



COURT OF APPEAL FOR ONTARIO

CITATION:
Wilkinson v. Wilkinson, 2012
    ONCA 518

DATE: 20120726

DOCKET: C54936

Simmons, Juriansz and Epstein JJ.A.

BETWEEN

Doreen Wilkinson

Applicant

(Respondent in Appeal)

and

Ian Wilkinson

Respondent

(Appellant)

Martha A. Cook, for the appellant

Kenneth J. Peacocke, for the respondent

Heard: July 20, 2012

On appeal from the order of Justice Kelly A. Gorman of
    the Superior Court of Justice, dated January 10, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals from an order granting
    leave to issue a writ of possession requiring that he vacate a home owned by
    his mother. In affidavits filed on the application the appellant alleged that
    he had done extensive work on the home and cared for both his parents in
    reliance on oral promises that he could eventually purchase the home. In
    addition, the appellant claimed an interest in the home by way of resulting or
    constructive trust. In the alternative, he claimed a right of occupation as a
    tenant.

[2]

The application judge declined the appellant's
    requests to convert the application to an action or to adjourn the application
    to permit cross-examinations. Applying the test in
RJR-MacDonald v.
    Canada
, [1994] 1 S.C.R. 311, she found:

1.
There was no serious issue to be tried concerning the
    appellant's right to possession as the mother is the titled owner of the home.

2.
Because the mother is 88 years old, on a fixed income and
    carrying the costs of two homes, she would suffer irreparable harm if the
    application were not granted  whereas the appellant would not suffer
    irreparable harm if the application were granted.

3.
The balance of convenience favoured the mother as the
    appellant was paying nothing towards the carrying costs of the home.

[3]

In the result, the application judge ordered
    that a writ of possession should issue.

[4]

In our view, the application was properly
    granted. The only issue before the court was whether the title holder was
    entitled to possession. Although the appellant introduced evidence relating to
    a claim for a constructive trust, he had not commenced a counter-application or
    action. In other words, he had not applied to the court for relief as
    contemplated by Rule 60.10 (2).  In these circumstances, the evidence adduced
    by the appellant was not relevant to the single issue before the court and
    there was no reason to convert the application to an action or to grant an
    adjournment for cross-examinations.

[5]

As for the appellants alternative claim that he was a tenant, he had applied
    to the Landlord and Tenant Board for relief, but had asked that his application
    to the Board be stayed.

[6]

In these circumstances, we see no impediment to the granting of a writ
    of possession. The appeal is therefore dismissed.

[7]

The costs of the appeal are to the respondent on a partial indemnity
    scale fixed in the amount of $9,917.99 inclusive of
    disbursements and applicable taxes.


