ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-24-93 Goderich

DATE: 2026/02/05

BETWEEN:

LEILA BUCHANAN and SHIRLEY FAYE BEIER in their personal capacity and as Estate Trustees of the Estate of Raymond Claire Cox, BONNIE JOYCE BROWN, CHERYL ELVA TREWARTHA, SANDRA LYNN PLEWIS Applicants – and – PATRICIA GAYLE HEMINGWAY in her personal capacity and as Estate Trustee of the Estate of Elva Helen Cox Respondent

Philip J. Smith, for the Applicants

Irwin Duncan and Zachary D. D’Amico, for the Respondent

HEARD: June 4, 2025

REASONS FOR JUDGMENT

TRANQUILLI J.

Introduction

[ 1 ] This application concerns the fate of the last remaining asset in the Estate of Elva Helen Cox. The parties are the residual beneficiaries of the estate. They are variously the children of the late Elva Cox or the surviving family of one of her children. The dispute concerns real property legally known as Part Lot 31, concession 3, Goderich Township and known to the parties as “the Bush Lot”.

[ 2 ] At issue is whether the estate beneficiaries made an enforceable oral agreement in or about 2009 to transfer the Bush Lot to their brother and estate beneficiary, Raymond Claire Cox (“Claire Cox”). Claire Cox died in April 2019. Claire Cox’s will transfers the Bush Lot to his stepdaughter, the applicant Leila Buchanan. However, title to the Bush Lot remains registered to his late mother. Three of the four surviving siblings acknowledge the oral agreement and join this proceeding as applicants. They want their mother’s estate to transfer the Bush Lot to their late brother’s stepdaughter. However, one sibling, the respondent estate trustee, denies the existence of an enforceable agreement.

[ 3 ] The applicants seek an order requiring the estate, through its trustee, to transfer the Bush Lot from the Estate of Elva Helen Cox to the applicant, Leila. They submit that the transfer honours the oral agreement made among the estate beneficiaries in or about 2009 after the death of their mother. They argue the agreement is enforceable through the doctrine of part performance and that the respondent’s bald denials cannot prevail against overwhelming evidence of the agreement. They also seek the respondent’s removal as estate trustee, a passing of accounts and damages for alleged negligence and breach of fiduciary duty in the administration of the estate.

[ 4 ] The respondent estate trustee denies the existence of an agreement that would require the transfer of the Bush Lot to her late brother. She submits that, in any event, the Statute of Frauds , R.S.O. 1990, c. S.19, precludes the enforcement of such an arrangement. She denies any neglect in the performance of her duties and notes that her late brother shared estate trustee duties with her in respect of the administration of their mother’s estate. He failed to take any steps consistent with such an agreement. The respondent submits that her fiduciary duties as estate trustee also prevent her from transferring the Bush Lot as sought, particularly when the fair market value of the Bush Lot would likely command a potentially significant value for the estate in contrast to the proposed the non-arms length transaction with the applicant for no monetary consideration.

[ 5 ] I heard the application on the written record, consisting of the application record, a responding record, reply affidavits and transcripts of cross-examinations of the parties.

[ 6 ] These reasons explain why the court grants an order requiring the Bush Lot be transferred to Leila Buchanan pursuant to Claire Cox’s Will. In summary, the court is satisfied the record demonstrates the beneficiaries entered into an oral agreement to transfer the property to the late Claire Cox. This agreement is enforceable pursuant to the doctrine of part performance.

[ 7 ] However, I am not persuaded that this record provides a sufficient basis on which to address the balance of the relief sought by the applicants. This includes orders for passing of accounts, removal of the estate trustee and damages arising from the alleged negligent administration of the estate. The estate administration issues were not the focus of evidence, legal argument or substantive submissions on this application. As noted by the parties, the estate was largely administered and distributed by 2009. The Bush Lot has been the sole asset in the estate since 2011. In my view, the parties should exchange further information and consider proportionality before the court can properly assess these remedies. Procedural issues also include consideration as to whether viva voce evidence is essential to the resolution of the estate administration and damages claims. The court would certainly not be able to draw reasonable inferences as to the management of the estate on this record, let alone assess damages. The balance of this application is accordingly adjourned on terms as provided at the conclusion of these reasons.

