“Section 2 of the Partition Act provides that all joint tenants may be compelled to sell the land. Where the property in question is not a matrimonial home, there is a narrow standard for the exercise of the court’s discretion to refuse the prima facie right of a joint owner to partition and sale.
The standard for the exercise of the court’s discretion has been stated by the Ontario Court of Appeal in Latcham v. Latcham, [2002] O.J. No. 2126 (Ont. C.A.), namely, that to deny an application for sale, the party seeking the sale must be guilty of malicious, vexatious or oppressive conduct.
In Greenbanktree Power Corp. v. Coinmatic Canada Inc., 2004 CanLII 48652 (ON CA), [2004] O.J. No. 5158, at para. 1, the Court of Appeal confirmed that Latcham set out the appropriate test. At para. 2, the Court of Appeal stated:
Co-tenants should only be deprived of this statutory right in the limited circumstances described above, with this caveat. In our view, “oppression” properly includes hardship, and a judge can refuse partition and sale because hardship to the co-tenant resisting the application would be of such a nature as to amount to oppression.
In Akman v. Burshtein, 2009 CanLII 16574 (Ont. S.C.J.), at para. 38, Ferrier J. held:
Any allegation of malicious, vexatious, or oppressive conduct should relate to the partition and sale issue itself. Specifically, it is necessary to look at the reasonableness of the positions taken by the parties as it relates to the application for partition and sale. Osborne v. Myette, 2004 Carswell Ont. 3331 (S.C.J.) at para. 12.”