



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Gallant 
          v. Gallant,







2007 
          BCCA 21



Date: 20070109





Docket: CA034026

Between:

Roy 
    Gallant, Grant Gallant,

Ashley 
    Gallant and Jennifer Gallant

Respondents

(
Plaintiffs
)

And

Opal 
    Gallant and Trevor Nowosekski

Appellants

(
Defendants
)

And

Clay 
    Anthony Gallant

Respondent

(
Defendant
)




Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Mr. Justice Donald




The 
          Honourable Mr. Justice Chiasson



Oral Reasons for Judgment




J. 
          Roberts


Counsel for the Appellant




R,B. 
          Kearl


Counsel for the Respondents R. Gallant, G. Gallant, 
          A. Gallant & J. Gallant




Place 
          and Date:


Vancouver
,
British Columbia




9 January 2007



[1]

DONALD, J.A.
: The plaintiffs, respondents in this Court, 
    brought this action for the following relief:

(a)        A declaration that the Defendants hold the 
    Property in trust equally for the five children, namely Opal Claire Gallant, 
    Clay Anthony Gallant, Grant Gallant, Ashley Gallant and Jennifer Gallant, 
    so that each child has a twenty (20%) beneficial ownership in the Property;

(b)        An accounting regarding contributions made 
    to the Property by all parties;

(c)        A Certificate of Pending Litigation against 
    the Property more particularly known and described as:

Parcel Identifier: 025-917-170
Lot 8 Section 7 Township 8
New Westminster District Plan BCP10520

(d)        A sale of the Property pursuant to the
Partition 
    of Property Act
, R.S.B.C. 1996, c. 347, with the net proceeds being divided 
    equally among the five children, namely Opal Claire Gallant, Clay Anthony 
    Gallant, Grant Gallant, Ashley Gallant and Jennifer Gallant, after an accounting 
    for all parties' contributions toward the Property;

(e)        Special costs against Opal Claire Gallant 
    and Trevor John Nowoselski;

(f)         
    Such further and other relief as this Honourable Court deems meet and just.

[2]

Opal Gallant and Trevor John Nowoselski, two of the defendants below, 
    appeal from the judgment of Mr. Justice Romilly, who granted the plaintiffs' 
    Rule 18A application for judgment and dismissed the defendants' cross application 
    for an order removing the Certificate of Pending Litigation and granting them 
    conduct of sale of the subject property.  The judge's reasons are indexed 
    as 2006 BCSC 523.  We are informed by counsel that the property has been sold 
    and the proceeds are being held pending the outcome of the appeal.

[3]

In the judges reasons, he accepted the plaintiffs' evidence that Roy 
    Gallant, father of Grant Gallant, Ashley Gallant, Jennifer Gallant, Opal Gallant 
    and Clay Gallant, and father-in-law to Trevor Nowoselski, developed a plan 
    to purchase with his own funds an investment property for the equal benefit 
    of his five children.  The judge held this constituted a trust, the terms 
    of which are embodied in a document entitled "House Purchase Plan" 
    created by Roy Gallant, which provides, in part, as follows:

The 
    proposal is to purchase a house in Cloverdale.

1.         The ownership of the house will be in the 
    names of Opal, Trevor, and Clay
or
Grant.

2.         There will be a 2nd Mortgage on the house, 
    held by Opal, Clay, Grant, Ashley and Jennifer.  Each of the 5 kids will own 
    20% equity in the property.

3.         Clay and Grant will help Opal and Trevor subsidize 
    the monthly payments.

4.         The home is on a large lot, and can be subdivided 
    into 3 properties when the lane is put in at the back of the property, by 
    the neighbours to the south.