Issues

[ 8 ] The disposition of this application requires the court to address the following questions:

1. Is there an oral agreement for the transfer of the Bush Lot?

2. If so, is the oral agreement enforceable?

[ 9 ] These questions on this application engage issues of credibility. The parties nevertheless proceeded as though these issues could be determined on a written record and did not raise this process as a concern. The court spent some time in anxious consideration of whether this written record is the just and appropriate means by which to dispose of these questions.

[ 10 ] Over a decade ago, the Supreme Court of Canada urged a culture shift to promote timely and affordable access to the civil justice system, with a move away from the conventional trial in favour of proportional procedure tailored to the needs of the particular case. The court made it clear that summary judgment motions were only one such opportunity where the balance between procedure and access should be considered in promoting a proportionate, more expeditious and less expensive means to achieve a just result than going to trial: Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87, at paras. 1–4 .

[ 11 ] I have considered whether the affidavits and cross-examinations are sufficient to decide credibility issues or whether these issues require viva voce testimony. Although the respondent’s position requires the court to make disputed findings of fact, in my view, oral testimony, including the opportunity to observe the witnesses, is not necessary for the just disposition of these issues. The parties were cross-examined about events that occurred more than 10 years ago. A material witness is deceased. Viva voce testimony will not assist in resolving any gaps in the evidence in that regard. Notwithstanding the respondent’s bald denials, the evidence of the existence of an agreement was otherwise overwhelming. This is the only asset remaining in the estate, which has otherwise been inactive and without an account since in or about 2011. The delay, time and expense of a trial raises the risk of championing a process that is entirely disproportionate to the context of the dispute. This is particularly so when considering the finite resources and limited court schedule available in Goderich. I am satisfied that this resolution promotes timely and affordable access to justice.

Background

[ 12 ] The following overview arises from the record, consisting of affidavits and cross-examinations on affidavits.

[ 13 ] Elva Helen Cox died on July 26, 2008. She was predeceased by her spouse, Herbert Raymond Cox, who died in 1995. Elva and Herbert Cox were involved in farming during their lifetimes.

[ 14 ] Elva Cox had five children living at the time of her death in 2008: Claire Cox (“Claire”), the applicants Bonnie Joyce Brown (“Bonnie”), Cheryl Elva Trewartha (“Cheryl”) and Sandra Lynn Plewis (“Sandra”) and the respondent Patricia Gayle Hemingway (“Patricia”).

[ 15 ] The applicant, Leila Buchanan (“Leila”), is Claire Cox’s stepdaughter. The applicant Shirley Beier (“Shirley”) is Leila’s mother and was Claire Cox’s spouse. Claire Cox died on April 27, 2019, leaving a Will dated December 6, 2012, that named Shirley and Leila as estate trustees.

[ 16 ] The balance of these reasons shall refer to the parties by their first names for clarity.

[ 17 ] Elva’s Will dated February 7, 2001, named Claire and the respondent, Patricia, as her estate trustees. Claire and Patricia obtained a certificate of appointment in January 2009.

[ 18 ] Elva’s estate consisted of farm property, the Bush Lot and various financial assets. Her Will dated February 7, 2001, gave Claire the first option to purchase farm property legally known as Lot 28, Concession 6 in the Municipality of Central Huron, and known within the family as the “Back Farm”. Elva’s Will otherwise divided the residue of her estate equally amongst her five children living on the date of her death.

[ 19 ] The parties agree that most of Elva’s estate was distributed to her beneficiaries as of June 2009. Only the Bush Lot and the Back Farm remained to be addressed as of that date.

[ 20 ] There is no dispute that Claire declined to exercise his option to purchase the Back Farm as provided in his late mother’s will. The applicants, Bonnie, Cheryl and Sandra, depose that at about the time of the 2009 interim distribution, the five beneficiaries agreed that the estate would instead transfer the Bush Lot to their brother, Claire, without additional payment, in consideration for his help with their parents’ farm operation.

