



COURT OF APPEAL FOR ONTARIO

CITATION: Corvello v. Colucci, 2022 ONCA 159

DATE: 20220218

DOCKET: C68475

Strathy C.J.O., Roberts and Sossin JJ.A.

BETWEEN

Tony Corvello and Gino Colucci

Plaintiffs (Respondents)

and

Arthur Colucci

Defendant (Appellant)

Bradley Phillips, for the appellant

Fredrick R. Schumann, for the respondents

Heard: February 15, 2022 by videoconference

On appeal from
    the judgment of Justice Tracey Nieckarz of the Superior Court of Justice, dated
    June 11, 2020, with reasons reported at 2020 ONSC 3679.

REASONS FOR DECISION

[1]

The appellant, Arthur Colucci, appeals the judgment granting the motion
    brought by the respondents, Tony Corvello and Gino Colucci, for a declaration
    that the appellant holds a land use permit in trust for himself and the
    respondents as beneficial owners.

[2]

At the conclusion of the appellants submissions, we dismissed the
    appeal with reasons to follow. These are those reasons.

[3]

Arthur and Gino Colucci are brothers. Tony Corvello is Arthurs
    brother-in-law. At issue is the ownership of a land use permit which was obtained
    from the Ontario government in 1974 (the permit). The permit allows the
    holders to build on and use the property for recreational purposes. The permit does
    not confer any rights of ownership over the land or any interest in the land to
    which it applies.

[4]

Since obtaining the permit, the parties and their families had
    harmoniously enjoyed the use of a recreational property on Lac Seul in the
    District of Kenora, Ontario (the property). As the trial judge noted, the
    parties described the property as a place where their families gathered to
    build, work, relax and enjoy each others company. Sadly, these happier
    times came to an end in 2016 when Arthur took the position that the permit
    belonged to him alone and he locked out the respondents and their families from
    the property. Litigation ensued.

[5]

After a meticulous review of the evidence from the three-day trial of
    this matter, the trial judge determined that Arthur held the permit in trust
    for himself and the respondents as beneficial owners. She declined to award the
    general damages sought by the respondents.

[6]

Arthur raises the following single issue on appeal: Did the trial judge
    err in law and in fact in determining that an undocumented trust agreement
    existed when the alleged settlor provided an alternate explanation as to what
    his intention was?

[7]

It is well established that the creation of a valid trust requires
    three essential characteristics or three certainties: certainty of intention
    to create a trust; certainty of subject matter; and certainty of objects:
Byers
    v. Foley
(1993), 16 O.R. (3d) 641 (Gen. Div.), at para. 13, citing D.M.W.
    Waters,
Law of Trusts in Canada
, 2nd ed. (Toronto: Carswell, 1984), at
    p. 107.

[8]

Arthur does not dispute that there was certainty of subject
    matter and object, but he submits that there was no certainty of intention to
    create a trust. He bases his submission on the argument that, in the absence of
    documentation evidencing a trust agreement among the parties and the fact that
    the permit was in his name alone, his evidence that he never intended to create
    a trust and that he alone owned the permit should have been given primary
    consideration and accepted by the trial judge. He argues that the trial judges
    analysis was flawed because she determined Arthurs intention as settlor of the
    trust through the lens of the other parties intentions and therefore
    misapprehended the evidence supporting Arthurs intention not to create a
    trust.

[9]

We do not agree.

[10]

It
    was open to the trial judge to accept some, all, or none of any witnesss
    evidence. Certainly, she was not obliged to accept all or any of Arthurs
    evidence. Nor was the absence of a formal trust agreement or the fact that the
    permit was in Arthurs name alone determinative. Rather, to ascertain certainty
    of intention in the absence of a written trust agreement, the trial judge was
    required to look at the surrounding circumstances and the evidence as to what
    the parties intended, as to what was actually agreed, and as to how the parties
    conducted themselves:
Byers
, at para. 15. She was also required to
    make findings based on her assessment of the credibility and reliability of the
    evidence presented at trial. Findings open to the judge based on the
    evidentiary record and credibility findings attract deference from this court:
Chechui
    v. Nieman
, 2017 ONCA 669, 136 O.R. (3d) 705, at para. 33.

[11]

We
    disagree that the focus of the trial judges inquiry should have been on
    Arthurs subjective intentions. Rather, she was required to apply an objective
    standard to ascertain the certainty of intention not just from Arthurs own
    acts, but also from the acts of the other parties:
Ontario (Training,
    Colleges and Universities) v. Two Feathers Forest Products LP
, 2013 ONCA
    598, 368 D.L.R. (4th) 714, at para. 24. Nor did she misapprehend the evidence.
    The trial judge was not limited to considering Arthurs denials, but was
    entitled to consider the evidence as a whole from which she could infer Arthurs
    intention and the common intention of the parties to hold the permit in trust
    for himself and the respondents:
Byers
, at para. 26.

[12]

This
    is precisely what the trial judge did. The only three witnesses at trial were
    Arthur, Gino and Tony. The trial judge reviewed the evidence of each at some
    length. She gave detailed reasons for her acceptance of Gino and Tonys evidence
    and her conclusion that from the beginning it was intended that they were
    partners in and co-owners of the [permit]. She made comprehensive findings
    based on a thorough review of all the evidence. The evidence supported her
    conclusion that Arthur held the permit in trust for himself and the respondents
    as beneficial owners. Deference is owed to her findings of fact.

[13]

The
    trial judges findings support the existence of a trust. She found that the
    permit was in Arthurs name because the government at the time of issuance
    would not permit it to be put into more than one name. She also found that Arthur,
    Gino and Tony had all contributed to the property, that all costs of the
    property were shared three ways, and the three of them discussed and agreed on
    any improvements to the property. Once it was permitted by the government to do
    so, they agreed to put the permit in their three names and Arthur wrote to the
    government asking for this change. All three referred to themselves as owners
    of the property, are named insureds on the insurance for the property, and had
    use of the property without asking Arthur for permission. Until 2016, Arthur
    never asserted ownership of the property to the exclusion of Tony and Gino.

[14]

All
    the trial judges findings were open to her. Her findings support her
    conclusion that Arthur held the permit in trust for himself, Tony and Gino. Arthur
    has not persuaded us that the trial judge made any error in her findings and
    analysis. We see no basis to intervene.

DISPOSITION

[15]

For
    these reasons, we dismissed the appeal.

[16]

The
    respondents are entitled to their costs from the appellant in the agreed upon amount
    of $6,000, inclusive of disbursements and applicable taxes.

G.R. Strathy C.J.O.

L.B. Roberts J.A.

L. Sossin J.A.


