George v. George, 2026 ONSC 1544

CITATION: George v. George, 2026 ONSC 1544

COURT FILE NO.: CV-25-00741208-0000

DATE: 2026-02-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROBERT ADRIAN GEORGE V. ROBERT ALFRED GEORGE AND MICHELE WARTON

BEFORE: ASSOCIATE JUSTICE ECKLER

HEARD: Friday November 28^th 2025 and Monday December 1^st, 2025 by videoconference

COUNSEL: Peter Smiley and Nikolas Shymko appearing for the defendant Robert Alfred George/ moving party

Michael Crampton appearing for the defendant Michele Warton/moving party

Rishi Sharma appearing for the plaintiff Robert Adrian George/responding party

REASONS FOR DECISION

Overview

1This action involves an unfortunate family dispute between a son, his father and his father’s common law partner. The central dispute between the parties relates to their alleged ownership interests in two properties.

2The defendants Robert Alfred George and Michele Warton bring these motions pursuant to Rule 37.14(a) of the Rules of Civil Procedure for an order setting aside the ex parte Order of an Associate Judge dated April 24th 2025 granting leave to register a Certificate of Pending Litigation against title to the property municipally known as 199 Pine Street, Gananoque, Ontario, ( “the Bulloch Property”), for failure to make full, frank and fair disclosure.

3In the alternative, the defendants seek an order discharging the ex parte CPL registered by the plaintiff on title to the Bulloch Property.

4The defendant Robert George brings a further motion seeking leave to register a Certificate of Pending Litigation with respect to a property currently owned by his son and municipally known as 25 Newman Avenue, Richmond Hill, Ontario. (“the Newman Property”)

Factual Background

5The plaintiff Robert Adrian George (“Adrian”) is 58 years of age and is the only son of the defendant Robert Alfred George (“Robert”). Robert is 82 years of age and currently in ill health. Given that the parties share the same last name, the parties shall be referred to by their first names.

6The defendant Michele Warton is 60 years of age and is the common law spouse of the defendant Robert. Michele and Robert have been in a relationship since 2015 and have been living together since February 2017. They remain common law partners to this day.

7Robert describes raising Adrian as a single parent after Adrian’s mother abandoned him when Adrian was four years of age. Robert characterizes his relationship with his son as being marked by addiction, emotional volatility, impulsive behaviour and poor decision making on Adrian’s part, all of which have impacted Adrian’s relationships and financial situation throughout his life. Robert’s evidence is that he has provided significant financial assistance to Adrian throughout his lifetime, including providing cash deposits and the transfer of two properties, a cottage and the Newman House, with a combined total value of close to $2 million.

8Adrian denies that his mother abandoned him and denies that he currently suffers from any psychological or mental health issues. He also denies that he exhibits emotional volatility, impulsive behaviour, or poor decision-making or that he suffers from addiction issues. He maintains that he has been employed since 1987, has held various employment positions, and that he fully supports himself financially and is entirely self-sufficient.

9Adrian maintains that he was not a priority in his father’s life. Adrian does not dispute that Robert has provided him with financial support during his lifetime. However, Adrian describes the financial support provided by Robert as being “voluntary, gratuitous” and often related to property maintenance or repairs. Adrian does not dispute that in 2007, Robert provided him with a $50,000 gift to enable him to buy out his half-brother’s interest in a property located at 38 Degrassi Street, Toronto, Ontario (“the Degrassi Property”) or that Robert transferred his Marmora, Ontario cottage to him in August 2023.

The Bulloch House

10When Robert met Michele in late 2015, Robert resided at his unencumbered property located at 25 Newman Avenue, Richmond Hill, Ontario. (“the Newman Property/House”)

11Robert describes that in 2015, he was healthy, financially independent and working full-time as a senior executive. At this same time, Michele owned and operated a transportation company, Mint Logistics Inc. Michele was the sole owner of Mint Logistics from the time of its formation in December 2012 until she closed the business at the end of 2019.

12In February 2017, Michele’s lease on her existing residence was set to expire. Instead of renewing the lease, Robert asked Michele to move into the Newman House with him. Michele began living with Robert in the Newman House in approximately February 2017 and they have lived together since that time.

13In 2017, Robert suggested to Michele that they purchase a home, at first to spend weekends at, with the plan that they would eventually retire at the property together.

14After looking at approximately eight houses, Michele and Robert decided to purchase a historic residential property located at 199 Pine Street in Gananoque, Ontario. (the “Bulloch House/Property”) The Bulloch House is a Victorian home built in 1888, with five bedrooms.

15Michele and Robert purchased the Bulloch House as tenants in common on August 31st 2017. They purchased the Bulloch House together for approximately $740,000, financing the purchase with a mortgage in the amount of $940,000 secured against the Newman House.

16After the Bulloch Property was purchased in 2017, for more than two years, Robert and Michele contributed equally to all household and property related expenses. In July 2018, Michele opened a bed and breakfast business (“B&B”), operated out of the Bulloch House. The B&B is now a successful business hosting approximately 3000 guests per year. Income from the B&B is deposited into Robert and Michele’s joint bank account and funds their lifestyle together. It is the evidence of both Robert and Michele that Michele’s financial and operational contributions to the Bulloch House have been continuous and substantial.

17In early 2021, Robert and Michele made the decision to remove Michele’s name from title to the Bulloch House in what they describe as an overly cautious attempt to protect the Bulloch House from spurious claims that might have arisen as a result of Michele closing Mint Logistics. No such claims arose and Michele was added back on title to the Bulloch House as joint tenant on March 4^th 2025.

Robert’s Health Issues

18Robert began experiencing serious health issues in 2020 including kidney failure, and in 2021, he was diagnosed with colorectal cancer and congestive heart failure. The onset of Robert’s health issues resulted in Michele becoming his primary caregiver, including administering his home hemodialysis after receiving training on how to perform the treatment. She continues to manage his care and the day to day operations of the B&B. The care tasks, including taking Robert to hospital visits in Kingston, managing Robert’s diabetes and performing Robert’s self-care, including ostomy care and blood work occupy 25 to 30 hours of Michele’s time per week.

19Despite the evidence of Robert and Michele outlining Michele’s devotion to caring for Robert, Adrian’s evidence is that Michele’s influence on Robert has had a detrimental impact on Robert’s health. Adrian maintains that Michele is interested in Robert for his money. Adrian is of the view that Michele is exerting undue influence over Robert’s finances and is acting in her own self-interest.

20Michele’s evidence is that while Adrian tries to portray her as a “gold digger”, she maintains that nothing could be further from the truth. Michele highlights that almost all of Robert's assets have been gifted to Adrian. Michele also points out that the revenue that she generates from the B&B flows into the couple’s joint account such that Robert has enjoyed significant financial benefit from their relationship.

21Robert describes Michele as being not only his partner and caregiver, but also the person with whom he has built a home, a business, and a future. Robert’s evidence is that Michele is his common-law spouse of nearly a decade. He maintains that he has consistently expressed to Michele, and to others, his intention that she remain financially secure and reside at the Bulloch House after his passing.

Transfer of the Newman House

22Robert maintains that as his health began to decline in 2022, Adrian became increasingly fixated on ensuring that all of Robert’s real property would pass to him and not to Michele. According to Robert, Adrian repeatedly invoked his status as Robert’s only child and exerted escalating pressure on Robert to transfer both a cottage and the Newman House to Adrian during Robert’s lifetime.

23Robert’s evidence is that in or around May 2022, after Adrian listed his Degrassi House for sale, Adrian moved into the Newman House, which was vacant at the time, to reside rent-free. Robert maintains that while Adrian contributed partially to minor expenses, Robert continued to cover significant property-related expenses with respect to the Newman Property.

24Robert’s evidence is that after being pressured by Adrian, he eventually agreed to transfer the Newman House to Adrian.

25Adrian denies that he pressured or coerced Robert to transfer any properties to him, including the Newman House. Adrian maintains that the transfer of the Newman House was made voluntarily and intentionally by Robert. Adrian’s evidence is that Robert expressly advised and confided in him on numerous occasions that he was to inherit his properties and that it was Robert’s intention to gift the properties to him during his lifetime. Adrian maintains that it was Robert who initially suggested that he move into the Newman House and that without any pressure or influence from Adrian, Robert advised Adrian, in or around the spring of 2024, that he wished to transfer the Newman House to him.

26Adrian also relies on the evidence of his aunt Gail Burns. Ms. Burns is Robert’s sister and her evidence is that based on discussions with Robert, she believes that the transfer of the Newman property from Robert to Adrian was made intentionally out of love and affection. She maintains that the real estate documents prepared by Mr. Summerville confirm this intention.

27There is no dispute between the parties that in or around May 2024, Adrian and Robert jointly retained a lawyer, Mr. Wayne Summerville to assist with the transfer of the Newman House to Adrian.

28Mr. Summerville advised Robert and Adrian that in order to avoid Adrian having to pay a land transfer tax upon the transfer of the Newman Property to Adrian, the mortgage in the amount of $844,925.00, on the Newman House should first be discharged, after which the property could be gratuitously transferred to Adrian as a gift for nominal consideration.

29The central dispute between the parties is rooted in large part around the events surrounding the discharge of the Newman House mortgage.

30It is Robert’s evidence that in order to effect the transfer of the Newman Property as recommended by their lawyer Mr. Summerville, Adrian agreed to use a portion of the proceeds from the sale of the Degrassi House to discharge the outstanding mortgage on the Newman House.

31In or around June 2024, Adrian provided Robert with the Discharge Funds of $844,925.00 (“the Discharge Funds”) which Robert used to discharge the BMO mortgage on the Newman House, as they had agreed and in accordance with Summerville's advice.

32Robert’s evidence is that at no time did he agree to repay the Discharge Funds, nor did he and Adrian ever discuss repayment, either privately or in the presence of Mr. Summerville. Robert’s position is that the entire transaction was structured as a gift, consistent with his donative intention. Robert understood that the Discharge Funds were provided solely to facilitate the discharge of the mortgage such that title could be transferred to Adrian without Adrian having to pay any land transfer tax. According to Robert, the transfer was effected in accordance with their agreement and Mr. Summerville's advice.