[ 21 ] Patricia agrees her brother waived his option to purchase the Back Farm but denies that the estate beneficiaries agreed to transfer the Bush Lot to her brother Claire instead. Patricia’s affidavit sworn in response to this application deposes that at no time prior to his death did Claire communicate to her that he wanted to acquire the Bush Lot. Moreover, she submits that there was never any agreement to transfer the Bush Lot to his stepdaughter. On her cross-examination, Patricia confirmed her blanket denial that the siblings reached an agreement in 2009. However, she allowed that “one sister”, Sandra, mentioned it at the time, “sort of just putting it out there but no discussion really.”

[ 22 ] The respondent Patricia, her spouse and two of their children bought the Back Farm in 2011 from Elva’s estate on terms negotiated with the other beneficiaries. The terms included that the purchase price was based on the fair market value at the time of Elva’s death in 2008 and that Patricia and her family would share any increase in the value of the property with the other estate beneficiaries if they sold the Back Farm within 10 years. The beneficiaries each received a one-fifth share of the sale price of the Back Farm to Patricia and her family. There has been no estate activity since then and the Bush Lot remains as the sole asset remaining in the estate.

[ 23 ] In his Will dated December 6, 2012, Claire transferred the Bush Lot “to my spouse’s daughter Leila Buchanan if she is alive at the time of my death.”

[ 24 ] At about this same time, by letter of December 10, 2012, counsel for the Estate of Elva Cox wrote to the executors, Claire and Patricia, about the Bush Lot that remained in Elva’s estate. Counsel’s letter advised the executors that the Bush Lot property description was inaccurate and that a transfer would require completion of a reference plan/survey. The letter confirmed counsel’s discussion with Claire “that the situation was going to be left as is at this time.”

[ 25 ] The situation was apparently left “as is”, and the Bush Lot remained in Elva’s estate. There is no dispute that Claire paid the property taxes for the Bush Lot throughout this time. Patricia claims the payments were made pursuant to Claire’s practice of paying for the property taxes from the “joint farm account” that he previously held with their late father and then their late mother. However, she acknowledged the “joint farm account” was not part of Elva’s estate. Ultimately, she did not know the source of the payment for these property taxes.

[ 26 ] Claire died in April 2019. By letter on May 26, 2019, counsel Cheryl Masson wrote to Patricia in her capacity as the executor of Elva’s estate. Counsel’s letter to Patricia opens: “[w]e confirm that you contacted us regarding the transfer of a bush lot that was still in the Cox Estate. The query was prompted by the fact that it was intended that Claire have title to the bush lot. Unfortunately, Claire has since passed away.”

[ 27 ] The letter went on to explain the history of title to the Bush Lot and the need to incur the expense for a reference plan. Patricia does not deny receiving the letter. However, she claims that she does not remember calling Ms. Masson as represented in the letter. She also states she did not tell counsel about an agreement to transfer title of the Bush Lot to Claire. Patricia speculated that “someone else may have” told the lawyer.

[ 28 ] Patricia acknowledges that she continued to give the tax bill for the Bush Lot to Claire’s spouse, Shirley, for payment while Claire was sick. She continued to forward the tax bill to Shirley after Claire’s death for payment.

[ 29 ] The disposition of the Bush Lot remained unaddressed until the applicant, Leila, made inquiries in August 2021 about the status of the transfer of the Bush Lot to her pursuant to Claire’s Will.

[ 30 ] Leila and Shirley retained counsel in 2022, who communicated with Ms. Masson in her apparent capacity as estate trustee for Elva’s estate. Patricia claims that she remains unclear as to who Ms. Masson represented; however, it is evident that Ms. Masson continued to act for the estate up until the events leading to this application and that Patricia met with her and gave instructions. In late 2022, Patricia learned that Leila and/or Shirley contracted with a third party for a tree harvest from the Bush Lot. Patricia claims that they owe proceeds from the tree harvest to Elva’s estate.

[ 31 ] Negotiations took place among the parties throughout 2022 and 2023 through counsel. Concerns included potential capital gains consequences for Elva’s estate with the delayed transfer and whether that was even an issue. By January 2023, Leila’s counsel confirmed to Ms. Masson that Leila would indemnify the estate in respect of any capital gains that might be triggered with the transfer of the Bush Lot.

