Evidence established that whether plaintiff had interest in property was a triable issue

Trust. Plaintiff asserted he advanced funds to defendant for purchase of properties, which defendant held for him under secret, express, silent trust, or that plaintiff was beneficial owner and relied on defendant’s assurances that properties would be transferred back to him. Plaintiff asserted purpose of trust was to protect plaintiff from fraudster who brought action against him. Defendant denied plaintiff’s assertions and advance of funds. Parties were previously good friends and were experienced in business and real estate. Properties were vacant lots in process of being developed as residential lots. Parties’ friendship ended and defendant listed properties for sale without plaintiff’s consent and with intention of keeping all proceeds. Plaintiff brought motion for certificate of pending litigation against lots in question. Motion granted. Plaintiff’s statement of claim included claim for certificate of pending litigation, and motion was argued with notice to defendants. Evidentiary record established triable issue with respect to whether plaintiff had interest in property. Plaintiff’s affidavit was clear about advancement of funds and purpose of transactions. Significant amounts were at stake; properties were previously appraised at $660,000 and likely worth more currently. Plaintiff had supporting affidavit evidence from witness who said he was present when plaintiff advanced funds to defendant, and plaintiff’s former solicitor was said to be aware of trust arrangement. Plaintiff’s affidavit contained significant emails exchanged by parties, some of which suggested acknowledgment by defendant that plaintiff had interest in property.

Halliday v. Bromley (2019), 2019 CarswellOnt 5940, 2019 ONSC 1670, Helen MacLeod-Beliveau J. (Ont. S.C.J.).

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