33Adrian has a different view of the arrangement which he alleges that he and Robert agreed to with respect to the transfer of the Newman Property to him. Adrian alleges that he and Robert agreed that Adrian would discharge the mortgage on the Newman House using Adrian’s funds, and that the Discharge Funds would be considered as a loan to Robert which Robert would repay at a later date. Adrian’s position is that after the mortgage was discharged on June 18th 2024, with funds advanced by him, the Newman House was to be transferred to him. According to Adrian, it was agreed that Robert would then repay Adrian $844,925.00 representing the amount paid to discharge the Newman House mortgage.

The Promissory Note

34Robert alleges that on or about September 8th 2024, prior to the Newman Property transfer being finalized on September 13th 2024, without Mr. Summerville’s knowledge, Adrian used ChatGPT to prepare a demand promissory note in the amount of $844,925.00 bearing interest at 5.0% per annum. (“the Promissory Note”) Robert alleges that Adrian presented the Promissory Note to him when he was ill and demanded that he sign it. Without the benefit of counsel, Robert did so. Robert highlights that without his knowledge, Adrian surreptitiously videotaped Robert signing the Promissory Note. Robert only became aware of the video after his defence and counterclaim were served in this action.

35Robert argues that the video makes it clear that the nature, terms, and implications of the Promissory Note were not explained to Robert; he was simply told to “sign here”. Robert argues that the purported Promissory Note does not, even on Adrian’s own evidence, reflect a common understanding between Adrian and Robert on the terms of the purported Note’s repayment and applicable interest. Robert has also provided evidence from Mr. Summerville's counsel, Rosen Sack LLP, who has since confirmed that Mr. Summerville's file relating to the transfer of the Newman Property to Adrian"does not have a file or any documents, notes or records relating to the preparation of, or any discussions regarding, a promissory note".

36Adrian strongly denies and refutes the allegation that the Promissory Note was fraudulent or that he acted deceitfully toward Robert. On the contrary, Adrian argues that Robert was clearly informed of the Promissory Note and was aware of its existence prior to the meeting on September 8, 2024 when the Note was signed.

37Adrian’s evidence is that in or around the beginning of September 2024, he proposed the idea of a Promissory Note to Robert to enforce the repayment of the Discharge Funds. Robert was agreeable to this method of repayment and confirmed that he would honour the agreement once formalized. Therefore, shortly after receiving his approval, Adrian drafted a Promissory Note which was to be reviewed and executed by both Adrian and Robert.

38Robert maintains that after the transfer of the Newman Property to Adrian, Adrian became the sole registered owner of both the Marmora Cottage and the Newman House, which together had a combined fair market value of approximately $2,000,000.

39Adrian maintains that Robert began making payments on the Promissory Note in December 2024 and continued doing so until approximately March 14, 2025. With respect to the payments made to Adrian in 2024 and early 2025, Robert denies that these payments were interest payments on the alleged loan. Robert’s evidence is that during this time he continued to support Adrian financially, providing him with intermittent cash transfers ranging between $500 and $2,000, often at his request to help with his personal and property related expenses as he had done in the years prior to 2024.

40Adrian highlights that in or around mid-March 2025, Robert abruptly informed him that he would no longer pay interest on the Promissory Note, nor make the alleged agreed upon monthly payments. Robert also denied that the Discharge Funds were ever a loan, despite what Adrian views are the clear terms of the signed Promissory Note. Adrian maintains that Robert and Michele now deny that any debt is owed to him, contrary to the express terms of the Promissory Note.

CPL – The Bulloch House

41On December 17th 2024, hoping that Adrian could put his feelings for Michele aside, Robert invited Adrian to dinner at a local Keg restaurant and planned to advise him of his intention to marry Michele and to ask him to be his best man at the wedding.

42After Robert shared his plans to marry Michele with Adrian, Adrian became agitated and told Robert that if he married Michele and gave her the Bulloch House that he “would kill her and burn the house down”. Robert contacted Michele and the couple stayed in a hotel that evening due to being too frightened to stay in their home. While Adrian denies making any such threats, Robert has produced receipts confirming the dinner at the Keg restaurant and confirming the hotel stay the evening of the alleged incident.

43During this same time period Adrian learned that Robert had added Michele back on title to the Bulloch House as joint tenant on March 4^th 2025.

44On or about March 31st, 2025, upon their arrival at the Bulloch House, Robert and Michele discovered a letter from Adrian's then litigation counsel, Christopher Belsito, dated March 28, 2025, which had arrived by mail. The letter demanded immediate repayment of the Discharge Funds under the Promissory Note by April 7, 2025.

45When Robert did not immediately repay the full $844,925.00 purported to be owing under the Promissory Note, Adrian commenced the within action on April 15th 2025, and on April 24th, 2025, obtained an ex parte CPL against the Bulloch House. The CPL was registered on the Bulloch Property on April 29th 2025.

46It is against this backdrop that the defendants now bring these motions seeking an order to set aside the ex parte order dated April 24^th 2025 and to discharge the CPL on the Bulloch House. Robert also brings a second motion seeking leave to have issued and register a CPL against the Newman Property which is now solely owned by Adrian given the transfer of ownership which took place in September 2024.

Issues

47The following issues are required to be determined on these motions:

1. Should the ex parte Order of the Associate Judge dated April 24th 2025 obtained by Adrian be set aside for failure to make full and fair disclosure as required pursuant to Rule 39.01(6)?

2. Should the CPL registered by Adrian against the Bulloch House be discharged?

3. Should Robert be granted leave to register a CPL against the Newman House?

Positions of the Parties

48Adrian’s claim to an interest in the Bulloch Property arises from his pleas of constructive trust, unjust enrichment and equitable tracing.

49In 2017, Robert financed the purchase of the Bulloch House by refinancing the mortgage on his Newman House. In particular, in August 2017, Robert took out a BMO mortgage against the Newman House, in the amount of $940,000 to purchase the Bulloch House.

50Adrian maintains that given that Adrian’s funds were used to discharge the mortgage on the Newman Property in September 2024, this results in him having an interest in the Bulloch Property purchased by Robert and Michele in 2017, by way of constructive or resulting trust.

51The defendants argue that the CPL Order obtained on an ex parte basis should be set aside on the grounds that Adrian failed to make full and fair disclosure of all material facts in his affidavit filed in support of the ex parte motion. The defendants further argue that the CPL on the Bulloch Property should be discharged as the purported Promissory Note creates no interest in land. The defendants argue that Adrian is attempting to turn an alleged unpaid debt into an interest in land.

52Robert also seeks leave to register a CPL on the Newman Property now owned by Adrian on the basis that a gratuitous transfer from a parent to adult child presumptively gives rise to a resulting trust which is sufficient to establish a triable issue as to Robert’s interest in the Newman Property.

53Adrian argues that a CPL should not be registered against the Newman Property as Robert’s claimed interest in the Newman House based on resulting trust is clearly rebutted by the evidence. Adrian maintains that Robert expressly confirmed on multiple occasions that the Newman House was intended to be gifted to Adrian, and that the evidence clearly demonstrates that this was his intention at the time of the transfer.

54For the reasons outlined below, I find that the ex parte Order should be set aside and the CPL on the Bulloch Property should be discharged on the basis of material non-disclosure by the plaintiff. Although it is not necessary for me to do so, I would also discharge the CPL on the Bulloch Property on the grounds that the plaintiff does not have a reasonable claim to an interest in the land claimed.

55Finally, for the reasons outlined below, leave shall also be granted to Robert to register a CPL on the Newman Property.

Discussion and Analysis

Issue #1 – Should the ex parte Order of the Associate Judge dated April 24^th 2025 be set aside for failure to make full and fair disclosure?

56On April 24^th 2025 Associate Justice Brott ( the “Associate Judge”) granted the plaintiff’s urgent in-writing ex parte motion wherein the plaintiff sought an order granting leave to issue a CPL on the Bulloch Property. (“CPL Order”)

57In support of the ex parte CPL motion, the plaintiff filed one affidavit, being the affidavit of the plaintiff Robert Adrian George sworn on April 22^nd, 2025 (“Adrian’s Affidavit”). Adrian’s Affidavit consists of 39 paragraphs and is nine pages in length.

58The defendants argue that Adrian’s Affidavit failed to provide all relevant and material facts with the result being that the ex parte Order should be set aside and the CPL discharged.

59Sub-rules 37.14 (1)(a) and 37.14(2) of the Rules of Civil Procedure allow the Court to vary or set aside an order obtained on an ex parte basis. These sub-rules provide as follows:

37.14(1) A party or other person who,

(a) is affected by an order obtained on motion without notice;

may move to set aside or vary the order, by a notice of motion that is served

forthwith after the order comes to the person’s attention and names the first

available hearing date that is at least three days after service of the notice of

motion.

37.14 (2) On a motion under subrule (1), the court may set aside or vary the order on

such terms as are just.

60Pursuant to sub-rule 39.01(6) of the Rules of Civil Procedure, a party who brings a motion without notice bears an obligation to meet a higher standard of full disclosure. In this regard, Rule 39.01(6) provides as follows:

39.01(6) Where a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application.

61Rule 39.01(6) does not require that an order obtained in the absence of full and fair disclosure be set aside; rather the rule provides that it may be set aside solely on that basis. In the context of the immediate motion, even if the court makes a finding of material non-disclosure, the court still maintains the discretion to consider whether the CPL should be continued or discharged under s. 103(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43. (Gong v. Neuhaus Management Ltd., 2021 ONSC 531, at para.51) (“Gong”)

62In Moses v Metro Hardware and Maintenance Inc., 2020 ONSC 6684, at paras. 24 & 25 (“Moses”) Justice Meyers underscored the rationale for imposing “extra burdens” on a party who seeks an order without notice as follows:

To protect the rule of law and the fundamental assurance of a fair civil justice system, Rule 39.01 (6) imposes vital, extra burdens on parties who seek relief before the court without notice to their adversary. They are required to make “full and fair disclosure of all material facts.” The rule provides that the failure to make “full and fair disclosure of all material facts” is itself a basis to set aside an order obtained without notice regardless of the merits of the request for relief.

Rule 39.01 (6) is not just speaking to witnesses’ testimony. It applies to the party who brings a motion without notice.

63In the immediate motion, the court must consider whether, on the ex parte motion, the plaintiff made full and fair disclosure of all material facts.