[ 32 ] The dispute crystallized in April 2023 when Patricia learned from Ms. Masson that Leila and/or Shirley retained a surveyor and registered a reference plan for the Bush Lot. Patricia testified that Bonnie, Cheryl and Sandra also started asking her about why the transfer was not done in 2008 or 2009 and why a survey had to be undertaken.

[ 33 ] On or about April 18, 2023, Patricia called a meeting with her sisters Bonnie, Cheryl and Sandra. Patricia prepared a written memorandum for that meeting that set out the history of the lot. Patricia also identified the “options” as she saw them for the siblings’ consideration as estate beneficiaries. The authenticity of this memorandum is not in dispute. In setting out the history of the Bush Lot, Patricia stated: “ I know that the 4 of us discussed the bush going to Claire to compensate him in a small way for staying around and looking after the farms. However, nothing was made legal .”

[ 34 ] The “options” identified in the memorandum provided:

1. Transfer the property to Leila and “sign off our inheritance”;

2. Negotiate the transfer to Leila for value;

3. Sell the Bush Lot and divide the proceeds among the five beneficiaries; or

4. Offer to sell the property to the next generation and keep the Bush Lot in the family.

[ 35 ] Patricia’s memorandum also commented: “ Claire didn’t exercise his option to transfer the bush lot into his name. ” On cross-examination, Patricia explained that her reference to the “option” to transfer was probably a misuse of the term arising from their mother’s Will that provided Claire with the option to purchase the Back Farm. Patricia testified that she meant that if Claire had been told he could have the Bush Lot, he did nothing to transfer the property to his name before his death.

[ 36 ] Bonnie, Cheryl and Sandra depose that at the April 2023 meeting, they told Patricia they originally agreed to transfer the lot the Claire in 2009, and they therefore wished to transfer the property to Leila as Claire provided in his Will. According to the applicant sisters, Patricia expressed shock at the decision but said she would go along with the majority and set up a meeting with the estate lawyer, Ms. Masson, for the paperwork.

[ 37 ] Patricia denies that she agreed to go along with her sister’s wishes. However, Patricia sent an email to Bonnie, Cheryl and Sandy on April 24, 2023, which advised they would not be able to meet with the lawyer before the lawyer went away. Patricia advised her sisters they did not need to be concerned if anything happened in the interim because “ [f]rom the meeting we had you all made your decision clear so there should be no problem .” On cross-examination, Patricia acknowledged that the “decision” pertained to the transfer of the Bush Lot to Leila.

[ 38 ] A signing meeting for the Bush Lot transfer was scheduled for June 27, 2023. However, on or about June 19, 2023, Patricia advised her sisters that she canceled the meeting because of “mistakes” in the paperwork. Patricia testified that she discovered many errors on her review of the paperwork, including that the Bush Lot would be transferred to Leila and not from the Estate to Elva’s beneficiaries. She maintains that she did not give these instructions to counsel.

[ 39 ] By letter on September 13, 2023, Ms. Masson advised the estate beneficiaries and Leila’s counsel that she was mistaken when she told the parties in 2022 that the beneficiaries agreed to the transfer of the Bush Lot. Counsel explained that she now understood there was, in fact, no agreement among all the beneficiaries in this regard such that the reference plan and other preparations made for the transfer of the Bush Lot had therefore been taken without the due authorization of Elva’s estate. Ms. Masson advised there would need to be an accounting of the income and expenses from the Bush Lot to address the property tax payments by Claire and any income received from logging.

[ 40 ] The parties have made various inquiries about the zoning for the Bush Lot and its market value. Elva’s estate summary assigned an approximate value of $4,050 in 2009. However, Patricia’s inquiries in 2024 suggested a listing price between $89,900 and $219,000 if the property were rezoned as residential. The applicants question whether these estimates are realistic where it is unclear that the property could be rezoned.

