“In the proceedings before me, there was relatively little attention paid to principles, concepts and/or doctrines of substantive law that might provide a mechanism for the various forms of relief claimed by the plaintiff. In that regard:
a. As noted above, the plaintiff’s statement of claim and notice of motion relating to summary judgment made passing reference to the concepts of constructive trust, resulting trust and promissory estoppel, as well as oblique references to the concept of unjust enrichment; i.e., by references to alleged enrichment of the defendants and a corresponding detriment to the plaintiff for which there was said to be no juristic reason.
b. The facta filed on behalf of the plaintiff and Kimberly Elg made more explicit reference to the concept of unjust enrichment, albeit with relatively brief comments noting certain general principles addressed by authorities such as Pettkus v. Becker, [1980] 2 S.C.R. 269, and Sorochan v. Sorochan, 1986 CanLII 23 (SCC), [1986] 2 S.C.R. 38.
c. The parties otherwise were content to focus on underlying factual issues, suggesting that there was little or no dispute in relation to the substantive law that might apply in this case.
For the sake of clarity, (and perhaps for the benefit of the parties), I nevertheless will note my independent familiarity with those potentially relevant principles of substantive law, as week as other related principles, which include the following:
a. Oral agreements relating to land may be enforced by the court despite their never having been reduced to writing. That equitable doctrine was developed to avoid the unjust consequences which otherwise might flow from rigid application of legislation such as the Statute of Frauds, R.S.O. 1990, c.S.19, which imposed written requirements on the creation of interests and rights relating to land. In particular:
The Court of Equity has, from a very early period, decided that even an Act of Parliament shall not be used as an instrument of fraud; and if in the machinery of perpetrating a fraud an Act of Parliament intervenes, the Court of Equity, it is true, does not set aside the Act of Parliament, but it fastens on the individual who gets title under that Act, and imposes upon him a personal obligation, because he applies the Act as an instrument accomplishing fraud: See McCormick v. Grogan (1869), L.R. 4 H.L. 82 (H.L.), at p.97, quoted with approval by our Court of appeal in Re Golden, 2003 CanLII 4764 (ON CA), [2003] O.J. No. 2778 (C.A.), at paragraph 35.
b. One manifestation of that general equitable doctrine is the more specific equitable “doctrine of part performance”, through which equity can and will hold an ostensible owner of land to an oral promise that another party would acquire a beneficial interest in that land if that other party performed specified acts or obligations, and that other party has fulfilled his or her part of the arrangement. In that regard:
i. The genesis and nature of the doctrine of part performance were explained by the House of Lords in the following terms, in Steadman v. Steadman, [1976] A.C. 536 (H.L.), at p.558, quoted with approval by the Supreme Court of Canada in Hill v. Nova Scotia (Attorney General), 1997 CanLII 401 (SCC), [1997] 1 S.C.R. 69, at paragraph 10:
[The doctrine] was evoked when, almost from the moment of passing of the Statute of Frauds, it was appreciated that it was being used for a variant of unconscionable dealing, which the statute itself was designed to remedy. A party to an oral contract for the disposition of an interest in land could, despite performance of the reciprocal terms by the other party, by virtue of the statute disclaim liability for his own performance on the ground that the contract had not been in writing. Common Law was helpless. But Equity, with its purpose of vindicating good faith, and with its remedies of injunction and specific performance, could deal with the situation. The Statute of Frauds did not make such contracts void but merely unenforceable; and if the statute was to be relied upon as a defence, it had to be specifically pleaded. Where, therefore, a party to a contract unenforceable under the Statute of Frauds stood by while the other party acted to his detriment in performance of his own contractual obligations, the first party would be precluded by the Court of Chancery from claiming exoneration, on the ground that the contract was unenforceable, from performance of his reciprocal obligations; and the court would, if required, decree specific performance of the contract. Equity would not, as it was put, allow the Statute of Frauds “to be used as an engine of fraud”. This became known as the doctrine of part performance – the “part” performance being that of the party who had, to the knowledge of the other party, acted to his detriment in carrying out irremediably his own obligations (or some significant part of them) under the otherwise unenforceable contract.
ii. In Canada, the view which has won the repeated support of the Supreme Court of Canada is that such unwritten agreements relating to land will be enforced if a claimant can demonstrate acts of part performance “unequivocally, and in their own nature, referable to some such agreement as that alleged”: See, for example: McNeil v. Corbett(1907), 1907 CanLII 45 (SCC), 39 S.C.R. 608; Deglman v. Guaranty Trust Co., 1954 CanLII 2 (SCC), [1954] S.C.R. 725; Brownscombe v. Public Trustee (Administrator of Vercamert Estate), 1969 CanLII 86 (SCC), [1969] S.C.R. 658; and Thompson v. Guaranty Trust Co., 1973 CanLII 161 (SCC), [1974] S.C.R. 1023.
c. Another manifestation of such equitable intervention to prevent injustice is the court’s recognition of circumstances giving rise to enforceable rights through the concept or doctrine of “proprietary estoppel”, so as to prevent and redress any unconscionable conduct on the part of a landowner. In that regard:
i. While proprietary estoppel is a form of promissory estoppel, and it commonly is supposed that estoppel cannot give rise to a cause of action, proprietary estoppel is an exception to that rule.
