Hyczkewycz v. Hupe, (2015) 320 Man.R.(2d) 126 (QB)

• Judge: Rempel, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: August 06, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 320 Man.R.(2d) 126 (QB);2015 MBQB 134

Hyczkewycz v. Hupe (2015), 320 Man.R.(2d) 126 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AU.009

Mary Viola Hyczkewycz (plaintiff) v. Sharon Linda Hupe and Paul Hupe (defendants)

(CI 13-01-83581; 2015 MBQB 134)

Indexed As: Hyczkewycz v. Hupe

Manitoba Court of Queen's Bench

Winnipeg Centre

Rempel, J.

August 6, 2015.

Summary:

A husband and wife separated after 37 years of marriage. At issue was the ownership of three properties. The first was a residence that was owned solely by the wife, but had been transferred to the wife by her mother (the plaintiff). The second was a rental property that had been purchased by the plaintiff and had been transferred to the wife and plaintiff as joint tenants. The third was a cottage owned jointly by the husband and wife. The plaintiff claimed that she was entitled to a declaration that she was the sole beneficial owner of the residence and the rental property and that she was a beneficial owner of a 50% interest in the cottage. The husband moved for summary dismissal of the claim.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at (2015), 316 Man.R.(2d) 51, granted the motion. The action was dismissed. The plaintiff appealed.

The Manitoba Court of Queen's Bench allowed the appeal. The husband's application for summary judgment was dismissed.

Equity - Topic 2066

Equitable defences - Laches - Claims under will or trust - [See Trusts - Topic 2144 ].

Real Property - Topic 6090

Title - Extinguishment, prescription and adverse possession - Defences - Laches or delay - [See Trusts - Topic 2144 ].

Real Property - Topic 8014.1

Title - Registration of instruments, etc. - Land titles system - Registration - Property interests held in trust - [See Real Property - Topic 8024 ].

Real Property - Topic 8024

Title - Registration of instruments, etc. - Land titles system - Certificate of title - Reliance on issue of - A husband and wife separated after 37 years of marriage - At issue was the ownership of three properties - The first was a residence that was owned solely by the wife, but had been transferred to the wife by her mother (the plaintiff) - The second was a rental property that had been purchased by the plaintiff and had been transferred to the wife and plaintiff as joint tenants - The third was a cottage owned jointly by the husband and wife - The plaintiff claimed that she was entitled to a declaration that she was the sole beneficial owner of the residence and the rental property and that she was a beneficial owner of a 50% interest in the cottage - A Master summarily dismissed the claim on the basis that a resulting trust could not overcome the indefeasibility provision of s. 59(1) of the Real Property Act - The Manitoba Court of Queen's Bench allowed the plaintiff's appeal - The title created by s. 59 was not iron clad - Section 59 created a statutory presumption as to indefeasibility of title, placing bona fide purchasers for value in a very strong position regarding equitable claims such as a resulting trust - Here, there was credible evidence on which the plaintiff might be able to rebut the statutory presumption of indefeasibility - The presumption of a resulting trust arose because the transfers were made gratuitously to an adult child - The husband had not established a prima facie defence to the resulting trust claim - Summary judgment was not appropriate - See paragraphs 28 to 54.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Real Property - Topic 8024 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Real Property - Topic 8024 ].

Trusts - Topic 1901

Resulting trusts - General principles - General (incl. when available) - [See Real Property - Topic 8024 ].

Trusts - Topic 2044

Resulting trusts - Voluntary property transfers - Presumption of resulting trust - [See Real Property - Topic 8024 ].

Trusts - Topic 2144

Resulting trusts - Intention - Evidence - A husband and wife separated after 37 years of marriage - At issue was the ownership of three properties - The first was a residence that was owned solely by the wife, but had been transferred to the wife by her mother (the plaintiff) - The second was a rental property that had been purchased by the plaintiff and had been transferred to the wife and plaintiff as joint tenants - The third was a cottage owned jointly by the husband and wife - The plaintiff claimed that she was entitled to a declaration that she was the sole beneficial owner of the residence and the rental property and that she was a beneficial owner of a 50% interest in the cottage - The Manitoba Court of Queen's Bench held that the plaintiff's resulting trust claim did not fail because there was no "paper trail" - Evidence of intention did not have to be proven by written documents - Nor did the doctrine of laches bar the claim - The passage of time did not preclude a party from bringing evidence of intention - See paragraphs 46 to 50.

Cases Noticed:

Payne v. Litz (R.) & Sons Co. (2013), 292 Man.R.(2d) 201; 2013 MBQB 121, refd to. [para. 7].

Ehrmantraut (Bankrupt), Re (2008), 229 Man.R.(2d) 157; 2008 MBQB 140, affd. (2008), 231 Man.R.(2d) 176; 437 W.A.C. 176; 2008 MBCA 127, refd to. [para. 12].

Molinski v. Chebib et al. (2012), 278 Man.R.(2d) 198; 2012 MBQB 123, refd to. [para. 15].

Fort Garry Care Centre Ltd. v. Hospitality Corp. of Manitoba Inc. (1997), 123 Man.R.(2d) 241; 159 W.A.C. 241 (C.A.), refd to. [para. 16].

Fels v. Knowles (1907), 26 N.Z.L.R. 604 (C.A.), refd to. [para. 17].

Frame v. Rai Estate, [2012] B.C.T.C. Uned. 1876; 83 E.T.R.(3d) 245; 2012 BCSC 1876, refd to. [para. 20].

Dhaliwal v. Olleck, [2010] B.C.T.C. Uned. 1524; 2010 BCSC 1524, refd to. [para. 21].

Bezuko v. Supruniuk (2007), 428 A.R. 47; 80 Alta. L.R.(4th) 94; 2007 ABQB 204, refd to. [para. 24].

Kaup v. Imperial Oil Ltd., [1962] S.C.R. 170, refd to. [para. 24].

Schimelfenig v. Schimelfenig (2014), 442 Sask.R. 30; 616 W.A.C. 30; 2014 SKCA 77, refd to. [para. 26].

Kim v. Kim (2014), 306 Man.R.(2d) 68; 604 W.A.C. 68; 2014 MBCA 34, refd to. [para. 29].

Pecore v. Pecore, [2007] 1 S.C.R. 795; 361 N.R. 1; 224 O.A.C. 330; 2007 SCC 17, refd to. [para. 40].

Blanco et al. v. Canada Trust Co. et al. (2003), 173 Man.R.(2d) 247; 293 W.A.C. 247; 2003 MBCA 64, refd to. [para. 44].

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 44].

Bodnarchuk v. RBC Life Insurance Co. et al. (2011), 262 Man.R.(2d) 225; 507 W.A.C. 225; 2011 MBCA 18, refd to. [para. 44].

Elias et al. v. Western Financial Group Inc. (2013), 296 Man.R.(2d) 232; 2013 MBQB 223, refd to. [para. 45].

Statutes Noticed:

Real Property Act, R.S.M. 1988, c. R-30; C.C.S.M., c. R-30, sect. 59(1) [para. 8].

Counsel:

William S. Gange, for the plaintiff;

Carla B. Paul, for P. Hupe;

No appearance for S. Hupe.

This appeal was heard by Rempel, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on August 6, 2015.