64Materiality, when examined within the context of the duty to make full and fair disclosure, has been given a broad definition. (Gong, at para. 44) In this context, a material fact has been defined as meaning any fact that “might have had an impact on the original granting of the order”. (Gong at para. 44, Correct Group Inc. v. City of Barrie, 2013 ONSC 4477, at para. 70)

65In Pazner v. Ontario (1990), 74 O.R. (2d) 130 (H.C.J.), Justice Then stated [at p. 134 O.R.]: "Material facts constitute all those facts of which the judge hearing the motion would need to be aware in coming to his or her decision, non-disclosure of which may affect the outcome of the motion." The material facts must be found to be material to the merits of the ex parte motion itself. (As referred to in Correct Group, at para.71)

66In United States of America v. Friedland, [1996] O.J. No. 4399 (Ont. Ct. Gen.Div.) at para. 36, (“Friedland”) Sharpe J. (as he then was) confirmed that in the context of considering if material facts have been omitted, materiality is determined objectively. The test for materiality is therefore an objective one.

67The court in Friedland underscored that “it is no answer to a complaint of non-disclosure that if the relevant matters had been placed before the court, the decision would have been the same”. (Friedland, at para.36)

68When considering the issue of materiality, the court is concerned with ensuring that “all matters which are relevant to the ‘weighing operation’ that the court has to make in deciding whether or not to grant the order” are disclosed. (Friedland, at para. 36) In Friedland, the court also confirmed that “there must be some latitude and the defects complained of must be relevant and material to the discretion to be exercised by the Court”. ( Friedland, at para. 31)

69Given that the court and the party opposite are “at the mercy” of the party seeking the relief without notice, it has been repeatedly confirmed that a party seeking an ex parte order must be “scrupulous” in disclosing the relevant facts to the court. (Sweda Farms Ltd. et al. v. Ontario Egg Producers, 2011 ONSC 1570, at paras. 9-10). The reasoning behind this strict disclosure obligation was first underscored in Friedland and its importance reiterated in Sweda as follows:

The ordinary checks and balances of the adversary system are not operative. The opposite party is deprived of the opportunity to challenge the factual and legal contentions advanced by the moving party in support of the injunction. The situation is rife with the danger that an injustice will be done to the absent party.

For that reason, the law imposes an exceptional duty on the party who seeks ex

parte relief. That party is not entitled to present only its side of the case in the best possible light, as it would if the other side were present. Rather, it is incumbent on the moving party to make a balanced presentation of the facts in law. The moving party must state its own case fairly and must inform the Court of any points of fact or law known to it which favour the other side. The duty of full and frank disclosure is required to mitigate the obvious risk of injustice inherent in any situation where a Judge is asked to grant an order without hearing from the other side. (United States v. Friedland, [1996] O.J. No 4399 at paras 27-28 (Ont. Ct. Gen. Div.), Sweda Farms, at paras. 9 and 10)

70In Moses at para. 26 Justice Meyers also emphasized that “the regular zeal that is perfectly appropriate in face of an equally zealous adversary does not apply when a party chooses to go before a judicial officer without anyone else present to keep his or her zealousness in check”.

71The defendants allege several instances of material non-disclosure by the plaintiff in obtaining the CPL.

72In my view, there are several instances of non-disclosure, three of which are sufficient for the court to conclude that the evidence presented by the plaintiff on the ex parte motion failed to meet the stringent disclosure requirements on an ex parte motion, as established by the case law.

73The first instances of material non-disclosure are found at paragraphs three and 17 of Adrian’s Affidavit, which provide as follows:

3. As will hereinafter be described, I loaned my father, the Defendant, Robert Alfred George ("Robert"), the sum of $844,925.00 so that he could discharge the mortgage registered on 25 Newman Avenue, Richmond Hill, the proceeds of which were used by him to finance the purchase of the Bulloch House. I do verily believe that because my funds were used to discharge the mortgage used to purchase the Bulloch House, this creates an equitable interest therein such that I may ask the Court for authorization to issue a CPL.

4. In order to alleviate the financial pressure on Robert in carrying the mortgage, I offered to use the equity from my Toronto house as a loan so Robert could pay off the BMO mortgage registered on Newman.

74When describing the alleged loan in paragraphs 3 and 17 of his affidavit, Adrian failed to provide the important and contextual evidence that in August 2024, Adrian and Robert jointly retained a lawyer, Mr. Summerville to effect the gratuitous transfer of the Newman Property from Robert to Adrian. Adrian failed to disclose that on the advice of the retained solicitor Mr. Summerville, Adrian used his funds to discharge the mortgage on the Newman Property in order to avoid Adrian having to pay land transfer tax which would be in the range of $25,000.00 according to Mr. Summerville’s notes. Adrian also failed to disclose that the alleged loan was not discussed with Mr. Summerville.

75Robert specifically denies that the Newman mortgage was discharged to alleviate financial pressure on Robert in carrying this mortgage. Indeed, Robert’s evidence is that he at no time experienced difficulties making the mortgage payments on the Newman Property. His evidence is further, that up until January 2020, the mortgage was serviced through weekly automatic withdrawals from a joint account that Robert held with Michele.

76In the context of the financial relationship between Adrian and Robert, Adrian also failed to disclose the extensive financial support provided by Robert to Adrian over a period of many years. This support includes a gift of $50,000 to enable Adrian to buy out his half brother’s interest in his mother’s home following his mother’s death, the gratuitous transfer of Robert’s cottage at 79 Crowe Ct, Marmora, Ontario in 2023, as well as substantial intermittent cash transfers, often in the range of thousands of dollars per transfer to assist Adrian to meet personal and property related expenses.

77Grammatically speaking the first sentence in paragraph three of Adrian’s Affidavit is accurate in terms of indicating that the funds provided by Adrian in the amount of $844,925.00 were used to “discharge the mortgage registered on 25 Newman Avenue, Richmond Hill, the proceeds of which were used by him to finance the purchase of the Bulloch House”.

78However, in my view, Adrian’s Affidavit and in particular the wording of paragraph three appears to have been inadvertently or artfully and intentionally crafted so as to obscure the temporal relationship between the mortgage discharge in 2024 and the purchase of the Bulloch House in 2017. Indeed, the wording in paragraph three can easily be interpreted to suggest that Adrian contributed to the purchase of the Bulloch House which clearly he did not. My findings in this regard, are supported by the wording in the Associate Judge’s Endorsement (“the Endorsement”) which provides as follows:

The plaintiff, Robert Adrian George, loaned to his father, the defendant. Robert Alfred George ("the defendant") the sum of $844,925.00, so that the defendant could discharge the mortgage which he registered on a properly at 25 Newman Avenue, Richmond Hill. The proceeds from that sale were used by the defendant to finance the purchase [sic] the property over which the plaintiff seeks a certificate of pending litigation. The Plaintiff claims an equitable interest in the property. (Emphasis added)

The defendant met the co-defendant Michele Feliciano aka Michele Warton ("Michele" ) online in or about 2015. The defendant was 72 and Michele was 48. She presented herself as a successful businesswoman who owned several properties. The plaintiff and his defendant father came to suspect that Michele was misrepresenting herself.

Section 103(1) of the Courts of Justice Act requires a plausible claim for an interest in land and there is a serious issue to be tried.

The Plaintiff submits he has an interest in the property. The triable issue is whether or not he possesses any equitable remedies therein vis-à-vis the Promissory Note/Loan made to his father, the defendant Robert.

In or about March 4, 2025, with the defendant just having been discharged from hospital, Michele took the defendant to see a lawyer so that the defendant would add Michele to title to the property as a joint tenant. Michele has no financial investment tied up in the property and had been keeping all of its revenue since the time of purchase.

In or around mid-March 2025, the defendant father advised his son, the plaintiff, that he was not going to be paying interest on the Promissory note any longer and further refused to acknowledge that Adrian’s funds were used to discharge the mortgage.

The plaintiff submits that he has made full and frank disclosure in his Affidavit and further submits that the motion has been brought on an ex parte basis as there is a very real concern that if the Defendants are given notice, they may take steps to encumber the property. As well, there is a very real concern that should the plaintiff's father pass away, the property would flow to the co-defendant, Michele by right of survivorship.

79The wording of the Endorsement clearly states that the proceeds of sale were used by Robert to finance the Bulloch Property. In fact, no proceeds of sale were used by Robert to purchase the Bulloch Property. In my view, the wording of the Endorsement confirms that the wording in paragraph 3 of Adrian’s Affidavit was either intentionally or inadvertently misleading and this misleading information was clearly of import to the weighing operation undertaken by the Associate Judge as is evidenced by the wording in the Endorsement.

80Moreover, there was a failure to disclose material facts relating to the circumstances surrounding the transfer of Newman to Adrian which included the two parties jointly retaining a lawyer who recommended the discharge of the mortgage to save Adrian money in terms of the associated land transfer tax which would be payable by Adrian upon the happening of the transfer were the mortgage not to be discharged. Adrian also failed to disclose that the Promissory Note was signed without the involvement of the parties’ jointly retained lawyer who was retained to assist with the transfer of the Newman Property to Adrian.

81The second instance of material non-disclosure can be found at paragraphs 15 and 17 of Adrian’s Affidavit which provide as follows:

15. In and around 2023, my father started to complain that Michele was not providing him with any of the revenue generated from the B&B and he was having to cash in his RRIF's and other investments in order to keep up with the BMO mortgage payments. There should have been ample income from the bed and breakfast to service the mortgage and my suspicions were only confirmed that my father was being taken advantage of and due to his ill-health and appeared helpless to protect himself.

16. In and around this time I sold my house in Toronto so I could move into Newman with my father. Even before this, I had been helping him with the place, paying for renovations and expenses in anticipation of him ultimately gifting me Newman (as part of my inheritance) as we always talked about.

17. In order to alleviate the financial pressure on Robert in carrying the mortgage, I offered to use the equity from my Toronto house as a loan so Robert could pay off the BMO mortgage registered on Newman.

82Adrian’s evidence that Michele was not providing Robert with any of the revenue generated from the bed and breakfast is not supported by the evidence in the record before me. Both Michele and Robert have provided evidence that Michele contributed and continues to contribute significantly to the operation of the bed and breakfast and that the revenues generated from the B&B have been shared equally between Michele and Robert.