ii. The exception was articulated by Lord Denning in Crabb v. Arun District Council(1975), 1 Ch. 179 (Eng.C.A.), and accepted by our Court of Appeal in authorities such as Eberts v. Carleton Condominium No. 396, 2000 CanLII 16889 (ON CA), [2000] O.J. No. 3773 (C.A.), and Schwark v. Cutting, 2010 ONCA 61.
iii. Pursuant to the doctrine of proprietary estoppel, an equity arises in circumstances where three essential elements are established:
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- an owner of land induces, encourages or allows a claimant to believe that he or she has or will enjoy some right or benefit over the owner’s property;
- relying upon that belief, the claimant acts to his or her detriment, to the knowledge of the owner; and
- the owner then seeks to take unconscionable advantage of the claimant by denying him or her the right or benefit which he or she expected to receive.
d. The doctrines of part performance and proprietary estoppel are nevertheless only two manifestations of the court’s wider equitable jurisdiction, (repeatedly confirmed and refined by the Supreme Court of Canada), to grant relief pursuant to the modern principle of “unjust enrichment”; i.e., in circumstances where a claimant is able to prove enrichment of another party, and a corresponding deprivation of the claimant, with no juristic reason for the enrichment. In such circumstances, a successful claimant may be entitled to a monetary remedy or a proprietary remedy, including imposition of a constructive trust: See, for example: Pettkus v. Becker, supra; Sorochan v. Sorochan, supra; Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574; Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980; and Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 S.C.R. 269. Although the jurisprudence emphasizes that courts seeking to remedy such unjust enrichment should first consider whether a monetary award is sufficient, it also makes clear that the remedy of a proprietary constructive trust may be necessary and appropriate in certain circumstances. For example, in Kerr v. Baranow, supra, at paragraph 50, Justice Cromwell said this:
The Court has recognized that, in some cases, when a monetary award is inappropriate or insufficient, a proprietary remedy may be required. Pettkus is responsible for an important remedial feature of the Canadian law of unjust enrichment: the development of the remedial constructive trust. Imposed without reference to intention to create a trust, the constructive trust is a broad and flexible equitable tool used to determine beneficial entitlement to property. … Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour. … The equitable principle on which the remedy of constructive trusts rests is broad and general; its purpose is to prevent unjust enrichment in whatever circumstances it occurs.
[Emphasis added.]
e. Our courts unquestionably also have jurisdiction to declare and enforce “resulting trust” arrangements, whereby an ostensible owner of property is required to hold the beneficial interest in that property for another. In that regard:
i. The circumstances giving rise to enforceable “resulting trusts” are varied, and many, (such as “automatic resulting trusts” and “voluntary transfer resulting trusts”), seem clearly irrelevant and inapplicable to the situation at hand; e.g., insofar as there is no suggestion that the plaintiff was the owner of the disputed property prior to the defendants taking title to the disputed property when it was acquired in 2015.
ii. At most, the plaintiff’s alternative claim to a “resulting trust” in this case seems based on a suggestion that the situation might fall within the court’s recognized jurisdiction to enforce “purchase money resulting trusts”; i.e., a jurisdiction exercised to prevent injustice in situations where a claimant has paid the purchase price for a property, but for some reason has directed that title to the property be registered or taken in another person’s name. Equity regards such circumstances as giving rise to a rebuttable presumption that the party supplying the purchase money intended to acquire and retain beneficial ownership of the purchased property, despite the arrangements made in relation to the holding of legal title; i.e., a rebuttable presumption that the holder of the legal title was intended to hold the beneficial interest in the property in trust for the party who supplied the relevant purchase money: See A. Oosterhoff and E. Gillese, Text, Commentary and Cases on Trusts, 4thed., (Scarborough, Carswell, 1992), at pp. 306-307.
iii. However, the rebuttable presumption of a purchase money resulting trust self-evidently arises only in circumstances where the claimant is shown to have supplied the purchase money for the property at the time of its acquisition. In particular, situations giving rise to a rebuttable presumption of a purchase money resulting trust must be distinguished from those in which a party supplies the purchase money and takes title for himself or herself, but has made an agreement to transfer the property to another if and when that other person pays the purchase price. The latter situation does not involve a purchase money resulting trust, or give rise to the original purchaser being characterized as a resulting trustee, although it may lead to the original purchaser being obliged to hold the property on an express trust or constructive trust for the party who was promised the property on payment of the purchase price. See Brown v. Storoschuk, 1946 CanLII 259 (BC CA), [1946] 3 W.W.R. 641 (B.C.C.A.), and Oosterhoff and Gillese, supra, at pp. 308-309. Even then, it also must be shown that the claimant in fact supplied the purchase money qua purchaser; e.g., as opposed to providing the purchase money as a gift or loan: Ibid, at pp.307-308.”
Elg v. Elg, et al., 2025 ONSC 82 (CanLII) at 26-27