Analysis

1. Is there an oral agreement for the transfer of the Bush Lot?

[ 41 ] Whether a valid and binding oral agreement exists does not depend on the existence of a formal written document between the contracting parties. The essential terms of an oral contract for the purchase and sale of real property are the parties, the property and the price. If these terms have been agreed on, then a contract may be found without the need for evidence of a written agreement: Mountain v. Mountain Estate , 2012 ONCA 806 , 112 O.R. (3d) 721, at para. 66 . The determination of whether the parties intended to contract and whether the essential terms of the contract can be determined with a reasonable degree of certainty is arrived at from the perspective of an objective, reasonable bystander in light of all the material facts: Shifrin v. LDF Frozen Foods Inc. et al , 2025 ONSC 2095 , at para. 96 . The court should look at all the circumstances surrounding the alleged agreement to decide whether the parties came to an agreement, and if they did, to decide the terms to which they agreed. These circumstances include words and conduct, future actions and representations by both parties, and reliance: Xynos v. Xynos , 2023 ONSC 830 , at para 94 ; UBS Securities Canada Inc. v. Sands Brothers Canada Ltd ., aff’d 2009 ONCA 328 .

[ 42 ] On a consideration of the whole of the evidence that I do accept, I am satisfied the parties entered into an oral agreement for the transfer of the Bush Lot to Claire. There is no uncertainty by the applicant sisters Bonnie, Cheryl and Sandra that this was the bargain struck among the residual beneficiaries of their late mother’s estate. The beneficiaries’ agreement was necessary as the Bush Lot otherwise formed the residue of the estate. Claire waived his option to purchase the Back Farm under the Will, and the other beneficiaries agreed the Bush Lot would be transferred at no additional value in consideration for Claire’s assistance to their parents over the years in making the farms profitable. I am mindful of the respondent’s position regarding certainty of terms and that a closing date was evidently not contemplated by the parties. I do not find this to be an essential term of the agreement. Nor do I find that this or a failure to address incidental transfer costs suggests there are missing terms that demonstrate the parties had not yet concluded an agreement. The context in which this agreement was formed is important. This was not a business deal struck by sophisticated parties. This was a family discussing the distribution of their mother’s estate on terms that they determined were fair to the beneficiaries. Not only did these discussions include the oral agreement as to the Bush Lot, but it also involved the beneficiaries’ cooperation in the sale of the Back Farm to Patricia.

[ 43 ] Patricia’s bald denial of an agreement stands in stark contrast to the preponderance of direct and circumstantial evidence in support of its existence. The applicant sisters submit there was an agreement to transfer the Bush Lot to Claire and that Claire waived his option to purchase the Back Farm in reliance on that agreement. The respondent points to sister Cheryl’s testimony on cross-examination as evidence that there was no agreement. I have considered Cheryl’s testimony and whether it undermines the cogency of this evidence or requires an oral hearing. The respondent relied on Cheryl’s statement: “ [m]y brother and I really never had any conversations about the bush lot to tell you the truth ,” in support of the respondent’s contention that there was no agreement. However, Cheryl’s statement was in response to the question: “ [d]uring the time that he [Claire] was alive he did not transfer the bush lot or sell the bush lot to anybody? ” I find this apparent inconsistency arises from a decontextualization of the witness’ answer. The question was not asked in the context of clarifying the circumstances of the alleged agreement.

[ 44 ] The disposition of the Bush Lot in Claire’s 2012 Will is circumstantial evidence of the existence of the agreement, as is the 2012 letter to the estate trustee’s attention at about the same time explaining the complication in making a transfer and the need to obtain a survey.

[ 45 ] The letter of May 2019 to Patricia in her capacity as estate trustee for Elva’s estate, one month after Claire’s passing, is also telling. The fact that she made independent inquiries of counsel as to how to transfer the Bush Lot evidences Patricia’s acknowledgement of the agreement. She challenges the accuracy of the contents of the letter. She does not deny the authenticity of the letter or that she received it. But she claims not to recall speaking to the lawyer and denies the accuracy of the opening paragraph. To the extent this is an explanation, it is implausible. Counsel wrote to the estate trustee authorized to provide instructions about the Bush Lot and would only have taken instructions from the estate trustee. That could only be Patricia, as the other estate trustee, Claire, had just passed. The allegedly erroneous information about the intention to transfer the Bush Lot to Claire is entirely consistent with the agreement the applicants seek to enforce. It is difficult to conceive of a reasonably plausible scenario where such consistent information would be provided to estate counsel by someone other than Patricia.