83Robert’s evidence is that after the Bulloch Property was purchased in 2017, for more than two years, Robert and Michele contributed equally to all household and property-related expenses. Moreover, in 2018, Michele opened a bed and breakfast at the Bulloch House which soon became a successful business. She worked long hours and reinvested all income into their shared household and expenses, never drawing a salary. It is the evidence of both Robert and Michele that Michele’s financial and operational contributions to the Bulloch House have been continuous and substantial.

84In my view, this evidence outlined above confirms a further instance of the Adrian Affidavit not fully disclosing and/or accurately disclosing “matters which are relevant to the weighing operation that the court has to make in deciding whether or not to grant the order”. (Friedland at para. 36) This is evidenced by the fact that the Associate Judge made specific mention in her Endorsement of the information provided in the Adrian Affidavit that “Michele has no financial investment tied up in the property and had been keeping revenue since the time of purchase”, when the evidence in the record before me suggests otherwise.

85The third instance of material non-disclosure is found in paragraphs 6, 27, 28 and 30 of Adrian’s affidavit which provide as follows:

6. Robert met Michele online in or about 2015. Robert was 72 and Michele was 48. She presented herself as a successful businesswoman who owned several properties. The longer Robert (and myself) got to know her, the more we came to learn she had been misrepresenting herself. I was immediately suspicious of her as her interest in Robert would seem to be misplaced to any common observer. I do verily believe her interest in my father had more to do with money than love or affection.

7. Shortly after their return from the various vacations, in and around February 2025, Robert's health really started failing and he spent almost a month in the Kingston hospital in the dialysis unit. I went to visit him almost every day, but Michele apparently had very little time to visit as she claimed she was busy operating the B&B despite the fact that February is not the busiest season.

8. Robert has to use a colostomy bag, and he is a diabetic with two leaky heart valves leaving its operation at around 10%. Robert undergoes dialysis daily and has trouble with his feet and cannot take more than a few steps without near collapse.

9. On or about March 4, 2025, with Robert fresh out of hospital, Michele appears to have taken him to see a lawyer apparently so that Robert could add her back on title to the Bulloch House as Joint Tenant. As stated previously, Michele has zero financial investment tied up in the Bulloch House and had been keeping all of its revenue for the last however many years. While I do not know for sure, I expect that Robert has since been forced to prepare a new Will as part and parcel of the above transfer.

86Adrian expressly conceded on cross-examination that the statement at paragraph 27 of his April affidavit that he “went to visit [Robert] almost every day” for a month at the Kingston hospital in February 2025 was a “mistake” that was “obviously” wrong. The defendants point out that this “mistake” was still not corrected in Adrian’s September Affidavit filed in response to this motion, which adopts and relies on the facts set out in Adrian’s pleadings and the Motion Record previously filed for which the CPL was granted.

87Despite mentioning some details of Robert’s health issues, which Adrian then asserted left Robert vulnerable to “undue influence and/or coercion” from Michele, Adrian made no mention at all in his Affidavit of Michele becoming Robert’s primary day-to-day caregiver over the last half decade. Indeed, it is noteworthy that Robert’s evidence is that if he did not have Michele to care for him and his medical needs, he would be living in a home.

88Adrian argues that the alleged material facts which were omitted from the Adrian Affidavit are material to the issues raised in the action itself but not to the ex parte CPL motion. I disagree. In my view, the evidence relied upon by the Associate Judge and outlined in her Honour’s endorsement, clearly reflect that the Associate Judge’s decision was based on certain facts provided by Adrian which were not balanced by Robert’s position (omitted facts) on the issue and/or facts which were misleading and/or inaccurate. These omitted material facts include the following:

• Adrian and Robert had jointly retained a lawyer, Mr. Summerville to assist with the transfer of the Newman Property to Adrian.

• Mr. Summerville made the recommendation that the parties should discharge the mortgage on the Newman Property prior to transfer to Adrian in order to save Adrian a significant sum of money relating the payment of land transfer taxes.

• Adrian failed to provide particulars relating to the signing of the Promissory Note and failed to provide the evidence that Mr. Summerville was not asked to review the Promissory Note and Robert was not provided with an opportunity to seek independent legal advice prior to signing the Promissory Note.

• Adrian at no time made any financial contributions to the Bulloch Property.

• Adrian failed to provide evidence that Michele was on title to the Bulloch Property and contributed to the Bulloch Property by contributing to household expenses and returning money generated by the Bed and Breakfast back into the business.

89The material facts in the Affidavit which in my view are false or inaccurate and/or not presented in a balanced manner are the following:

• The suggestion that Robert is of the view that Michele was misrepresenting herself.

• Adrian’s evidence that he went to visit his father at the Kingston Hospital almost every day in February 2025 while Michelle “claimed she was busy operating the B&B”.

• That in 2023, Robert complained to Adrian that Michele was not providing him with any of the revenue generated from the B&B.

• The suggestion that Robert was in ill-health and appeared helpless to protect himself, without mentioning that it was Michele who had been providing all day-to-day care to Robert for several years.

90In reading the Endorsement of the Associate Judge, in my view, it is clear that the Court relied on the incorrect or incomplete evidence in Adrian’s Affidavit in granting the CPL. Even if I accept that the incomplete or incorrect statements were made by mistake or through inadvertence, in my view they were material to the consideration of the motion and were relevant to the court’s weighing operation undertaken in deciding whether or not to grant the order.

91Adrian argues that none of the alleged non-disclosures would have impacted the Associate Judge’s determination of whether Adrian had a triable interest in the Bulloch Property. I do not agree. In any event, as stated in Friedland, that was a decision for the court to make, and not Adrian, and in my view, the material presented by Adrian deprived the court of the opportunity to make its decision based on full and fair disclosure of all material facts. (Friedland, paras. 126 and 127)

92I am therefore satisfied that this is sufficient to find that the ex parte Order should be set aside and the CPL discharged.

Issue #2 – Should the CPL registered against the Bulloch House be discharged?

93A CPL “can be maintained or, perhaps reissued”, even if the order pursuant to which it was issued is set aside. (Moses at para. 72). In this regard, even in the face of a finding of a material non-disclosure, the court “has a continuing discretion to act in the interests of justice on the totality of the evidence” to consider whether a CPL should be discharged pursuant to s.103(6) of the Courts of Justice Act. (Moses, at para.72, Gong at para.51, Conti v. Duca, 2023 ONSC 6626)

Triable Issue

94I have concluded that the Order granting leave to issue the CPL should be set aside and that the CPL should be discharged on the basis of material non-disclosure. However, I also find that the defendants have met their onus to demonstrate that there is no triable issue with respect to Adrian’s claim to an interest in the Bulloch Property. (Conti v. Duca at paras. 36-39)

95Rule 42.01(1) of the Rules of Civil Procedure provides as follows:

A certificate of pending litigation (Form 42A) under section 103 of the Courts of

Justice Act may be issued by a registrar only under an order of the court.

96Rule 42.02(1) further provides that:

An order discharging a certificate of pending litigation under subsection 103(6) of the Courts of Justice Act may be obtained on motion to the court.

97The court’s jurisdiction to grant leave to issue a CPL is set out in section 103(1) of the Courts of Justice Act (“CJA”). With respect to the discharge of a CPL, s. 103(6) of the CJA provides as follows:

“(6) The court may make an order discharging a certificate,

(a) where the party at whose instance it was issued,

(i) claims a sum of money in place of or as an alternative to the interest in the land claimed,

(ii) does not have a reasonable claim to the interest in the land claimed, or

(iii) does not prosecute the proceeding with reasonable diligence;

(b) where the interests of the party at whose instance it was issued can be adequately protected by another form of security; or

(c) on any other ground that is considered just,

and the court may, in making the order, impose such terms as to the giving of security or otherwise as the court considers just.”

98Master Glustein (as he then was) summarized the factors which the court must consider on a motion to grant or discharge a CPL in Perruzza v. Spatone, 2010 ONSC 841 at para. 20:

(i)The test on a motion for leave to issue a CPL made on notice to the defendants is the same as the test on a motion to discharge a CPL (Homebuilder Inc. v. Man-Sonic Industries Inc., 1987 CarswellOnt 499 (S.C. - Mast.) ("Homebuilder") at para. 1);

(ii)The threshold in respect of the "interest in land" issue in a motion respecting a CPL (as that factor is set out at section 103(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43) is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed (1152939 Ontario Ltd. v. 2055835 Ontario Ltd., 2007 CarswellOnt 756 (S.C.J.), as per van Rensburg J., citing Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen. Div. - Comm. List) at para. 62);

(iii)The onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL has "a reasonable claim to the interest in the land claimed" (G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 CarswellOnt 219 (C.A.) at para. 20);

(iv)Factors the court can consider on a motion to discharge a CPL include (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (S.C. - Mast.) at paras. 10-18); and

(v)The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted or vacated (931473 Ontario Ltd. v. Coldwell Banker Canada Inc., 1991 CarswellOnt 460 (Gen. Div.); Clock Investments Ltd. v. Hardwood Estates Ltd., 1977 CarswellOnt 1026 (Div. Ct.) at para. 9).”

99In HarbourEdge Mortgage Investment Corporation v. Community Trust Company, 2016 ONSC 448 at paras. 45 and 46, the Court in granting a CPL held that the threshold in respect of the "interest in land" issue on a motion respecting a CPL is whether there is a triable issue to such interest (whether a reasonable claim to such interest has been raised); not whether the plaintiff will ultimately likely succeed at trial.

100The Court in HarbourEdge also underscored that a court does not assess the credibility of deponents or decide disputed issues of fact at the juncture of an interlocutory motion for a CPL. (HarbourEdge at para. 45)

101If the triable issue as to a reasonable interest in land threshold is met, the court must then consider whether it is just and equitable, based on all the circumstances, to exercise its discretion to grant a CPL by considering and balancing the equities, including the so-called Dhunna factors. (Sun Rise Elephant Property Investment Corporation v. Luu, 2018 ONSC 5247 at para. 12)

Adrian’s Position

102Adrian argues that the CPL on the Bulloch Property should not be discharged. Adrian maintains that he has demonstrated that there is a triable issue as to his claimed interest in the Bulloch Property.

