



COURT OF APPEAL FOR ONTARIO

CITATION: Inniss v. Blackett, 2022 ONCA 166

DATE: 20220224

DOCKET: C68681

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

BETWEEN

Paul Inniss

Plaintiff (Respondent)

and

Celestine Blackett

Defendant (Appellant)

Edward J. Babin and Brendan Monahan,
    for the appellant

Yan David Payne and James R. D. Clark,
    for the respondent

Heard: February 18, 2022 by
    video conference

On appeal from the judgment of Justice Mario D. Faieta of the
    Superior Court of Justice, dated July 6, 2020.

REASONS FOR DECISION

OVERVIEW

[1]

This appeal arises from a dispute over the
    ownership of a property as between the respondent, Paul Inniss, and his grandmother,
    the appellant, Celestine Blackett.

[2]

In 2002, following the purchase of the house at 470
    Donlands Ave. in Toronto (the house), both parties were listed on title as
    joint tenants. The parties lived in the house between 2002 and 2008. In 2008, the
    relationship between the parties deteriorated, and the respondent moved out of
    the house.

[3]

On March 1, 2016, the respondent brought this
    action for partition and sale. The appellant defended against the action and
    counterclaimed on the basis that the home was always hers alone.

[4]

The trial judge accepted the respondents
    evidence over the appellants evidence with respect to the shared nature of
    contributions to the purchase, mortgage and maintenance of the house during the
    period the parties lived there together.

[5]

The trial judge also accepted that the
    respondents attempt to sell his interest in the property was reasonable and
    rejected the appellants evidence that a sale of the property would result in
    hardship.

[6]

The trial judge found that the appellants contribution
    was greater than that of the respondent (with the appellant holding an 89.93%
    interest in the house and the respondent holding the remaining 10.17%). The
    trial judge provided the appellant with an opportunity to buy out the
    respondent or else the property could be sold pursuant to s. 2 of the
Partition
    Act,
R.S.O. 1990, c. P.4.

[7]

On October 6, 2020, the appellant filed her
    notice of appeal.

[8]

We dismissed the appeal at the hearing with
    reasons to follow. These are those reasons.

ANALYSIS

[9]

The appellant raises four grounds of appeal:

1)

The trial judge failed to find that the respondents
    interest in the house is subject to a resulting trust (or, alternatively, a constructive
    trust) in favour of the appellant;

2)

The trial judge erred by finding that the
    respondent contributed $51,200 towards the carrying costs of the house and that
    such contributions entitled him to a beneficial ownership interest in the house;

3)

The trial judge erred by finding that the house
    should be sold pursuant to s. 2 of the
Partition Act
; and

4)

The trial judge erred in awarding trial costs to
    the respondent.

[10]

We address each ground of appeal below.

[11]

Before turning to the grounds of appeal,
    however, it is important to emphasize the standard of review. This case
    involves findings of fact and findings of mixed fact and law. These findings
    are entitled to deference, absent a palpable and overriding error:
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10.

The trial judge did not err in rejecting that the
    respondents interest in the house is subject to a resulting or constructive
    trust

[12]

Applying the principles set out by the Supreme
    Court in
Pecore v. Pecore
, 2017 SCC 17, the trial judge rejected the
    argument that a presumption of a resulting trust applied in these circumstances,
    as he found that the respondent gave value for the property. The trial judge
    found that the respondent paid $3,275.13 toward the closing costs of the house.
    The respondent also contributed to the purchase by becoming liable on the
    mortgage.

[13]

The appellant argues that the payments toward
    the closing costs and becoming a co-signatory to the mortgage were insufficient
    to meet the threshold of adding value to the property for purposes of the
    resulting trust analysis, citing
Karen Patterson et al. v. Nadeen Patterson
    and The Estate of Barbara Patrick
, 2018 ONSC 6884, at para. 49. We do not
    accept this submission. Taken together in the context of the house purchase,
    both the respondents contribution to the closing costs and assumption of risk
    in co-signing the mortgage made the house purchase possible. As the trial judge
    concluded, the parties each played a necessary role in making their shared goal
    of home ownership possible: at para. 64.

[14]

The appellant also argues no financial
    contributions to the closing costs by the respondent were documented and that
    corroborating evidence is required to rebut a presumption of a resulting trust.

[15]

The trial judge preferred the evidence of the
    respondent to the evidence of the appellant. The trial judges factual findings
    include findings of credibility. The trial judge stated, at para. 65, The Defendants
    evidence was wildly inconsistent, self-serving and simply not credible.

[16]

The finding that the presumption of a resulting
    trust did not apply was available to the trial judge on the record. The trial
    judge considered the respondents testimony in the context of his bank
    statements and other evidence.

[17]

The trial judge similarly rejected the argument
    that a constructive trust had been established. He found no basis for the
    appellants unjust enrichment claim.

[18]

We see no error in these findings by the trial
    judge.

The trial judge did not err by finding that the respondents
    contributions toward the carrying costs of the house entitled him to an
    ownership interest

[19]

The trial judge made a finding of fact that the
    respondent contributed $800 per month toward the mortgage payments and
    maintenance of the house during a 64-month period, for a total of $51,200. As a
    result, the trial judge calculated that the respondent was entitled to a 10.17%
    interest in the house.

[20]

The trial judge conceded that there was a dearth
    of evidence to support these payments by the respondent but concluded that it
    would not have been possible for the appellant to carry the house over this
    period without the respondents assistance.

[21]

The appellant argues there was indeed an
    alternative explanation for how the appellant could meet her financial
    obligations.

[22]

Again, the trial judges finding was open to him
    on the record and is entitled to deference. There is no basis to interfere with
    this finding.

The trial judge did not err in ordering that the house
    should be sold by virtue of the
Partition Act

[23]

Joint tenants have a
prima facie
right
    to force a sale of a property under s. 2 of the
Partition Act
:
Davis
    v. Davis
, [1954] O.R. 23 (C.A.), at p. 29. The onus is on the party
    resisting the sale of the property to demonstrate that the property should not
    be sold. To exercise its discretion not to approve a sale, a court must be
    satisfied that the party seeking the sale is acting in a malicious, vexatious
    or oppressive fashion:
Brienza v. Brienza
, 2014 ONSC 6942, at para. 25.

[24]

The trial judge concluded that the respondents desire
    to sell his interest in the house was reasonable and was not malicious,
    vexatious or oppressive. The trial judge also rejected the appellants argument
    that her age and illness justified refusing the partition and sale.

[25]

The trial judge did not err in ordering the sale
    of the house if the appellant is unable or unwilling to purchase the
    respondents interest.

The trial judge did not err in awarding costs to the
    respondent

[26]

The trial judge found the respondent to be the
    successful party at trial and we would not interfere with this determination.

[27]

The plaintiffs actual costs were close to
    $70,000, and, inclusive of taxes and disbursements, his costs were nearly
    $85,000.

[28]

In the context of this four-day trial, the trial
    judge found a costs award against the appellant of $35,000 to be reasonable,
    proportionate and fair.

[29]

This issue was not pursued in oral argument by
    the appellant, but, in any event, we see no basis to interfere with the trial
    judges exercise of discretion with respect to costs.

DISPOSITION

[30]

For these reasons, the appeal was dismissed.

[31]

The respondent is entitled to his costs, which
    are set at $9,500, all-inclusive.

G.R.
    Strathy C.J.O.

L.B.
    Roberts J.A.

L.
Sossin J.A.