[ 46 ] Moreover, Patricia’s very own words in her April 2023 memorandum corroborate the accuracy of the 2019 counsel letter, and again, the existence of the agreement: “I know that the 4 of us discussed the bush going to Claire to compensate him in a small way for staying around and looking after the farms. However, nothing was made legal.”

[ 47 ] I acknowledge the respondent would interpret her statement “ nothing was made legal ” as a further expression of her position that there was no agreement. However, her bald denial of an agreement proves to be more nuanced and changeable over time. She first steadfastly denied the existence of any agreement to transfer the Bush Lot. She then allowed that her sister Sandra “ put it out there ” at the time but that there had been no real discussion. This is then at further odds with the evidence of her knowledge of an actual agreement as first outlined in the May 2019 counsel correspondence and her own words in her April 2023 memorandum referring to the four sisters discussing the Bush Lot going to Claire to compensate him for his contributions.

[ 48 ] Finally, Patricia’s practice of giving the property tax bill to Claire and then to his widow for payment also supports the existence of an agreement. Patricia’s claim that Claire paid for the taxes from the “joint farm account” is not persuasive. She acknowledged that the farm account did not form part of Elva’s estate and that Claire first jointly held the account with their father and then their mother. Even if Patricia did think that there was somehow still a “joint farm account” that existed after both parents had passed that was available to pay for taxes for estate property, it would not make sense that she would continue to give the tax bill to Claire’s widow for payment after his death - unless she considered that he had a proprietary interest in the lot. Otherwise, why, as estate trustee, would she continue to present the tax bill to another person for payment where that person has no obligation to the estate? If there was no agreement to transfer the Bush Lot to Claire, then the failure to deal with this final asset in the dormant estate for the next 13 years also remains unexplained. On its own it may not be probative, but it is consistent with the fact that an agreement was made as to its disposition years earlier.

[ 49 ] I appreciate that some of this evidence I have referred to may be equivocal or insufficient when examined in isolation. However, I am satisfied that the cumulative totality of the evidence establishes that there was an oral agreement for the transfer of the Bush Lot to Claire in consideration for helping the beneficiaries’ parents.

2. If so, is the oral agreement enforceable?

[ 50 ] The fact that a formal written document is to be prepared and signed does not alter the binding validity of the original contract. However, an oral agreement to sell land is not generally enforceable: Erie Sand and Gravel Limited v. Tri-B Acres Inc. , 2009 ONCA 709 , 97 O.R. (3d) 241, at para. 42 . Section 4 of the Statute of Frauds provides no action shall be brought upon a contract for the sale of lands unless the agreement upon which the action is brought is in writing and signed by the parties.

[ 51 ] However, the equitable doctrine of part performance allows the court to enforce an oral agreement where it is unconscionable to apply the Statute of Frauds to render a contract unenforceable. If one party to an otherwise unenforceable agreement stands by while the other party acts to its detriment by performance of its contractual obligations, the first party will be precluded from relying on the Statute of Frauds to excuse its own performance. The acts of part performance diminish the opportunity for fraudulent dealings with the land based on perjured evidence: Erie Sand , at paras. 49, 64.

[ 52 ] Two requirements must be satisfied before there can be a proper finding of part performance sufficient to avoid the requirements of s. 4 of the Statute of Frauds : (i) detrimental reliance; and (ii) the acts unequivocally refer to the property in dispute and show some dealing with the land sufficient to indicate the existence of the alleged contract: 2730453 Ontario Inc. v. 2380673 Ontario Inc. , 2025 ONCA 112 , at paras. 2 , 25–26, leave to appeal to S.C.C. requested, 41758.

[ 53 ] Detrimental reliance requires that the court be satisfied the party seeking to enforce the oral agreement acted to its detriment by irremediably carrying out its obligations under the oral agreement, while the other party stood by, making it inequitable to allow the other party to rely on the Statute of Frauds . The conduct of both parties may be considered on the question of whether there has been detriment. It need not be shown that the detrimental reliance was more than de minimus or nominal. There is no dollar limit or financial threshold that determines when the equitable doctrine of part performance will apply: 2730453 Ontario Inc. , at paras. 6, 34 and 53–56 .