5.         
    There is an estimated 5 to 10 year hold on the property.

[4]

Roy Gallant caused the title to be registered in the names of Clay 
    Anthony Gallant, Trevor John Nowoselski and Opal Claire Gallant, and not the 
    others, for reasons explained by the judge at paragraph 7 of his reasons:

[7]  In the summer of 2001, Roy Gallant decided to buy the aforesaid Lands 
    and Premises for the benefit of the Children, two of whom were minors.  Each 
    child was to receive a one-fifth share.  To facilitate this purchase, Roy 
    Gallant decided with the consent of the Children and his wife, to make a gift 
    of the down payment on the Lands and Premises in the sum of $52,500.00 to 
    the five Children equally.  Because two of the Children were minors, however, 
    Roy Gallant decided that the title to the Lands and Premises would be placed 
    in the names of his oldest daughter Opal Claire Gallant and her boyfriend, 
    Trevor John Nowoselski, to be held in trust for the Children.  Opal and her 
    boyfriend could not qualify for the mortgage on the premises, however.  Consequently, 
    Opals brother Clay decided to be placed on the title to enable them to qualify 
    for a mortgage on the Lands and Premises.  In order to have Opal, Trevor and 
    Clay get the mortgage on the Lands and Premises, however, Roy Gallant had 
    to sign a mortgage letter to the mortgage lender stating that the sum of 
    $52,500.00 was a gift to Clay Anthony Gallant, Opal Claire Gallant and Trevor 
    John Nowoselski only, the persons who were registered on the title to the 
    Lands and Premises.

The defendants asserted that their interest should be 
    as reflected in the title.

[5]

The down payment for the property was $52,500.00, which the judge found 
    was Roy Gallant's gift to all five children.  He rejected the evidence of 
    Opal Gallant and Trevor Nowoselski where it conflicted with the evidence of 
    her father and siblings on the crucial issue as to the overall plan for the 
    property and their holding title to it.

[6]

The defendants attacked the judgment on procedural as well as substantive 
    grounds.  They say that the judge should not have decided the case on conflicting 
    affidavits.  In my opinion, there was sufficient documentary evidence of an 
    unimpeachable nature that confirmed the plaintiffs' evidence and which allowed 
    the judge to resolve the dispute in a fair manner.  The defendants also alleged 
    that the judge erred in not striking out Roy Gallants claim as disclosing 
    no cause of action in that he makes no claim against the property.  In my 
    view, Roy Gallant as the settlor had a valid basis for seeking a declaration 
    of the trust as a party in the proceedings.

[7]

The substantive grounds of appeal amount to a retrial of the facts, 
    which we are not permitted to do.  I am satisfied that there was a reasonable 
    basis in the evidence for the conclusions reached by the trial judge and I 
    would not give effect to the appeal on the merits.

[8]

The judge refused to cancel the Certificate of Pending Litigation on 
    consideration of the factors discussed in
Wiest v. Middelkamp
, 
    2005 BCSC 1626, where Mr. Justice Halfyard set out a three-part test:

[13]  
    In my opinion, the factors relevant to the exercise of the court's discretion 
    in this type of application include the following:

(a)        Whether the respondent has given an acceptable 
    explanation for the delay in prosecuting the claim;

(b)        Whether, despite the presumed prejudice, no 
    actual prejudice would be incurred by the applicant if the order was not granted; 
    and

(c)        
    Whether the respondent's claim for an interest in the land has at least a 
    reasonable prospect of succeeding.

[9]

The appeal concerning the request for cancellation of the certificate 
    of pending litigation and an order granting the power of sale to the defendants 
    is advanced on the basis that the appeal on the merits is successful.  On 
    the view I take of the principal issues on the merits, these additional issues 
    are unnecessary to decide.  In any event, the sale of the property renders 
    the conduct of sale issue entirely moot.

[10]

No basis having been shown for interfering with the order under appeal, 
    I would dismiss the appeal.

[11]

FINCH, C.J.B.C.
: I agree.

[12]

CHIASSON, J.A.
: I agree.

[13]

FINCH, C.J.B.C.
: The appeal is dismissed.

The Honourable Mr. Justice Donald


