Court File and Parties
Court File No.: CV-24-5 Date: 2026/03/13
Ontario Superior Court of Justice
Between:
Gregory Poole Plaintiff/Defendant by Counterclaim (Responding party)
– and –
James Poole Defendant/Plaintiff by Counterclaim (Moving Party)
Paul Portman, for Gregory Poole
David M. Adams, for James Poole
Heard at Belleville by videoconference: January 26, 2026
Reasons for Judgment
Rees J.
Overview
[1] Gregory Poole and James Poole are brothers. Their mother purchased a cottage and registered it in their three names as joint tenants. Their mother died in 2019. The brothers and their families enjoyed the cottage together until they had a falling out.
[2] Given the deterioration in their relationship, James offered to buy out Gregory's interest in the cottage, failing which James indicated that he would bring a proceeding for its sale under the Partition Act, R.S.O. 1990, c. P.4.
[3] Shortly thereafter, Gregory commenced an action against James. Among other things, he alleges that James breached an oral contract to refrain from selling the cottage before 2033. He also alleges that James breached a second oral contract regarding their time sharing of the cottage. Gregory says that James interfered with his quiet enjoyment of the cottage during his allotted time at the cottage, and has harassed and intimidated him.
[4] James denies the existence of either contract and denies the other conduct Gregory alleges. He counterclaims for an order directing the sale of the cottage under the Partition Act. James brings this motion for summary judgment on his counterclaim and for the dismissal of Gregory's action.
[5] There is no genuine issue requiring a trial. I grant summary judgment to James and dismiss Gregory's action.
The law of summary judgment
[6] The court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to the claim or the defence, or the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 20.04(2).
[7] There will be no genuine issue requiring a trial when the motion judge is able to reach a fair and just determination of the action on the motion. This is the case when summary judgment allows the judge to make the necessary findings of fact; allows the judge to apply the law to the facts; and is a proportionate, more expeditious, and less expensive means to achieve a just result than a trial: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.
[8] The motion judge must first determine whether there is a genuine issue requiring a trial based only on the evidence filed on the motion, without relying on the enhanced fact-finding powers under r. 20.04(2.1). If, however, the motion judge concludes that a genuine issue for trial exists, the motion judge must then consider whether the need for a trial may be avoided by resorting to the enhanced fact-finding powers set out in rr. 20.04(2.1) and (2.2). The motion judge may use those powers, in his or her discretion, unless doing so would be contrary to the interests of justice. Using the enhanced powers will not be against the interests of justice if it will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole: Hryniak, at para. 66.
[9] On a motion for summary judgment, the moving party bears the evidentiary burden of showing that there is no genuine issue requiring a trial. If the moving party has discharged its evidentiary burden, the onus then shifts to the responding party to prove that its claim or defence has a real chance of success. See Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 30, leave to appeal refused, [2016] S.C.C.A. No. 443; New Solutions Extrusion Corporation v. Gauthier, 2010 ONSC 1037, at para. 12, aff'd 2010 ONCA 348. To successfully resist a summary judgment motion, a responding party must set out sufficient facts to show that there is a genuine issue requiring a trial.
[10] Each party must put its best foot forward to show whether there is an issue for trial. The court is entitled to assume that the record contains all the evidence the parties would present at trial: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5. The responding party must "lead trump or risk losing": BNS v. Compas, 2018 ONSC 3262, at para. 9. A responding party "may not rest solely on the allegations or denials in the party's pleadings, but must set out—in affidavit material or other evidence—specific facts showing that there is a genuine issue requiring a trial": r. 20.02(2). See T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665, 91 C.L.R. (4th) 146, at para. 29.
[11] The principles governing the admissibility of evidence on a summary judgment motion are the same as those that apply at trial, save for the limited exception found in r. 20.02(1) permitting an affidavit made on information and belief: Sanzone, at para. 15.
[12] With these principles in mind, I turn to the issues raised on this motion and their analysis.
Issues
[13] The following issues are raised on this motion:
a. Is there a genuine issue requiring a trial that James breached a contract to refrain from selling the cottage before 2033?
b. Is there a genuine issue requiring a trial that James breached a contract regarding their time sharing of the cottage?
c. Is there a genuine issue requiring a trial that James' conduct interfered with Gregory's use and enjoyment of the cottage?
d. Is there a genuine issue requiring a trial that would defeat James' presumptive right to sale under the Partition Act?