[ 54 ] The acts of part performance need not be referable only to the contract alleged. It is sufficient if the acts are unequivocally referable in their own nature to some dealing with the land: Mountain , at para. 82 .

[ 55 ] I am satisfied the applicants have established part performance through the following acts sufficient to preclude the application of the Statute of Frauds . First, Claire waived his option to purchase the Back Farm under his mother’s Will with the expectation that the Bush Lot would be transferred to him. Second, the payment of property taxes, first by Claire and then by his estate trustee, was regularly undertaken with the express knowledge and expectation of the respondent over the course of several years after the inception of the oral agreement. The respondent handed the tax bill over to Claire or his widow for payment. The respondent’s self-serving explanation that she merely understood the Bush Lot property taxes were paid by her brother from the “joint farm account” does not make these actions equivocal. I have previously explained why I do not find that explanation persuasive, for reasons including that the respondent knew or ought reasonably to have known the former joint account did not form part of her mother’s estate. It would not be reasonable for her to believe that her brother was paying for the property taxes with their mother’s/their parents’ funds, nor would it make sense for her to continue to present the tax bill to Claire’s widow to pay taxes on behalf of Elva Cox’s estate. However, the actions do make sense as being in furtherance of the agreement to transfer the Bush Lot.

[ 56 ] The applicants also submitted that the act of undertaking a survey has been held to be part performance. I agree with that as a general proposition; however, it was the court’s understanding from the record that the respondent was not aware that a survey was performed by her late brother’s family until after it had taken place and that she took exception to this conduct. I have therefore not considered the survey of the Bush Lot in this analysis.

[ 57 ] The applicants have nevertheless proved acts of part performance sufficiently referable to some dealing with the land such that it would render it inequitable for the respondent to rely on s. 4 of the Statute of Frauds to avoid performance. I find the oral agreement should be enforced. I recognize that one issue the parties had been addressing in their dealings was how to manage the potential costs of a transfer and how to manage any such liabilities for the limited estate. These issues were not addressed in the matters for the court’s direction on this application. Therefore, I will not give any direction.

Disposition

[ 58 ] The application pertaining to the disposition of the Bush Lot is allowed for the foregoing reasons. An order shall be issued pursuant to paragraph 1(e) of the Notice of Application issued December 20, 2024.

[ 59 ] I have not addressed the balance of the application for the reasons explained earlier herein. The balance of the application at paragraphs 1 (a), (b), (c), (d), (f) and (h) are adjourned sine die , returnable on 10 days’ notice.

[ 60 ] I encourage the parties to resolve costs. I note the applicants’ bill of costs sets out total costs of $9,356.00 inclusive, although it was not clear whether that was on a partial or full indemnity basis. The respondents’ bill of costs sets out partial indemnity costs of $40,243.02 and full indemnity costs of $60,377.36. If the parties are unable to resolve costs, the applicants shall deliver their written submissions by February 24, 2026, and the respondent shall deliver its written submissions by March 3, 2026. Written submissions are limited to two pages. There is no right of reply without leave.

[ 61 ] I am not seized of this matter given the exigencies of scheduling in our region. If the parties are of the view that I could assist with case management, they may make inquiries of our trial coordinator, but my time may be quite limited.

Justice K. Tranquilli

Released: February 5, 2026

COURT FILE NO.: CV-24-93 Goderich

DATE: 2026/02/05

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: LEILA BUCHANAN and SHIRLEY FAYE BEIER in their personal capacity and as Estate Trustees of the Estate of Raymond Claire Cox, BONNIE JOYCE BROWN, CHERYL ELVA TREWARTHA, SANDRA LYNN PLEWIS Applicants – and – PATRICIA GAYLE HEMINGWAY in her personal capacity and as Estate Trustee of the Estate of Elva Helen Cox Respondent REASONS FOR JUDGMENT Justice K. Tranquilli

Released: February 5, 2026