103By way of statement of claim issued on April 15^th 2025, Adrian claims as against the defendants Robert and Michele for the following:

a) Damages in the amount of $1,000,000.00 for failure to repay the On Demand Promissory Note;

b) In the alternative, damages in the amount of $844,925.00 on the basis of unjust enrichment;

c) A Declaration that the plaintiff has an interest in the Bulloch Property;

d) Leave to register a CPL on title to the Bulloch Property;

e) A declaration that the defendants hold title to the Property in trust for the plaintiff by way of resulting trust or constructive trust.

104Adrian also seeks an accounting and tracing remedy as well as an injunction restraining the defendants from encumbering or dealing with the Bulloch Property.

105Adrian argues that he has raised a triable issue with respect to a reasonable claim to an interest in the Bulloch Property on the basis of a resulting and/or constructive trust and a tracing remedy. He relies inter alia, upon the following evidence and arguments in support of his position in this regard:

• Robert repeatedly expressed to Adrian that he intended to gift him the Newman House, free and clear of any mortgages or encumbrances. To that end, in May 2024, solicitor Wayne Summerville was jointly retained to effect a transfer of the Newman House from father to son for natural love and affection.

• At the time of transfer, the Newman House was subject to a mortgage in the amount of $844,925.00. The proceeds of that mortgage had been used to purchase the Bulloch House in 2017. To avoid Adrian having to pay land transfer tax, Adrian alleges that the parties agreed that Adrian would discharge the Newman House mortgage using his own funds, and that Robert would repay those funds at a later time, as a loan for which Robert was considering various repayment options.

• Adrian alleges that after reviewing repayment options, the parties agreed to and executed a promissory note in the exact amount of the discharge funds paid by Adrian (the "Promissory Note"). Robert failed to honour the Promissory Note.

• As a result, Adrian argues that Robert has been unjustly enriched, giving Adrian an equitable interest in the Bulloch House, since Adrian paid the discharge funds used to finance its purchase. Adrian argues that he confirmed and acknowledged this interest in his “testimony”, and Associate Justice Brott agreed that a CPL should be registered to protect Adrian's interest shortly after the commencement of this action.

106In the immediate case, the court must first determine if there is a triable issue with respect to Adrian’s claim to an interest in the Bulloch Property which would support the granting of the CPL (Saggi v. Grillone 2020 ONSC 4140 at paras. 31, 55 and 67; Zhao v. 8657181, 2020 ONSC 2864 at paras. 9 and 11)

107When determining whether or not there is such a triable issue, the evidentiary bar is low. (Karkoulis v. Karkoulis, 2023 ONSC 499 at para. 19) The party opposing the CPL bears the onus to show that there is no triable issue. (Boal at para. 64)

108Adrian seeks a declaration that the defendants hold title to the Bulloch Property in trust for Adrian by way of resulting trust or constructive trust. Therefore, in the immediate case, the threshold requirement of there being a triable issue as to a reasonable interest in land is a “a gateway requirement for a CPL” which has been described as whether “the remedy sought by the plaintiff, including a constructive or resulting trust and tracing remedies, are possible remedies at trial”. (Sun Rise Elephant Property Investment Corporation v. Luu, 2018 ONSC 5247 at paras. 10-12, Conti v. Duca 2023 ONSC 6626 at para.37).

109Relying on Li v. Li 2020 ONSC 7315, Adrian argues that a claim for a constructive trust over property may give rise to an interest in land. In Li, the Court confirmed that “a claim for a constructive trust is a claim for ownership which may give rise to a proprietary interest in land in accordance with s.103 of the Courts of Justice Act and will support a claim for a CPL”. (Li at para. 21). The Court in Li confirmed that a constructive trust claim for unjust enrichment is comprised of three parts:

a ) an enrichment of the defendant

b) a corresponding deprivation to the plaintiff;

c) an absence of juristic reason for the enrichment. (Li at para. 26)

110In oral submissions, counsel for Adrian acknowledged the difficulty in Adrian establishing an enrichment of Robert given that with respect to the transaction in issue which was the transfer of the Newman Property to Adrian, Robert was the one who ended up with less than what he started with.

111As confirmed by the Supreme Court of Canada in Moore v. Sweet, “the transaction that enriched the defendant must have caused the plaintiff’s impoverishment such that the defendant can be said to have been enriched at the plaintiff’s expense. (Moore v. Sweet, 2018 SCC 52 at para. 43) Prior to the transaction, Robert held title to the Newman Property which held some equity. After the transfer to Adrian, it was Adrian who held title to the Newman Property which at the time of transfer was unencumbered. Counsel for Adrian had difficulty pointing the court to evidence which would support the conclusion that the transfer of the Newman Property to Adrian and the signing of the alleged Promissory Note resulted in Robert becoming richer in circumstances where Adrian became poorer. (Moore at para. 44)

112While the exact value of the Newman Property is not confirmed in the record before me, it does not appear to be in dispute that at the time of the transfer, the value of the Newman Property exceeded the amount which Adrian paid to discharge the mortgage on the Newman Property. Mr. Summerville’s records suggested a market value of the Newman Property in June 2024 as being $1.4 million with the property taxes owing upon transfer being approximately $25,000.00. Adrian’s evidence is that the value of the Newman Property was in the range of $1.1 million. A real estate agent who communicated with Michele via email suggested an estimated value for the Newman Property of $1.6 million to $1.7 million. This estimate appears to be based solely on information provided to the agent by phone.

113Recognizing the difficulties in establishing the required elements of the cause of action in unjust enrichment vis-à-vis Robert, in oral submissions, counsel for Adrian then suggested that it was Michele who was unjustly enriched as Adrian’s funds were used to discharge the mortgage on the Newman house in 2024. The purchase funds for the Bulloch House were provided by Robert in 2017 by re-financing the mortgage against the Newman House. Adrian therefore argues that Michele was unjustly enriched as she obtained the Bulloch house at no cost. Adrian argues that the corresponding deprivation is that he is owed repayment of the funds used in 2024 to discharge the mortgage on the Newman Property and there is no juristic reason for Michele to receive this enrichment.

114The defendants argue that it cannot be said that a triable issue has been raised as to Adrian’s interest in the Bulloch Property.

115Adrian disagrees and argues that his contribution to the discharge funds in 2024 relating to a mortgage secured in 2017, which was obtained to purchase the Bulloch Property, “when combined with the fact that he is not on title” to Bulloch, “gives rise to a presumption of resulting trust in his favour”. In support of this argument, Adrian relies on Cambone v. Okoakih, 2016 ONSC 792, paras. 172-173 where the court stated the following:

Where the money to purchase an asset is furnished by one person, but the asset is placed in the name of another, the doctrines of resulting trust and constructive trust come into play.

Resulting trusts can arise in a number of ways, but of relevance here is where an asset is purchased by one person and placed in the name of another. In that situation, it is presumed that the recipient holds his or her interest in trust for the person who purchased the asset and provided the funds for it, unless it was intended that there be a gift. The onus is on the recipient to prove the intention was to make a gift. Where there is more than one contributor to the purchase price, it is presumed that the trust is in favour of all of them. See Waters' Law of Trusts in Canada, (4th Ed ., Carswell, 2012), chapter 10, pp. 394-475.

116In my view, this decision does not assist with Adrian’s argument. There is no dispute between the parties that when the Bulloch house was purchased in 2017, Adrian did not contribute any funds towards its purchase. There is no evidence in the record before me that Adrian’s money was used to purchase an asset (the Bulloch Property), which asset was then placed in the name of Robert. Indeed, there is no evidence that Adrian has contributed any funds or to any expenses relating to the Bulloch Property.

117Adrian’s claim to an interest in the Bulloch Property arises from his pleas of constructive trust, unjust enrichment and equitable tracing. An examination of the relevant chronology of events is of assistance in terms of considering Adrian’s position on this issue:

(a) Robert and Michele acquired the Bulloch House together in 2017 - Adrian asserts no interest in the Bulloch house at that time.

(b) Michele transferred her interest in the Bulloch House to Robert in 2020.

(c) Adrian advanced $844,925.00 to Robert to discharge the Newman Property's mortgage on June 18, 2024.

(d) the Newman Property's mortgage was discharged, as intended, and a discharge of charge was registered on June 27, 2024.

(e) Robert signed the Purported Note on September 8, 2024.

(f) Robert's transfer of the Newman Property to Adrian was completed on September 13, 2024.

(g) Robert added Michele back on title to the Bulloch House as a joint tenant on March 4, 2025, consistent with their longstanding shared intention that Michele should continue to reside at the Bulloch House and operate the B&B in the event of Robert's passing.

118The timeline outlined above confirms that at the time that the Purported Note was signed, Robert still owned the Newman Property. His ownership remained in place until the transfer of the Newman Property was completed. Robert could have satisfied the Purported Note by selling the Newman Property had the transfer to Adrian, for some unforeseen reason, not been completed. Indeed, Robert has provided evidence that this is precisely what he says he believed was the purpose of the Purported Note.

119There is no dispute that Adrian advanced $844,925.00 to Robert to discharge the Newman Property's mortgage on June 18, 2024. However, in my view, it is unclear how Adrian asserts that this created an interest in the Bulloch House at that time rather than, at best, an interest in the Newman Property.

120In my view, Adrian's asserted proprietary interest in the Bulloch House is both:

i) prospective and expansive, essentially claiming a resulting trust over all of Robert's assets in June 2025, not just the funds advanced to discharge the Newman Property mortgage; and

ii) retroactive, in that Adrian's advance of funds to Robert in 2024 must somehow create an interest in a property Robert and Michele acquired in 2017, to which Adrian acknowledges he made no contributions.

121To support a constructive trust claim on the basis of unjust enrichment, there must be a “sufficient” or “close” connection between the property over which the constructive trust is sought and the misappropriated funds acquired by the defendant. (Li at para. 26) In the immediate case, Michele was not a party to the loan agreement such that it cannot be said that she misappropriated any funds.

122Adrian draws the court’s attention to the decisions of Aghdasi v. Asiyaban 2024 ONSC 3472, at para. 30 and Chechui v. Nieman, 2017 ONCA 669 at paras. 59-66, in support of his argument that contributions to the acquisition of real property including the paying off of mortgages may give rise to a resulting trust. However, in my view these decisions are distinguishable.

