Rarotonga, 2010

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Civil and Administrative
Litigation Opinions
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Contracts - Statute of Frauds

. Soleimani v Karimi

In Soleimani v Karimi (Div Court, 2023) the Divisional Court considered whether an 'oral trust agreement' could survive ss.9 ['Declarations or creations of trusts of land to be in writing'] and 10 ['Exception of trusts arising, transferred, or extinguished by implication of law'] of the Statute of Frauds (it couldn't):
[9] The motion judge then went on to assess the evidence in support of an oral trust agreement between Leila (the trust beneficiary under the written Declaration of Trust) and the appellant (Decision, paras. 41-45) and found that the appellant did not provide sufficient evidence to raise a triable issue of the alleged oral trust agreement. The motion judge then went on to find that, in any event, the alleged oral trust agreement was inconsistent with ss. 9 and 10 of the Statute of Frauds, RSO 1990, c. S.19 (Decision, paras. 47-50). I see no reversible legal error in this conclusion.
. Palkowski v Ivancic

In Palkowski v. Ivancic (Ont Sup Ct, 2006) the court discusses where the Statute of Frauds requirement, that certain agreements be in writing, is excepted on equitable grounds:
[13] The Defendant submits, and counsel for the plaintiffs concedes, that pursuant to the Statute of Frauds, R.S.O. 1990, c.s.19, ss. 1 and 9, neither an agreement to re-convey land nor a trust in respect of land is enforceable unless in writing. Counsel for the plaintiff also concedes that the reference to the “verbal” trust agreement in the statement of claim is a reference to an oral trust agreement.

[14] The parties also agree that although the Statue of Frauds precludes a party from enforcing an oral contract at law, the party may succeed in equity if he can bring himself within the doctrine of part performance.

[15] The parties differ as to what the plaintiff must make out to establish part performance.

[16] The defendant submits, citing The Neighbourhoods of Cornell Inv. v. 1440106 Ontario Inc., [2003] O.J. No. 2919, at para. 69 (Sup. Ct.), Greenspoon v. Tsambalieros, [1998] O.J. No. 2442, at para. 29, (Gen. Div.) and Halko v. Riel, [2004] S.J. No. 189 (Sask. Q. B.), that for the doctrine of part performance to apply, the following requirements must be satisfied:

(i) the performance must be referable to the contract unequivocally;

(ii) the acts of part performance must be those of the parties relying on it;

(iii) the contract in question must be one which, if properly evidenced in writing would be specifically enforceable; and

(iv) there must be clear and proper evidence, oral or written, of the existence of a contract for the doctrine cannot be used to create a contract where none exists.

Counsel for the plaintiffs does not dispute requirements (ii), (iii) and (iv), as stated by the defendant. However, with respect to requirement (i), he submits that the acts of part performance need not be referable to the contract as alleged and to no other title, as the defendant argues is the case. The defendant says that all that is necessary is that the acts be unequivocally referable to a contract with respect to the property at issue.


Analysis and Conclusion

[22] The Neighbourhoods of Cornell case on which the defendants rely in turn relied on the Supreme Court of Canada’s decision in Deglman v. Brunet Estate, 1954 CanLII 2 (SCC), [1954] S.C.R. 725, and the old English case of Alderson v. Maddison (1883), 8 App. Cas. 467 (U.K.H.L.) considered by the Supreme Court of Canada. In Deglman, the plaintiff alleged that his aunt had agreed to bequeath him one of the two houses she owned if he would be good to her and do such services as she might from time to time request during her lifetime. The Supreme Court held that acts of the plaintiff in taking his aunt about in her own or his automobile on trips to Montreal and elsewhere, and on pleasure drives, of doing odd jobs about two houses owned by the aunt, and of various accommodations such as errands and minor services for her personal needs were not unequivocally and in their own nature referable to any dealing with the house that he alleged his aunt had agreed to bequeath to him. The Supreme Court interpreted Maddison v. Alderson, which held that the, “acts relied upon must be unequivocally, and in their own nature, referable to some such agreement as that alleged” as requiring acts unequivocally referable in their own nature to some dealing with the land which is alleged to have been the subject matter of the agreement. It is not clear to me on the authorities that the defendant relies that the Supreme Court has gone as far as requiring that the acts be unequivocally referable to the particular contract with respect to the property alleged by the plaintiff, or even a contract of the type alleged by the plaintiff. I have not asked counsel for further submissions on this issue because it does not affect the outcome of this motion.

[23] Assuming but not determining that the acts relied upon need only be referable to some dealing with the land in issue, it is not “plain and obvious” that paragraphs 7, 8 and 9 of the statement of claim fail to satisfy requirement (i) of the doctrine of part performance, and that the plaintiffs accordingly have no chance of success.

[24] In McPherson v. L’ Hirondelle, supra, the Supreme Court of Canada upheld the finding of the trial judge and the Court of Appeal that there was no consideration for the contract to transfer an interest in land that was alleged. While McPherson v. L’Hirondelle was not a pleadings case, for the contract alleged by the plaintiffs in this case to be enforceable, there must be consideration for the contract. No such consideration is pled.

[25] For this reason alone, it is plain and obvious that the statement of claim does not satisfy the requirements of the doctrine of part performance, and therefore that as pled the plaintiffs’ claim has no chance of success.


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Last modified: 12-07-23
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