



COURT OF APPEAL FOR ONTARIO

CITATION: Toor v. Toor, 2018 ONCA 621

DATE: 20180710

DOCKET: C64866

Feldman, Hourigan and Brown JJ.A.

BETWEEN

Kamaljit Kaur Toor

Applicant (Respondent)

and

Balwinder Singh Toor,
Amrik
    Toor and Amarjit Toor

Respondents
    (Appellants)

AND BETWEEN

Amrik Toor and Amarjit
    Toor

Plaintiffs (Appellants)

and

Balwinder Toor and
    Kamaljit Toor

Defendants (Respondents)

James S.G. Macdonald, for the appellants

Bhupinder Nagra, for the respondent

Heard: July 6, 2018

On appeal from the order of Justice M.G. Emery of the Superior
    Court of Justice, dated December 22, 2017.

REASONS FOR DECISION

[1]

Kamaljit Kaur Toor and Balwinder Singh Toor were married in 2002.

[2]

On August 31, 2012 they purchased a matrimonial home in Brampton (the
    Property). Title was registered in their names as joint owners.

[3]

They separated in early 2015.

[4]

Following their separation, Kamaljit commenced family law proceedings.
    As well, Balwinders parents, Amrik Toor and Amarjit Toor (the Parents),
    commenced a civil suit against their son and daughter-in-law seeking payment of
    $132,000, which they alleged they had loaned Balwinder and Kamaljit. The
    Parents also sought a declaration that they are the beneficial owners of a
    joint interest in the Property because Balwinder and Kamaljit had used some of
    the loaned funds to purchase the Property. The Parents action was consolidated
    with the family law proceedings.

[5]

Balwinder did not defend against his Parents claim. Default judgment was
    granted against him.

[6]

Kamaljit moved for summary judgment dismissing the Parents action.

[7]

The motion judge granted partial summary judgment. He concluded that he
    could not resolve the Parents claim for repayment of the $132,000 as there was
    a genuine issue requiring a trial as to whether those advances constituted a
    loan or a repayment to Balwinder of the proceeds of sale of a property in his
    name in India.

[8]

However, the motion judge granted summary judgment dismissing the
    Parents claim for an interest in the Property. He gave two reasons for his
    decision. First, there was no tie that binds the advances and the purchase of
    the Property together to create a constructive trust. Second, he found there
    was no evidence that any of the $132,000 was a loan or advance with an
    expectation of repayment.

[9]

The Parents appeal the dismissal of their claim for an interest in the
    Property. They seek an order dismissing Kamaljits summary judgment motion,
    leaving for trial the issues about the nature and use of the $132,000,
    including their claim for an interest in the Property.

[10]

Notwithstanding
    the deference owed to the motion judges determination to grant summary
    judgment, we conclude that he made two reversible errors that require setting
    aside the grant of partial summary judgment:
Hryniak v. Mauldin
, 2014
    SCC 7, at para. 81.

[11]

First,
    the motion judges finding that there was no tie that binds the advances and
    the purchase of the Property together was based on a misapprehension of the
    evidence. The record discloses a link between some of the Parents advances and
    the purchase of the Property.

[12]

Between
    June 4, 2012 and August 13, 2012, the Parents wrote cheques totalling $47,000
    to Balwinder, which he deposited into one of his accounts. The account records
    show that those deposits, together with some others, accumulated so that by
    August 29, 2012 the account balance amounted to $101,347.37. On that day, there
    was a withdrawal from the account of $101,377.11. On her cross-examination, Kamaljit
    admitted that the withdrawal was used to purchase the Property. A genuine issue
    requiring a trial therefore exists as to whether that use of the funds originating
    from the Parents gives rise to any legal entitlement by them to an interest in
    the Property.

[13]

Second,
    on their face, the motion judges reasons are internally inconsistent on the
    issue of the legal characterization of the Parents advances.

[14]

On
    the one hand, the motion judge stated he could not resolve the issue of whether
    the $132,000 advanced by the Parents to Balwinder constituted a loan or a
    repayment of proceeds from the sale of the Indian property. The motion judge left
    that issue for trial.

[15]

Yet,
    on the other hand, in granting Kamaljit partial summary judgment the motion
    judge concluded that there was no evidence that any of the $132,000 was a loan
    or an advance with an expectation of repayment. Those two findings cannot be
    reconciled. By granting partial summary judgment, the motion judge created the
    real possibility of inconsistent results with respect to the legal consequences
    of the $132,000, ignoring the strong caution issued by this court about
    granting partial summary judgment where such a risk exists:
Butera v.
    Chown, Cairns LLP
, 2017 ONCA 783, at para. 26. A genuine issue requiring a
    trial exists as to the legal characterization of the $132,000.

[16]

Accordingly,
    we allow the appeal and set aside the order granting partial summary judgment.

[17]

We
    fix the costs of the appeal at $6,000, inclusive of disbursements and
    applicable taxes. The costs of the appeal shall be payable in the cause of the
    Parents civil proceeding.

[18]

The
    motion judge did not order any costs of the motion below. We leave the costs of
    the preparation for the summary judgment motion to the trial judge as part of
    the trial cost award.

[19]

We
    would strongly encourage the parties to request the appointment of a case
    management judge for both the family law and civil proceedings.

K. Feldman J.A.

C.W. Hourigan J.A.

David
    Brown J.A.