123In Chechui, the Ontario Court of Appeal considered an issue with respect to whether or not a resulting trust arose in relation to the appellant’s (Ian’s) repayment of the respondent’s (Victoria’s) share of the couple’s joint debt under a letter of credit relating to the purchase of a Brookdale Property. The Court of Appeal set aside the application judge’s findings on this issue and held that a resulting trust arose in relation to Ian’s repayment of Victoria’s share of the parties' joint debt under the line of credit. The Court determined that Ian’s repayment of Victoria’s share of the couple’s debt under the line of credit was gratuitous and directly linked to the purchase of the Brookdale Property. Both Ian and Victoria held title to the Brookdale Property following purchase of the Property and at the time of the debt repayment. The Court of Appeal found that “the repayment of the line of credit was integrally bound up with the purchase of the Brookdale property”. In contrast, in the immediate case, Adrian has never held title to the Bulloch Property. Adrian did not contribute to the purchase of Bulloch in 2017 and made no contributions of any kind to the Bulloch Property.

124Similarly, in Aghdasi, the Court found that the plaintiff was entitled to a 50% interest in the Deerfield Property by way of purchase money resulting trust as the evidence before the court confirmed that the plaintiff contributed 50% of the funds and took risk with respect to the Deerfield Property.

125In the case of the Bulloch Property, there is no evidence that Adrian contributed funds to the purchase price of Bulloch or “took any risk” with respect to this Property.

126In my view therefore, both of these decisions are distinguishable and do not provide the proffered support to Adrian’s position on this issue.

127During his cross-examination, Adrian made the following admissions which in my view are further supportive of the defendants’ position that Adrian does not have a claim to an interest in the Bulloch Property.

• None of Adrian’s money went into the Bulloch House.

• The Promissory Note is silent on the Bulloch House.

• The only reason Adrian registered a CPL against the Bulloch House was because his former lawyer told him to and because it was the only asset of his father’s sufficient to satisfy the indebtedness under the Promissory Note.

128Adrian has not provided the court with any authority supporting his position that in advancing funds to discharge the mortgage on the Newman Property, this can give rise to a constructive or resulting trust with respect to the Bulloch Property.

129In 306440 Ontario Ltd. v. 782127 Ontario Ltd. (Alrange Container Services), the Ontario Court of Appeal confirmed that “the very nature of the constructive trusts remedy demands a close link between the property over which the constructive trust is sought and the improper benefit bestowed on the defendant or the corresponding detriment suffered by the plaintiff. (306440 Ontario Ltd. v. 782127 Ontario Ltd. (Alrange Container Services), 2014 ONCA 548 at para. 26)

130In this same decision, the Court of Appeal also confirmed that “the constructive trust attaches to specific assets of the defendant that represent the enrichment; it is not a charge on the defendant’s general assets for the amount of the plaintiff’s claim”. (306440 Ontario Ltd. at para. 30)

131In this case, the only asserted connection between the plaintiff’s funds used in 2024 to discharge the mortgage on the Newman Property and the Bulloch Property, relates to the fact that Robert obtained a mortgage on his Newman Property in 2017, to finance the purchase of the Bulloch Property in 2017.

132None of the authorities cited by the plaintiff have grounded triable constructive trust claims in similar circumstances as are present in the immediate case where there is either no link or a very indirect connection between the plaintiff’s alleged loan funds and the Bulloch Property over which the trust is asserted. Some basis for that connection is essential to ground a claim for constructive trust and equitable tracing. (206440 Ontario Ltd. at para. 26, Saggi v. Grillone, at para. 65 and Boal v. International Capital Management Inc., 2018 ONSC 2275 at paras.93-94)

133In my view, there is no link or an insufficient link or causal connection between Adrian’s advancement of funds to discharge the mortgage on the Newman Property and the acquisition, preservation, maintenance or improvement of the Bulloch Property. In this regard, on the record before me, I am unable to conclude that Adrian’s advancement of funds to discharge the Newman mortgage in 2024, is sufficient to create a triable claim of an interest in land to justify the continuance of a CPL on the Bulloch Property. (Saggi, at para. 65)

134The Bulloch Property does not stand directly or indirectly as security for the plaintiff’s alleged loan. Michele was not a party to the alleged loan agreement. No mortgage over the Bulloch Property was requested as security for the plaintiff’s alleged loan relating to the Newman Property.

135Adrian’s claim to an interest in land arises from his pleas of constructive trust, resulting trust, unjust enrichment and equitable tracing. Based on the record before me, I am satisfied that there is no triable issue with respect to a reasonable claim for a resulting trust or constructive trust based on unjust enrichment and the availability of such remedies at trial.

136For the reasons outlined above, in my view, there is no plausible interest in land that Adrian can assert with respect to the Bulloch Property. The CPL should be discharged.

Equities

137Even if I were to find that there was a triable issue as to a reasonable interest in the Bulloch Property, I would still grant the defendants’ motion to discharge the CPL as in my view, exercising the court’s discretion, this is just and equitable based on all of the circumstances. This requires a consideration of the non-exhaustive list of factors outlined in 572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 at paras. 10-18.

138With respect to the issue of whether or not the land is unique, as Lax J. recognized in John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd., affirmed 2003 52131 (ON CA), there is both a subjective and an objective aspect to uniqueness. In this regard, the Court stated the following at paras. 59-60:

While it is difficult to be precise about this, it strikes me that normally, the subjective aspect will be less significant in commercial transactions and more significant in residential purchases, unless the motivation in the latter case is principally to earn profit. In terms of the subjective aspect, the court should examine this from the point of view of the plaintiff at the time of contracting. In some cases, there may be a single feature of the property that is significant, but where there are a number of factors, the property should be viewed as a whole. The court will determine objectively whether the plaintiff has demonstrated that the property has characteristics that make an award of damages inadequate for that particular plaintiff. Obviously, investment properties are candidates for damages and not specific performance.

It is important to keep in mind that uniqueness does not mean singularity. It means that the property has a quality (or qualities) that makes it especially suitable for the proposed use that cannot be reasonably duplicated elsewhere. To put this another way, the plaintiff must show that the property has distinctive features that make an award of damages inadequate. The plaintiff need not show that the property is incomparable.

139While the Bulloch Property is unique, it is not unique to Adrian. Indeed, during his cross-examination Adrian admitted that the Bulloch Property is not unique to him. In particular, Adrian confirmed the following with respect to the Bulloch Property, referred to as “Gananoque” during his cross-examination:

A. Enforcing the agreement we had against the -- the promissory note. Not against Gananoque. I don't care about Gananoque. I care about the promissory note. That's what this whole case is about, all right? So, the Gananoque, I don't know -- sure why we keep bringing it up, I don't care about it whatsoever, but it seems that that's the one asset that can satisfy the promissory note and that's why it's involved. That's the only reason it's -- it's involved.

1139. Q. Right. Because the Gananoque property, it's not unique to you, right?

A. No. The promissory note is unique to me.

1140. Q. Right. (Transcript- Cross-examination of Robert Adrian George, pages 233, 234)

140The intent of the parties in acquiring the land is not fully discernable as Adrian did not acquire the Bulloch Property.

141The plaintiff has title to the Newman House and can pursue his claim for damages which are easily quantifiable.

142Adrian argues that if the CPL is discharged, there is the genuine concern that the defendants could sell the Bulloch House and dissipate the assets/equity. He also raises as concerns that Robert's declining health, combined with Michele's increasing involvement in his affairs, creates additional uncertainty regarding future dealings with the Bulloch House.

143The defendants argue that if the CPL is allowed to remain, they will not be able to use their property freely. In this regard the defendants will be prevented from using their property for financing other ventures, expansion or renovations or even selling, should they wish to move, as long as the CPL remains in place.

144Adrian has advanced a claim for damages which is his main claim. Significantly, I do not view the plaintiff’s damages’ claim as “a technical, fallback alternative plea”. Indeed, in my view, in the immediate case, the claim for damages “is the main event”. (Moses v. Metro Hardware and Maintenance Inc., 2020 ONSC 6684 at para.75)

145The actual relief underlying Adrian’s request for a CPL is security for his damages claim. As confirmed in Mr. Greek Meats Inc. v Mr. Zagros Management Inc. 2023 ONSC 791 at para.12, a CPL is not to be used as means to secure a claim for damages:

As the court noted in Tribecca Development Corporation v Danieli 2015 ONSC 7638, “a CPL is intended to protect an interest in land where other remedies would be ineffective. It is not intended to be an instrument to secure a claim for damages”. This sentiment was echoed by Doi, J., who stated in Bains v Khatri, 2019 ONSC 1401 that “Should the moving Plaintiffs have concerns about the dissipation of assets, it is open for them to seek relief by way of a Mareva order. A certificate of pending litigation is intended to protect an interest in land in situations where other remedies would be ineffective.

146Damages are also easily calculated, being the amount of the alleged loan and interest as outlined in the Promissory Note. The presence of absence of a willing purchaser is of no bearing here as there is no evidence of any intention on the part of the parties to this action to sell the Bulloch Property at this time.

147Having weighed and considered all relevant factors as outlined above, I conclude that the equities favour, and that it is just and equitable to discharge the CPL on the Bulloch Property.

148Based on the evidence in the record before me, I am of the view that no triable issue has been raised of a reasonable claim by the plaintiff to an interest in the Bulloch Property. Even if a triable issue had been raised with respect to the plaintiff’s interest in the Bulloch Property, I still would have found that the equities favour discharging the CPL. I have reached this conclusion by examining the whole of the evidence as it stands after cross-examinations and, without deciding disputed issues of fact and credibility.

149My decision should not be considered a criticism of the Associate Judge who granted the CPL on an ex parte basis and who did not have the benefit of the extensive evidentiary record and of hearing the submissions of counsel which this Court was able to consider on this motion.

150In the further exercise of my discretion under s.103(6)(a) and (c) of the Courts of Justice Act, I am granting the defendants’ motion for the discharge of the CPL as against the Bulloch Property.

Issue #3 - Should Robert be granted leave to register a CPL against the Newman House?

151Robert seeks leave pursuant to section 103 of the Courts of Justice Act, R.S.O. 1990, c. C43, as amended and Rule 42.01 of the Rules of Civil Procedure, to have issued and register a Certificate of Pending Litigation with respect to the property municipally known as 25 Newman Avenue, Richmond Hill, Ontario (the "Newman Property").

152The test on a motion for leave to issue a CPL made on notice is the same test applied on a motion to discharge one, and the "court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted." (Perruzza v. Spatone, 2010 ONSC 841 at para. 20)

153The governing threshold is whether there is a triable issue as to an "interest in land" not whether the claimant is likely to succeed at trial. (Perruzza at para. 20).

