrence.
76However, the Defendant in the 2021 Action has focused on Allbert’s status as a plaintiff and the challenge to the various limitation periods. In argument during the motion, the Defendant stated that if the actions are not dismissed by way of the Defendant’s cross-motion, then it would be appropriate to allow the proposed amendment to the 2021 Action and the Defendant could live with having the matters heard together.
77My conclusion on this issue is that the actions should be tried together or one after the other, at the discretion of the trial judge, and that the pleadings should remain distinct. I acknowledge a number of factors that favour consolidation, however, the expiration of the limitation periods and how those will apply to the claims remain live issues. The capacity of Allbert to seek certain remedies in the 2021 Action are also going to be argued before the trial judge. There are significant issues surrounding the limitation periods and how they may apply differently to Allbert and the Estate, which merit that the pleadings remain distinct.
78Finally, Allbert has now prepared an amended statement of claim in the 2021 Action. The Defendant may have to amend his defence. The parties have already done their pleadings in the 2024 Action. I see little merit in consolidating and having the parties start over at the pleadings stage. The trial judge will surely be able to manage both claims and the different pleadings without the need to start over with a consolidated pleading.
79The Plaintiff’s motion for consolidation is allowed in part. The actions should be tried together or one after the other, at the discretion of the trial judge. Leave is granted to Allbert to amend his statement of claim as per the amendment attached to his affidavit. The Defendant will have 30 days to file an amended statement of defence.
Conclusion
80Accordingly, leave is granted for these claims to proceed together and the mechanics of how they are heard at trial will be left to the trial judge. The pleadings will remain distinct and the amendment to the 2021 Action is authorized. The Defendant has leave to amend his defence in the 2021 Action within 30 days or such other period as the parties may agree.
81The cross-motion is dismissed.
Costs
82The Defendant made submissions that he was seeking a costs award of $5000.00 as a result of the Plaintiff not having pursued the sale of the Property on the motion. He states that cross-examinations would not have been necessary if it was only an issue of consolidation. This issue will have to be further explored in costs submissions. There were important portions of the Defendant’s cross-examination that were used at the motion, particularly in terms of the limitation period and the chattels. The Defendant may only be making reference to the cross-examination of the Plaintiff, but that was not clear. Further submissions by the Defendant will be required if this position is maintained and a bill of costs breaking down the applicable time spent will have to be provided.
83Otherwise, the parties are encouraged to resolve the issue of costs of these motions. If they are unable, the Plaintiff will have 30 days to provide written costs submissions, and the Defendant will have 30 days to respond. Costs submissions shall not exceed three pages, excluding attachments, and shall comply with r. 4.
Justice Marc Labrosse
Date: March 11, 2026
CITATION: Allbert v. Champness, 2026 ONSC 1481
COURT FILE NO.: CV-21-00000317-0000 CV-24-00000249-00ES
DATE: 2026/03/11
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Geoffrey Julian Allbert, Plaintiff
AND
John Thomas Champness, Defendant
BEFORE: Justice M. Labrosse
COUNSEL: Mark A. B. Frederick, for the Plaintiff
Michael D. Swindley, for the Defendant
ENDORSEMENT
Justice M. Labrosse
Released: March 11, 2026