



COURT OF APPEAL FOR ONTARIO

CITATION: Styres v. Martin, 2018 ONCA 956

DATE: 20181129

DOCKET: C64646

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

BETWEEN

Mark Styres

Appellant

and

Alison Martin and Janet Frazer, by her Estate
    Administrator, Cyril Frazer

Respondents

Gerry Smits, for the Appellant

Howard E. Staats, Q.C., for the Respondents

Heard: November 23, 2018

On appeal from the judgment of Justice Patrick J. Flynn of
    the Superior Court of Justice dated November 3, 2017.

REASONS FOR
    DECISION

[1]

The appellant appeals from the dismissal of his action claiming damages
    arising from the disposition of a house which he had transferred to the
    respondent, Alison Martin, his former common law spouse, in 2004. He asks that
    the judgment be set aside and that he be awarded damages in the amount of
    $150,000, or, in the alternative, that a new trial be ordered.

[2]

The appellant had lived in the house for 20 years. His father had given
    him the land on which he built the house.

[3]

In 1998, the appellant suffered a catastrophic brain injury as a result
    of a motor vehicle accident and became unable to work.

[4]

The appellant began a relationship with the respondent in about 2000.
    She became his caregiver and in January 2002, he signed a Power of Attorney for
    Personal Care and for Property, naming her as his attorney. On February 13,
    2004, he transferred the house to her. The respondent paid off the appellants
    $32,007 mortgage on February 13, 2004, the day of the transfer. The mortgage
    had to be paid off in order for the transfer to be registered. The parties did
    not have legal advice or assistance in preparing and registering the transfer.

[5]

On December 23, 2009, the respondent granted a mortgage on the house to
    her mother, to secure a loan to her in the amount of $200,000.

[6]

The parties separated in about 2013. The appellant requested that the respondent
    reconvey title of the house to him. She declined and shortly thereafter transferred
    the house to her mother, the defendant Janet Frazer, in satisfaction of the
    mortgage that had come due in 2012.  After her mothers death in 2015, her
    estate sold the house for $300,000.
[1]

[7]

At trial, the appellant asserted claims for damages, breach of trust,
    breach of fiduciary duty and unjust enrichment. The evidence at trial focused
    on the parties explanations for the transfer of the house to the respondent in
    2004.

[8]

The appellant alleged that he had temporarily transferred the house to the
    respondent in trust to avoid its potential seizure because of
Excise Act
charges against him for his involvement in selling unmarked cigarettes. The
    trial judge preferred the evidence of the respondent and her daughter that the
    house was a gift to her from the appellant.

[9]

In brief reasons, the trial judge rejected the appellants explanation
    for the transfer and accepted the respondents. He found that that the
    respondent was generous and kind to the appellant, gave him the proceeds of her
    caregiver cheques amounting to a couple of thousand dollars, purchased vehicles
    which he used, and helped him with child support and various bills, household
    expenses and utilities. He concluded that this was hardly predatory conduct of
    one person taking advantage of another vulnerable one. He determined that
    there was no trust regarding the house without a written instrument in accordance
    with the
Statute of Frauds
, R.S.O. 1990, c. S.19.

[10]

The
    trial judge rejected the evidence of the appellants appraisal expert
    concerning the value of the house and found that the appellant would not be entitled
    to
any
damages if successful. He awarded costs of
    $30,000 to the respondent and $15,000 to the estate of her mother.

[11]

The
    appellant submits that the trial judge erred by failing to consider or address
    the various claims for breaches of trust and fiduciary duty, and unjust
    enrichment. He submits that the trial judges reasons are deficient and
    preclude meaningful appellate review.

[12]

We
    agree. The appeal must be allowed and a new trial ordered.

[13]

This
    was a case of a disabled man, with a catastrophic brain injury and admitted
    cognitive difficulties, conveying his only significant asset to his caregiver and
    common law partner, who also held his power of attorney. He had no legal
    advice, let alone independent legal advice.

[14]

While
    the trial judge was entitled to prefer the evidence of the respondent in
    relation to the reason for the transfer and to find a gift, those findings were
    not the end of the necessary analysis. The trial judge was required to address the
    issues that arose from the appellants pleaded claims for breaches of trust and
    fiduciary duty, and unjust enrichment.

[15]

In
    dismissing the trust claims, the trial judge simply said:

Weve heard argument about a trust relationship, but there was
    no trust. Here were dealing with real property. The
Statute
    of Frauds would require a written instrument.


[16]

The
    absence of writing would, of course, be no answer to a claim of resulting trust
    nor would it have any relevance to a claim for breach of trust or breach of
    fiduciary duty.

[17]

Insufficient
    reasons that prevent meaningful appellate review constitute an error of law,
    reviewable on a correctness standard:
Maple Ridge Community Management Ltd.
    v. Peel Condominium Corporation No. 231
, 2015 ONCA 520, at para. 22. In
    our view, the deficiency of the trial judges reasons precludes meaningful
    appellate review.

[18]

Unfortunately,
    we are unable on the basis of the record before us to make the determinations
    necessary to dispose of the issues that the trial judge failed to address. A
    new trial is required.

Disposition
:

[19]

Accordingly,
    the appeal is allowed and the matter is remitted to the Superior Court of
    Justice for a new trial on all issues before a different judge.

[20]

The
    appellant abandoned the appeal against the estate of Janet Frazer and it is
    therefore dismissed.

[21]

The
    appellant is entitled to his costs of the appeal from the respondent on the
    appeal in the agreed upon amount of $6,500, inclusive of disbursements and
    taxes. The respondent estate is entitled to its costs from the appellant in the
    amount of $2,500, inclusive of disbursements and taxes.

[22]

Given
    the appellants success on appeal, we set aside the award of trial costs in the
    amount of $30,000 to the respondent. As we direct that there be a new trial, we
    decline to award the appellant his costs of the first trial.

G.R. Strathy
    C.J.O.

M.L. Benotto
    J.A.

L.B. Roberts
    J.A.





[1]

The claim against the estate was dismissed by non suit at the
    conclusion of the appellants case at trial. The appeal of that order was
    abandoned.