Analysis
[14] I can reach a fair and just determination of the action and counterclaim on the motion using the enhanced fact-finding powers under r. 20.04(2.1). There is thus no genuine issue requiring a trial. I can reach a just result on the paper record. Given the issues are straightforward, doing so is a proportionate and expeditious result. The court is entitled to assume that the record contains all the evidence the parties would present at trial.
The parties did not enter into a contract to refrain from selling the cottage before 2033
[15] Gregory contends that he and James contracted orally to not sell the cottage before 2033.
[16] James disputes this. He says that there was no such agreement. He further argues that such an oral agreement would be unenforceable as contrary to the Statute of Frauds, R.S.O. 1990, c. S.19.
No oral agreement
[17] Gregory's affidavit states that the brothers agreed orally, on or about June 2013, that they would continue to own, use and share the property until December 2033, inclusive. He states that the brothers agreed at that time to share the cost of carrying and maintaining the property. Finally, he says that the brothers agreed that they would discuss a potential buyout at the end of 2033 to keep the property in the family.
[18] Gregory's affidavit does not provide any context or supporting details for the alleged oral agreement. It is simply a bald statement of its terms.
[19] Although the parties did not cross-examine on each other's affidavits, they filed their discovery transcripts in the action and counterclaim.
[20] In Gregory's discovery evidence, he stated that the agreement happened over many dates in May and June 2013. He stated that James was going through a divorce and living with him at the time. He stated that the agreement was an effort by James to insulate his interest in the cottage from his former wife. When pressed on why this was never put in writing, Gregory stated that James told him that he did not wish to spend additional money on a lawyer to formalize their agreement and that their mother's will stated the cottage was non-communal property.
[21] Gregory admitted at discovery that he paid James no money or other consideration for the alleged promise to refrain from selling the cottage before 2033. On Gregory's evidence, it "was not about money or any compensation, it was strictly family". He claimed the reason James made the agreement was so that Gregory's children would get the same use of the cottage that James' children did.
[22] I find that Gregory's evidence is unpersuasive. At his discovery, Gregory claimed that his spouse witnessed several of the brothers' discussions about not selling the property until 2033 and provided answers to an undertaking providing her purported evidence. But Gregory did not file any evidence from his spouse on the summary judgment motion. While I do not draw an adverse inference from his failure to do so, it leaves his version of events unsupported. Further, there is no supporting evidence that James took any steps to attempt to insulate the cottage from his divorce proceedings.
[23] Gregory's explanation for the reason for the oral agreement shifted during discovery. At one point, Gregory explained that it was because James had family values and they wanted to ensure that Gregory's kids could get equal use of the cottage. At another point, Gregory deposed that James proposed the oral agreement to insulate the cottage from his divorce proceedings.
[24] Putting aside that such an agreement could not have insulated the cottage from James' family proceedings, I find it implausible that James would have taken no steps to memorialize the agreement if that were his intent. There is no evidence from James that would support this allegation. Further, there is no statement in their mother's will seeking to exclude the cottage from the brother's net family property under s. 4(2) of the Family Law Act, R.S.O. 1990, c. F.3. The will does not deal with the cottage at all.
Surrounding circumstances
[25] Gregory also relies on the surrounding circumstances in relation to his claim that there was an oral contract.
[26] In this regard, Gregory relies on the Transfer/Deed of Land registered on September 24, 2003. But this shows nothing more than their mother having transferred the property from her own name to all three of them as joint tenants. The value of the transfer was listed as "nil" and the consideration given listed as "transfer from mother to sons for natural love and affection".
[27] The Transfer/Deed of Land does not support Gregory's position.
[28] Further, Gregory relies on his mother's will in support of his position. Specifically, he relies on art. 3(a), which provides that, as joint estate trustees, they must agree to dispose of an asset or postpone the disposal of an asset within the estate. He states it was his mother's intention that the cottage remain in the family.
[29] I do not accept this argument. The will does not support Gregory's position because the cottage was not part of their mother's estate. Joint tenants acquire a right of survivorship in property. When one of them dies, the deceased's interest in the property ends at the moment of death. As a result, the property did not pass through their mother's estate. Further, there is no other provision in the will that supports Gregory's position. As discussed, it does not address the cottage.