154Once this threshold has been met, in assessing whether a CPL should be granted, the Court may then consider a range of factors, including: (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security. (Perruzza at para. 20, referring to 572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 at para. 11)

155Adrian submits that a Certificate of Pending Litigation (CPL) should not be registered against the Newman Property. He argues that Robert's claimed interest in the Newman Property, based on a resulting trust, is clearly rebutted by the evidence. Adrian’s evidence is that Robert expressly confirmed on multiple occasions that the Newman House was intended to be gifted to Adrian, and that the evidence clearly demonstrates that this was his intention at the time of the transfer. Adrian also relies on the evidence of his aunt, Gail Burns. Her evidence is that Robert consistently told her that he intended to gift the Newman House to Adrian.

156Robert argues that he has a clear triable issue regarding his "interest in land" namely that the gratuitous transfer of the Newman House gave rise to a resulting trust in his favour. Robert argues that the transfer of the Newman House to Adrian was motivated by donative intent which was vitiated, however, by Adrian’s preparation of the Promissory note and later demand for payment. Robert argues that after the Newman Property was transferred to Adrian, Adrian subsequently induced Robert, while elderly, vulnerable and in declining health to execute the Promissory Note. Robert alleges that Adrian’s conduct was opportunistic and inconsistent with a bona fide gift and vitiates any donative intent. Robert argues, that as a result, Adrian is unable to rebut the presumption of resulting trust in favour of Robert.

157Robert maintains that when he signed the Promissory Note, he was subject to undue influence by Adrian. In this regard, Robert argues that his free will was overborne given their familial relationship, his advanced age, declining health, and Adrian’s dominant and persistent repeated demands for property transfers.

158Robert highlights that while the transfer of Newman was completed with the assistance of a lawyer Mr. Summerville who was jointly retained by the parties, there is no evidence that the issue of a Promissory Note was ever discussed with Mr. Summerville who was Robert’s longstanding lawyer. Moreover, Robert highlights that the video which was surreptitiously taken by Adrian showing Robert signing the Promissory Note, reflects that Adrian did not explain the terms or the purpose of the Promissory Note, which Robert maintains that he was induced to sign without legal advice and without the presence of his lawyer Mr. Summerville.

159In this action, Robert has advanced a counterclaim seeking a declaration that Adrian holds the Newman House “on a resulting trust in favour of Robert, arising from the gratuitous transfer of legal title”. Robert also seeks leave pursuant to section 103 of the Courts of Justice Act, and Rule 42.01 of the Rules of Civil Procedure to issue a certificate of pending litigation with respect to the Newman House. The Property is described sufficiently in the counterclaim to allow for registration. (Rule 42.01(2) of the Rules of Civil Procedure)

160Case law is clear that a claim for a constructive trust or resulting trust over property may give rise to an interest in land. (Sun Rise Elephant Property Investment Corporation v. Luu, 2018 ONSC 5247 at paras. 10-12, First Leaside Wealth Management Inc. v. Phillips 2012 ONSC 5443 at paragraph 36)

161In Pecore v. Pecore, 2007 SCC 17, the Supreme Court of Canada described a resulting trust as follows:

A resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner: see D. W. M. Waters, M. R. Gillen and L. D. Smith, eds., Waters’ Law of Trusts in Canada (3rd ed. 2005), at p. 362. While the trustee almost always has the legal title, in exceptional circumstances it is also possible that the trustee has equitable title: see Waters’ Law of Trusts, at p. 365, noting the case of Carter v. Carter (1969), 70 W.W.R. 237 (B.C.S.C.) (Pecore at para.20)

162In Pecore, the Supreme Court of Canada further described the presumption of a resulting trust and the presumption of advancement as follows:

The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.

The presumption of resulting trust is the general rule for gratuitous transfers. However, depending on the nature of the relationship between the transferor and transferee, the presumption of a resulting trust will not arise and there will be a presumption of advancement instead: see Waters’ Law of Trusts, at p. 378. If the presumption of advancement applies, it will fall on the party challenging the transfer to rebut the presumption of a gift. (Pecore at paras. 24, 27)

163In determining the intention of the parties, the Court is entitled to consider reliable evidence arising after the transfer where it sheds light on what the transferor actually intended at the time of conveyance. (Pecore at para. 59, Mroz v. Mroz, 2015 ONCA 171 at para. 73)

164Robert argues that despite the structure and purpose of the transfer, and the parties mutual understanding that it was a gift, Adrian subsequently induced Robert, while elderly, vulnerable and in declining health, to execute the Promissory Note. Robert alleges that Adrian’s conduct was opportunistic and inconsistent with a bona fide gift, and vitiates any donative intent. Robert argues that Adrian is unable to rebut the presumption of resulting trust in favour of Robert.

165Adrian argues that the law is clear that a resulting trust arises only when the transferor's intention to gift or advance property is absent. Adrian maintains that Robert's repeated assurances and voluntary transfer demonstrate that there was no such intention to create a resulting trust in his favour. He further urges this court to find that there is no evidence of coercion, fraud, or undue influence by Adrian that would support a claim to a resulting trust over the Newman House. Adrian argues that at the time of the transfer, Robert clearly intended to gift the Newman House to Adrian.

166In support of his position on this motion, Adrian referred this court to the decisions of Falsetto v. Falsetto 2022 ONSC 3701, upheld, ONCA 2023 469, and Fichera v. McAllister 2021 ONSC 2685.

167In Falsetto, over a number of years, Salvatore Falsetto (“Salvatore”) transferred substantial sums of money and some properties to his son, Salvatore Fillipo Falsetto (“Sam”). Sam effected some of the transfers as Salvatore’s attorney. Sam used the monies to acquire and develop properties in and around Ottawa.

168Several years after the transfers, Salvatore sued Sam and several of his companies. Salvatore maintained that he transferred the monies to Sam such that Sam would acquire properties in trust for him and that Sam had wrongfully misappropriated the monies. Salvatore also alleged that Sam breached his fiduciary duties as Salvatore’s power of attorney. Salvatore sought damages of over $12 million for breach of fiduciary duty, breach of trust, and unjust enrichment, and orders for an accounting, equitable tracing, and disgorgement of profits.

169Sam defended the action on the basis that the transferred assets, with one exception, were gifts to him. Sam’s evidence was that, before each transfer, he confirmed with Salvatore that Salvatore intended the transfers to be gifts to him such that he buy properties, renovate them, and sell them. The sole exceptions were the transfers of funds from Salvatore’s lines of credit, which Sam acknowledged had been loans and which Sam repaid with interest.

170The main issue at trial was whether the transfers of money and property from Salvatore to Sam were gifts or loans. The court also considered other issues including whether Sam exercised undue influence over Salvatore and whether Sam was unjustly enriched by the transfer of funds and property from Salvatore.

171After hearing from 17 witnesses, over six weeks of trial, the trial judge found that the transfers were a series of gifts from Salvatore to Sam. In making these findings, the trial judge accepted Sam’s evidence and that of eight independent witnesses, all of whom testified that Salvatore had told them he intended to, or had made, the gifts to Sam.

172In Fichera, the court was tasked with deciding a motion to determine how the proceeds of sale of a residence (“the Property”) should be disbursed. In 2017, a mother, Gaetana, instructed her solicitor to transfer the Property to her son Salvatore for consideration of $1. After the transfer, Salvatore died intestate. The defendants in the action were Salvatore’s children and the estate trustee of Salvatore’s estate.

173The issue before the court on the motion was how the proceeds of the sale of the Property should be disbursed. Gaetana requested that the proceeds be transferred to her, to subsidize her ongoing care needs. Gaetana maintained that the transfer of the Property to Salvatore was not a valid inter vivos gift. In support of her position, Gaetana relied on the doctrines of resulting trust and unjust enrichment. Similar to Robert’s position in this action, Gaetana also asserted that even if the transfer was a valid inter vivos gift, the transfer was unconscionably procured by Salvatore.

174The defendants asserted that the transfer of the Property was a valid inter vivos gift from Gaetana to her son, Salvatore. They argued that the presumption of resulting trust was rebutted because the evidentiary record demonstrated that Gaetana intended to gift the Property to Salvatore. The defendants also argued that the doctrine of unconscionable procurement had no application to the case.

175After hearing the evidence of many witnesses and weighing the evidence, the motions’ judge determined that Gaetana intended to gift the Property to Salvatore in July 2017 and that Salvatore did not unconscionably procure the transfer of the Property.

176These cases which Adrian relies upon in support of his position on this motion are instructive in terms of illustrating the type of evidence that the court requires to rebut the presumption of resulting trust. However, in my view these cases do not assist Adrian on this CPL motion where the court is required to determine if Robert has raised a triable issue with respect to an interest in the Newman Property.

177Indeed, Falsetto is also instructive in terms of confirming the significant amount of evidence that must be weighed and the many credibility issues to be decided by a judge who is tasked with deciding a case where the presumption of resulting trust must be considered. In the context of this CPL motion, the court is specifically directed not to assess credibility or decide disputed issues of fact and credibility. (Karkoulis at para. 19)

178The presumption of resulting trust is the general rule for gratuitous transfers and the onus is placed on the transferee to demonstrate that a gift was intended. (Pecore) When considering the presumption of resulting trust, the Supreme Court of Canada in Pecore, described the task of a trial judge at para. 44 as follows:

As in other civil cases, regardless of the legal burden, both sides to the dispute will normally bring evidence to support their position. The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention. Thus, as discussed by Sopinka et al. in The Law of Evidence in Canada, at p. 116, the presumption will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities.

179In the immediate case, it is not the court’s role on this motion to determine Robert’s actual intention in transferring the Newman Property to Adrian. Rather the court’s role is simply to determine if it has been established that an interest in land is in question, if there is a triable issue as to whether Robert has a reasonable claim to that interest in land, and if so, whether the equities favour granting a CPL on the Newman Property.

180The Supreme Court of Canada has established that: (1) the presumption of resulting trust applies to gratuitous transfers of property from a parent to an adult child; and (2) the trial judge must begin his or her inquiry with that presumption and then weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor's actual intention at the time of transfer. (Pecore v. Pecore, 2007 SCC 17, Mroz v. Mroz, 2015 ONCA 171 at para. 53, Sawdon Estate v. Sawdon, 2014 ONCA 101 at paras. 56-57).

