Kaiman Estate v. Graham Estate

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Weiler, Juriansz and MacFarland, JJ.A.
• Citation: 2009 ONCA 77,(2009), 245 O.A.C. 130 (CA)
• Date: 09 December 2008

Kaiman Estate v. Graham Estate (2009), 245 O.A.C. 130 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JA.145

Cyril Kaiman, personally and as Litigation Guardian for Benyemina Kaiman, an infant, and as Executor and Trustee of the Estate of Diane Elizabeth (Diamond) Kaiman, deceased (plaintiffs/appellants) v. Douglas Harvey Graham, personally, and Brenda Louise Graham and Ronald Johnston Swain, Executor and Trustees of the Estate of Harvey Leonard (Alexander) Graham (defendants/respondents)

(C47530; 2009 ONCA 77)

Indexed As: Kaiman Estate v. Graham Estate

Ontario Court of Appeal

Weiler, Juriansz and MacFarland, JJ.A.

January 28, 2009.

Summary:

The plaintiffs brought an action, seeking a declaration that they had an equitable interest in a cottage property; rectification of a written lease agreement to extend the term to 100 years; and a declaration that an unsigned written lease was valid and subsisting. They also sought damages in the amount of $250,000 on account of the improvements to the cottage on the basis of quantum meruit and unjust enrichment.

The Ontario Superior Court, in a decision at [2007] O.T.C. Uned. E31, dismissed the action. The plaintiffs appealed. The plaintiffs did not attack the basis of the court's decision. Rather, they submitted that the court lacked jurisdiction to hear the claim they brought because the Residential Tenancies Act (RTA) applied to the cottage and the Landlord and Tenant Board had exclusive jurisdiction to deal with the matters in issue. The plaintiffs submitted that, as a result, the judgment of the Superior Court was a nullity and ought to be quashed. The plaintiffs also raised a new argument based on the applicability of the RTA. The plaintiffs had neither pleaded nor raised the RTA at trial.

The Ontario Court of Appeal dismissed the appeal. The court held that the Superior Court had jurisdiction to try the case and that it would be contrary to the interests of justice to allow the plaintiffs to raise the new argument concerning the RTA at this late stage.

Courts - Topic 7402

Provincial courts - Ontario - General Division/Superior Court - Jurisdiction - General - [See Landlord and Tenant - Topic 7004 ].

Landlord and Tenant - Topic 7004

Regulation - General principles - Jurisdiction - General - The plaintiffs brought an action, seeking a declaration that they had an equitable interest in a cottage property; rectification of a written lease agreement to extend the term to 100 years; and a declaration that an unsigned written lease was valid and subsisting - They also sought damages in the amount of $250,000 on account of the improvements to the cottage on the basis of quantum meruit and unjust enrichment - The Ontario Superior Court dismissed the action - The plaintiffs appealed, arguing that the court lacked jurisdiction to hear the claim because the Residential Tenancies Act (RTA) applied to the cottage and the Landlord and Tenant Board had exclusive jurisdiction to deal with the matters in issue - The Ontario Court of Appeal rejected the argument - The Superior Court had jurisdiction to grant any and all of the relief claimed by the plaintiffs - The Landlord and Tenant Board did not - Any jurisdiction the Board did have was, by virtue of s. 207(2) of the RTA, non-exclusive - See paragraphs 9 to 16.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised (incl. new theory of case) - The plaintiffs' action concerning a cottage property was dismissed - The plaintiffs appealed and raised a new argument on the appeal concerning the applicability of the Residential Tenancies Act (RTA) - The plaintiffs had neither pleaded nor raised the RTA at trial - The Ontario Court of Appeal held that "Having regard to the positions advanced in the pleadings and at trial, the issue being one of mixed fact and law, the lack of any explanation as to why the argument was not raised at trial, the lack of any undertaking by the appellants with respect to costs on a full indemnity basis, the likelihood of success of the new argument and the interests of finality, it would be contrary to the interests of justice to allow the appellants to raise the new argument concerning the RTA at this late stage" - See paragraphs 17 to 25.

Cases Noticed:

V.W. v. D.S., [1996] 2 S.C.R. 108; 196 N.R. 241, refd to. [para. 9].

O'Brien v. 718458 Ontario Inc. et al., [1999] O.T.C. Uned. 21; 25 R.P.R.(3d) 57 (Gen. Div.), refd to. [para. 12].

Putnam et al. v. Grand River Conservation Authority (2006), 210 O.A.C. 191 (Div. Ct.), refd to. [para. 17].

767269 Ontario Ltd. v. Ontario Energy Savings L.P. et al., [2008] O.A.C. Uned. 234; 2008 ONCA 350, refd to. [para. 18].

Ross v. Ross (1999), 181 N.S.R.(2d) 22; 560 A.P.R. 22; 1999 NSCA 162, refd to. [para. 18].

R. v. Vidulich (1989), 37 B.C.L.R.(2d) 391 (C.A.), refd to. [para. 18].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163, refd to. [para. 18].

R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214, refd to. [para. 18].

R. v. Sweeney (2000), 50 O.R.(3d) 321 (C.A.), refd to. [para. 18].

Canadiana Towers Ltd. v. Fawcett et al. (1978), 21 O.R.(2d) 545 (C.A.), refd to. [para. 20].

V.S. v. Nova Scotia (Minister of Health) (2006), 249 N.S.R.(2d) 185; 792 A.P.R. 185; 2006 NSCA 122, refd to. [para. 23].

McCormick v. Paul Bunyan Trailer Camp Ltd. (1999), 22 R.P.R.(4th) 35 (Div. Ct.), refd to. [para. 24].

Counsel:

Garry J. Wise, for the appellants;

J. William Evans, for the respondent, Douglas Harvey Graham;

M. John Ewart and P. Kourtney O'Dwyer, for the respondents, Brenda Louise Graham and Ronald Johnston Swain.

This appeal was heard on December 9, 2008, before Weiler, Juriansz and MacFarland, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Weiler, J.A., and released on January 28, 2009.