[30] Gregory's contention that his mother intended the cottage to remain within the family indefinitely is unpersuasive. While I accept that his mother gifted the property to the brothers by making them joint tenants and would have wished them both to enjoy the cottage, there is no evidence that she constrained their ability to deal with the property. There is nothing in her will or other writing, nor any evidence from James or a non-party that supports the intention alleged by Gregory. James denies that his mother expressed the intention that it remain within the family.
Conclusion: there was no agreement
[31] Taken as a whole, I find Gregory's evidence to be unconvincing.
[32] James denies any oral agreement. I find James' evidence more persuasive on this point because he had a compelling financial reason not to agree: it would be contrary to his interests to tie up a major asset well past his planned retirement date in 2026, when he turns 60, and such an agreement would have caused him financial hardship.
[33] I find that there was no oral agreement between the parties to refrain from selling the cottage before 2033.
The parties did not enter into a contract for the time-sharing of the cottage
[34] Gregory alleges that he and James entered into an oral contract about their time-sharing schedule.
[35] After a July 2020 incident between the brothers' spouses, the brothers attempted to create a schedule so that they would avoid being at the cottage at the same time and thereby avoid further conflict. James proposed alternating weekends based on their spouses' schedules. Gregory raised entering into a formal agreement but they did not follow through. No agreement was reached.
[36] There is no genuine issue requiring a trial. Gregory acknowledges no agreement in writing was reached about the cottage schedule. The evidence Gregory relies on does not support a concluded oral contract. I find that, at most, the brothers and their families tried to avoid being at the cottage at the same time after their falling out.
[37] Even had I found that an agreement had been reached, it would not rise to an enforceable contract. Contract law does not regulate these types of social arrangements between family members. No claim arises for breach of contract because they are not intended to create legal rights and obligations – they depend on family ties and on mutual trust and affection: e.g. Jones v. Padavatton, [1969] 2 All E.R. 616 (C.A.), per Salmon L.J.; see also, Balfour v. Balfour, [1919] 2 K.B. 571 (C.A.). In my view, courts should be slow to find an enforceable contract in these circumstances.
James did not tortiously interfere with Gregory's use and enjoyment of the cottage
[38] As discussed, there is no contractual claim available on this record that James interfered with Gregory's quiet enjoyment of the cottage. I also conclude that James did not tortiously interfere with Gregory's use and enjoyment of the cottage.
[39] Gregory pleads that James' conduct amounted to a nuisance (among other torts). In its most general formulation, a private nuisance is an indirect interference with the plaintiff's use and enjoyment of land that is substantial in nature and unreasonable in the circumstances: Smith v. Inco Ltd., 2011 ONCA 628, 107 O.R. (3d) 321, at paras. 39-43; Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594, at paras. 18-21. A nuisance may take a variety of forms, including not only actual physical damage to land but also interference with the health, comfort or convenience of the owner or occupier: Antrim, at para. 23.
[40] Here, the allegation is that the nuisance arises from James' use of the brothers' jointly-held land. The parties did not file any cases in which a joint tenant was found liable in nuisance to the other joint tenant for his or her use of their land. I am not aware of any.
[41] In W. Eric Whebby Ltd. v. Doug Boehner Trucking & Excavating Ltd., 2007 NSCA 92, Cromwell J.A. (as he then was) held that "nuisance is concerned with unreasonable interference with the enjoyment of land resulting from another's conduct elsewhere. The interference with the plaintiff's enjoyment of land must be indirect rather than direct": at para. 127. An indirect interference means that the interference must originate outside the plaintiff's land: at paras. 127-32.
[42] As Cromwell J.A. explained, this "is not the dead hand of ancient legal technicality that justifies maintaining this distinction. Rather it reflects the role of the modern law of nuisance as a means of reconciling conflicting interests in connection with competing uses of land…. Before there can be conflicting interests in connection with the use of land, there must be uses of different lands which come into conflict": at para. 131 (emphasis added).
[43] This is fatal to Gregory's claim in nuisance. James' alleged conduct originated from their jointly held land. The alleged interference is thus "direct". Therefore, no action can lie in nuisance.
[44] Even if I were mistaken in this, I find that (i) James did not harass Gregory and (ii) the other alleged interferences are neither substantial nor unreasonable.
[45] Gregory alleges that James showed up at and drove by the cottage during weeks that Gregory was at the cottage and repeatedly called or texted to harass him and deter him from using the property.
