



COURT OF APPEAL FOR ONTARIO

CITATION: Stetler v. Stetler, 2016 ONCA 218

DATE: 20160317

DOCKET: C60610

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

BETWEEN

Wyatt Gordon Stetler

Appellant

and

Connie Christine Stetler

Respondent

James A. Brown, for the appellant

Paul D. Amey, for the respondent

Heard: March 14, 2016

On appeal from the order of Justice Donald J. Gordon of
    the Superior Court of Justice, dated May 15, 2015, with reasons reported at
    2015 ONSC 3014, [2015] O.J. No. 2499.

ENDORSEMENT

[1]

In 1999, the appellant loaned $38,550 to his son. The loan was secured
    by a mortgage on the sons home. Many years later, the sons former spouse 
    the respondent  sought to sell the home to satisfy an equalization payment
    owing from their divorce. She sought a declaration that the mortgage in favour
    of the appellant was not binding on her and was not an encumbrance on the
    property.

[2]

The application judge concluded that any claim by the appellant on the
    mortgage was statute barred and that the mortgage was not an encumbrance or
    charge on the property. The appellant seeks to overturn this decision.

[3]

It was agreed before the application judge  and on appeal  that the
    applicable limitation period for the mortgage is ten years, as provided in s.
    23 of the
Real Property Limitations Act
,

R.S.O. 1990, c.
    L-15. The appellant submits, however, that the mortgagor (the respondents
    former husband) had acknowledged the debt. He argues that various
    acknowledgements engaged the exception in s. 23(1) of the Act

and
    extended the limitation period. Section 23(1) provides:

No action shall be brought to recover out of any land
    or rent any sum of money secured by any mortgage or lien, or otherwise charged
    upon or payable out of the land or rent, or to recover any legacy, whether it
    is or is not charged upon land, but within ten years next after a present right
    to receive it accrued to some person capable of giving a discharge for, or
    release of it, unless in the meantime some part of the principal money or some
    interest thereon has been paid,
or some acknowledgment in
    writing of the right thereto signed by the person by whom it is payable, or the
    persons agent, has been given to the person entitled thereto or that persons
    agent, and in such case no action shall be brought but within ten years after
    the payment or acknowledgment,
or the last of the payments or
    acknowledgments if more than one, was made or given. [Emphasis added.]

[4]

The application judge found that none of the documents relied on by the
    appellant met the criteria for a valid acknowledgement. The documents did not accurately
    set out the amount owing and one of the documents post-dated the expiration of
    the limitation period. We see no error in the application judges analysis.

[5]

Before this court, the appellant sought to rely on fresh evidence to
    establish an acknowledgment of the debt within the limitation period. The fresh
    evidence is in the form of a Statutory Declaration by the appellants former
    lawyer; a Mortgage Loan Commitment, mortgage statements signed by the
    appellant, and receipts for two original documents purporting to postpone the
    mortgage dated March 2007 are attached.

[6]

The fresh evidence does not meet the test for admissibility outlined in
R.
    v. Palmer
, [1980] 1 S.C.R. 759. First, the evidence could have been
    adduced at trial. There was an interim order in the application requiring the
    appellant to produce his lawyers file. We were told that these documents were
    not produced due to an administrative oversight. This is not an acceptable
    explanation, particularly in the face of the disclosure order. On this basis
    alone, we would not admit the evidence. Second, the documents do not satisfy
    the criteria in s. 23(1) of the Act. There is no acknowledgement by the
    mortgagor to the appellant that the funds are owed. Therefore, there is no
    reason to conclude that the evidence could reasonably be expected to have
    affected the result.

[7]

The appellant also argues that the application judge erred in not
    applying the doctrine of promissory estoppel. The appellant submits that he
    agreed to postpone his sons obligation to pay the debt if his son helped him
    on his farm. The application judge rejected this submission. He determined that
    the evidence did not establish that there was a promise intended to affect the
    relationship and a corresponding reliance on the promise. It did not meet the
    requirements set out in
Maracle v. Travellers Indemnity Co. of Canada
,
    [1991] 2 S.C.R. 50, at pp. 57-58.

[8]

We see no error in the application judges analysis. Moreover, we
    conclude that the appellants own conduct has disentitled him from claiming an
    equitable remedy. The application judge found that the appellant had acted in
    concert with his son to negatively impact the respondent and to frustrate
    her legitimate right to realize her equalization payment.

[9]

The appeal is dismissed with costs payable to the respondent in the
    amount of $10,500, inclusive of disbursements and HST.

G.R.
    Strathy C.J.O

P.
    Lauwers J.A.

M.L.
    Benotto J.A.