181In Karkoulis, at para. 24, the Court confirmed that where a “reasonable claim to an interest in land is put forward in an action for a proprietary remedy, including a constructive or a resulting trust a CPL may issue: Avan v. Benarroch, 2017 ONSC 4729 para. 26 ”.

182In the immediate case, the gratuitous transfer from a parent, Robert, to an adult child, Adrian, presumptively gives rise to a resulting trust and thus raises a triable claim to an interest in the Newman Property. Robert has alleged that the circumstances surrounding the transfer of the Newman Property and the signing of the Promissory Note raise issues of undue influence, imbalance in bargaining power and unconscionability.

183In my view the circumstances surrounding the alleged gratuitous transfer of the Newman Property from Robert to Adrian, are sufficient to establish a triable "interest in land" for the purposes of a CPL. (Pecore, Fichera, Karkoulis at para. 24, Avan at para. 26).

184On the basis of the record before me, there is sufficient evidence to allow me to conclude that there is a triable issue with respect to an interest in the Newman Property on the basis of a resulting trust. I am further satisfied that a declaration of a resulting trust is a possible remedy at trial. (Sun Rise Elephant, paras. 10, 11, Conti v. Duca, 2023 ONSC 6626 at para.39)

Equities

185Part two of the governing test is to review all matters as between the parties to determine whether the CPL should be granted.

186Even if a moving party meets the basic threshold requirements, the court may still refuse the CPL if it would be unjust to order it. The court must consider the equities in granting this form of interim relief. This is not a mechanical application of a test, but an exercise of discretion to achieve a just result. Factors the court may consider include the strength of the case, the uniqueness of the land, the adequacy of damages as remedy, whether the CPL appears to be for an improper purpose and the balance of convenience. Avan v. Benarroch, 2017 ONSC 4729 at para 18.

187The court is mindful that in the context of this case, many of the Dhunna factors are more relevant to an action for specific performance than to this case where a resulting trust claim is being advanced. (Avan v. Benarroch, 2017 ONSC 4729 at para. 36, Roseglen Village For Seniors Inc. v. Doble, 2010 ONSC 3239 at para. 15, affirmed 2010 ONSC 4680)

188Neither party argued that the Newman House is unique and I find that the land in question is not unique.

189Robert is claiming damages for intentional infliction of mental suffering and damages relating to antiques allegedly wrongly retained by Adrian. These claims for damages are not determinative as to whether damages would be a sufficient remedy. In this regard, Robert also seeks a declaration that Adrian is holding the Newman House in a resulting trust in favour of Robert, arising from the gratuitous transfer of legal title, a declaration that Robert is and was at all material times the beneficial owner of the Newman House and an Order collapsing the resulting trust over the Newman House and directing that title be returned to Robert.

190In terms of the equities, Adrian argues that granting a CPL in these circumstances would create unjust prejudice by restricting the use or disposition of a Property in which Adrian alleges that he has a clear and lawful interest. Adrian also argues that Robert did not seek the return of the Newman Property nor did he claim any beneficial interest in the Newman Property until Adrian asserted his alleged rights in the Bulloch House and to enforce the Promissory Note. Adrian argues that Robert’s current position is “clearly reactionary” such that the CPL is being sought based on an improper purpose.

191I am required to and have exercised my discretion in equity and I have looked at all of the relevant matters between the parties. In particular, on a balancing of interests, I find that Adrian’s raised concerns with respect to prejudice relating to the restriction of use of the Newman Property does not outweigh the prejudice to Robert if this motion is not granted.

192I do not find that Robert is seeking the CPL based on an improper purpose. The evidence in the record before me raises some concerns with respect to Adrian’s conduct including the circumstances surrounding the signing of the Promissory Note, the failure to ensure that Robert received legal advice prior to signing the Note, the surreptitious recording of Robert signing the Promissory Note, the inclusion of the video recordings of phone conversations with Michele’s ex-partners which cast her in a very negative light, the alleged threat against Michele’s life and Adrian’s alleged placing of the air tag in the defendants’ vehicle to track their movements.

193In my view Adrian's conduct heightens the risk that he may deal with the Newman Property in a manner that could defeat Robert's trust claim before it can be decided at trial. I am of the view that pending trial, equity favours preserving Robert's asserted interest in the Newman House through the registration of a CPL.

194Accordingly, having regard to the context of this case and the entire record before the court, I am satisfied that the equities favour granting leave to issue a CPL with respect to the Newman Property municipally known as 25 Newman Avenue, Richmond Hill, Ontario.

195The relief requested is granted. Leave is granted to issue a certificate of pending litigation on title to 25 Newman Avenue, Richmond Hill Ontario and more particularly described as:

LT 14 PL 253 WHITCHURCH ; RICHMOND HILL, with the PIN 03203-0006 (LT)

Costs

196All parties submitted costs outlines which were uploaded to Case Centre prior to the hearing of the motions.

197Robert’s costs outline calculates costs on a partial indemnity basis in the amount of $77,096.25 inclusive of fees, disbursements and HST and costs on a substantial indemnity basis in the amount of $113,832.16 all inclusive. The bill of costs reflects a total of 230.1 hours of time spent preparing materials, preparing for, and attending the hearing of these motions.

198Michele’s costs outline calculates costs on partial indemnity basis in the amount of $57,556.34 inclusive of fees, HST and disbursements and costs on a substantial indemnity basis in the amount of $84,097.49 inclusive of fees, HST and disbursements.

199Adrian’s costs outline calculates costs on a partial indemnity basis in the amount of $48,252.00 plus disbursements of approximately $2600.00 and on a substantial indemnity basis in the amount of $72,378.00 plus disbursements of $2600.00. The bill of costs reflects a total of 204.55 hours of time spent preparing materials, preparing for, and attending the hearing of this motion.

200Adrian and Robert both agree that approximately 70% of their time relates to work that was directed at the discharge motion relating to the Bulloch Property and 30% of their time relates to work that was directed at the Newman Property CPL motion.

201Michele did not participate in the Newman CPL motion but acknowledges some overlap between the time spent on the two motions. Michele estimates that 90% of the time claimed in the bill of costs was spent preparing materials and preparing for the hearing of the Bulloch discharge motion.

202If successful, Adrian seeks costs on a partial indemnity basis in the amount of $48,252.00 plus disbursements.

203If successful, on their motions, both defendants seek costs on a substantial indemnity basis. The defendants argue that Michele and Robert were subject to scandalous and outrageous allegations which were immensely personal, most of which were unnecessary, not relevant and designed to drive up the costs of litigation. The defendants point to the audio recordings of Michele’s ex-partners which were filed as evidence. The defendants highlight that not only is this evidence hearsay, it was not relevant and abusive.

204Robert describes Adrian’s conduct as “abominable”, suggesting that Adrian abused the court process to pursue his personal vendetta against Michele.

205Michele highlights that Adrian’s allegations forced her to respond to the personal allegations against her which served to unnecessarily expand the scope of the Bulloch motion, drive up costs and unnecessarily increase the time and effort which the parties were required to expend preparing materials and making submissions.

Costs - Analysis and Disposition

206Costs normally follow the event, meaning that the court orders the unsuccessful party to pay the costs of the successful party on a partial indemnity scale. A successful party is the party that obtained what it asked for. (Gashaw v. Riddell, 2025 ONSC 4614 at para.6 , Scipione v. Scipione, 2015 ONSC 5982 at paras.5-7) The defendants were entirely successful on these motions and are presumptively entitled to their costs. (Gashaw, at para. 6)

207When assessing costs, the court is to undertake a critical examination of the relevant factors, as applied to the costs claimed, and then “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable”. (100 Bloor Street West Corporation v. Barry's Bootcamp Canada Inc., 2025 ONCA 447 at para.71) (“100 Bloor Street”) The overarching objective is to fix an amount for costs that is objectively reasonable, fair and proportionate for the unsuccessful party to pay in the circumstances of the case.

208In the normal course, costs are awarded to a successful party on a partial indemnity scale. The court has the discretion to order costs payable on a substantial indemnity scale in exceptional cases. (Brown v. Hudson’s Bay Company, 2014 ONSC 5079 at paras. 45 and 57)

209The defendants seek their costs on a substantial indemnity scale. Contrary to the defendants’ submissions, I do not consider the conduct of the plaintiff to be such as to warrant an award of costs on an elevated substantial indemnity scale. Costs awarded on a substantial indemnity scale are exceptional and are reserved for those situations when a party has displayed reprehensible, scandalous or outrageous conduct: (Montréal (Ville) v. Octane Stratégie inc., 2019 SCC 57, at para. 95)

210The conduct of the plaintiff in this case does not rise to the level which is often associated with an elevated costs award. In my view, an award of partial indemnity costs is appropriate.

211I have considered and applied the legal principles outlined in 100 Bloor Street West. I have also reviewed and considered the costs submissions of both parties as well as the factors in Rule 57.01 and section 131(1) of the Courts of Justice Act. While I have found that the hours claimed are generally reasonable, I also note that they are slightly on the high side given the nature of the motions.

212I am also mindful that costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs to the successful litigant.: Zesta Engineering Ltd. v. Cloutier, para. 4. The amount fixed for costs must be fair, proportionate and within the expectations of the parties.

213In this regard, taking a step back and considering the nature of the motions, the outcome of the motions, with the defendants being entirely successful, and considering the reasonable expectations of the parties, I order partial indemnity costs in the all-inclusive sum of $50,0000 payable by the plaintiff to the defendant Robert George.

214Further, the plaintiff shall pay costs to the defendant Michele on a partial indemnity basis in the amount of $30,000 inclusive of fees, disbursements and HST.

215With respect to the timing of the payment of costs, in Axton v. Kent, the Divisional Court confirmed that “it is salutary practice to order costs payable forthwith on interlocutory orders unless the justice of the case suggests otherwise.” In the immediate case, I see no reason to depart from the general practice that costs should be payable forthwith. In this regard, unless the parties agree otherwise, costs of the motions on a partial indemnity basis in the amounts as specified above, shall be payable by the plaintiff to the defendants within 30 days. (Rule 57.03(1)(a)).

216Order to go to reflect the wording of this endorsement.