[46] I find that the record does not support the allegation of harassment. Gregory relies on quotations of text messages referenced in his answers to undertakings on discovery, but the text messages themselves were not exhibited to his affidavit and are not properly in evidence before me. Even if I were to accept the quotations as evidence, they do not support harassment. Some refer to maintenance needed at the cottage, others show James checking to see whether Gregory is at the cottage. Their tone is not harassing or intimidating. I accept James' explanation that he was checking to see whether Gregory was at the cottage before going up to do maintenance or to pick up items he needed.
[47] Further, I find that there is a lack of evidence supporting other forms of harassment. While I find that there was an altercation of some kind between the brothers' spouses, I find that there was no pattern of ongoing behaviour by James or his spouse that resulted in an unreasonable and substantial interference with Gregory's use and enjoyment of land. Rather, the record shows that the brothers' spouses had a falling out and it was better for everyone that the families avoided spending time together at the cottage.
[48] Gregory says that James made alterations that interfered with his enjoyment of the shared premises, such as positioning his boat lift to interfere with Gregory's side of the dock and repainting one of the rooms.
[49] On the record, I am not persuaded that James unreasonably and substantially interfered with Gregory's use of the dock. James built the dock, which he permitted Gregory to use. At its highest, James switched the side of his boat lift without Gregory's agreement and left his personal watercraft on Gregory's side of the dock on occasion. This is trivial.
[50] Similarly, painting the room a lighter colour was trivial, and the evidence does not establish that doing so unreasonably and substantially interfered with Gregory's use and enjoyment of land.
[51] Finally, Gregory complains that James made repairs and maintained the cottage without Gregory's agreement. James' repairs to the cottage were upkeep to the property which benefitted both owners. I find that there is no evidentiary basis to suggest that these repairs and maintenance unreasonably and substantially interfered with Gregory's use and enjoyment of land.
Gregory's other claims are without merit
[52] Gregory made several other claims. For instance, he claims that James engaged in fraudulent or negligent misrepresentation and in conduct that was deceitful, fraudulent, or in bad faith. He also alleged unjust enrichment. I need not dwell on these claims. They are without merit.
James is entitled to an order for the cottage's sale under the Partition Act
[53] Given the breakdown in the parties' relationship, James seeks the sale of the cottage under the Partition Act.
[54] A joint tenant has a presumptive right to partition or sale: Partition Act, s. 2; Davis v. Davis, 1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.).
[55] A court must compel the partition or sale unless the party resisting it demonstrates that there is sufficient reason for refusal. The court has very little discretion to refuse the relief. To justify refusal, the respondent must establish malicious, vexatious, or oppressive conduct: Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), p. 441; Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 CanLII 48652 (ON CA), 75 O.R. (3d) 478 (C.A.).
[56] Here, there is no reason to deny James an order for the cottage's sale. James' conduct was not malicious, vexatious, or oppressive. In cases under the Partition Act, it is unexceptional to see interpersonal conflict and a breakdown in the relationship between joint tenants.
[57] A valid contract between co-owners may provide a reason to refuse partition and sale. Co-owners "may not resort to the Partition Act, if they agree to waive the right to do so": Brienza v. Brienza, 2014 ONSC 6942, at para. 34. As discussed, however, I find there was no agreement between the parties that they would not sell the cottage before 2033 which could disentitle James to relief under the Partition Act.
[58] Gregory also points to the uniqueness and his sentimental attachment to the property. There is nothing legally unique about the cottage property and, while I accept that Gregory is sentimentally attached to the cottage, it is not a sufficient legal reason to refuse the relief James seeks.
[59] Accordingly, I am satisfied that James has a right to sale under s. 2 of the Partition Act and that Gregory has not demonstrated a sufficient reason for refusal.
Disposition
[60] I grant summary judgment to James and dismiss Gregory's action.
Costs
[61] James seeks costs in the amount of $67,828.52 on a substantial indemnity basis. He says that the elevated costs award is justified because Gregory unnecessarily commenced litigation, falsely claimed non-existent oral agreements, and made several other baseless allegations, including allegations of fraud. In the alternative, he seeks partial indemnity costs in the amount of $49,420.35.
[62] While I agree that an elevated costs award may be warranted when unfounded allegations of fraud are made, I am not persuaded that they ought to be awarded in this case.
[63] Having considered the parties' written costs submissions and James' bill of costs, I award James partial indemnity costs of $49,420.35, all inclusive. I am satisfied that the amount is reasonable and fair.
Justice Owen Rees
Released: March 13, 2026