Rascal Trucking Ltd. v. Nishi, 2011 BCCA 348

• Judge: Kirkpatrick, Frankel and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 17, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 348;(2011), 309 B.C.A.C. 182 (CA)

Rascal Trucking Ltd. v. Nishi (2011), 309 B.C.A.C. 182 (CA);

    523 W.A.C. 182

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. AU.023

Rascal Trucking Ltd. (appellant/plaintiff) v. Edward Sumio Nishi (respondent/defendant)

(CA038118; 2011 BCCA 348)

Indexed As: Rascal Trucking Ltd. v. Nishi

British Columbia Court of Appeal

Kirkpatrick, Frankel and D. Smith, JJ.A.

August 17, 2011.

Summary:

Rascal Trucking Ltd. claim to an undivided one-half interest in a property registered in Nishi's name pursuant to an alleged oral agreement. It claimed that Nishi held the property in trust for Rascal.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 649, dismissed Rascal's claim on the basis that the facts did not disclose an agreement, a resulting trust, or a constructive trust. Rascal appealed.

The British Columbia Court of Appeal allowed the appeal. A presumption of resulting trust arose which was not displaced by Nishi.

Trusts - Topic 2110

Resulting trusts - Where property is transferred to one person and the purchase price is paid by another - Payment of part of purchase price - General - A company (Rascal) leased a property from another company (Kismet) and processed topsoil on part of it - A city held that topsoil processing was a nuisance and ordered Kismet to remove the topsoil - The city eventually removed the topsoil and added the removal cost ($110,679.74) to Kismet's property taxes - Under the lease, Rascal agreed to hold Kismet (now dissolved) harmless from Rascal's activities - A bank foreclosed on the property - The property was sold to Nishi who was in a common law relationship with Kismet's principal (Plavetic) - Rascal contributed $110,000 towards the purchase ($85,000 in cash and $25,000 via a guarantee by Rascal's principal Heringa) - Several years later, Rascal claimed an undivided one-half interest in the property pursuant to a resulting trust - The trial judge rejected the claim - The British Columbia Court of Appeal allowed Rascal's appeal - A presumption of resulting trust arose which was not displaced by Nishi - He did not intend for Rascal to have an interest in the land - But his intention, in the context of resulting trust, was irrelevant - It was Heringa's (Rascal's) actual intention that governed - Nishi, Plavetic and Kismet believed that Rascal's contribution was in payment of Rascal's obligations to "hold harmless" Kismet from its nuisance - However, Nishi never obtained clarification from Rascal that its contribution was in satisfaction of an obligation owed to a third party, Kismet - While Heringa might have had an obligation to Kismet and Plavetic to pay the tax arrears, he clearly had no such obligation to Nishi - See paragraphs 43 to 53.

Cases Noticed:

Stanciu v. Stanciu (2004), 9 E.T.R.(3d) 108; 19 R.P.R.(4th) 40 (Ont. Sup. Ct.), refd to. [para. 21].

Kerr v. Baranow (2011), 411 N.R. 200; 274 O.A.C. 1; 300 B.C.A.C. 1; 509 W.A.C. 1; 328 D.L.R.(4th) 577; 2011 SCC 10, refd to. [para. 26].

Wu v. Sun, [2010] B.C.A.C. Uned. 102; 91 R.F.L.(6th) 24; 2010 BCCA 455, refd to. [para. 27].

Pecore v. Pecore, [2007] 1 S.C.R. 795; 361 N.R. 1; 224 O.A.C. 330; 2007 SCC 17, refd to. [para. 35].

Clemens v. Clemens Estate, [1956] S.C.R. 286, refd to. [para. 37].

Shephard v. Cartwright, [1955] A.C. 431 (H.L.), refd to. [para. 37].

A.M.K. Investments Ltd. (Bankrupt) v. Kraus (1996), 13 O.T.C. 254; 42 C.B.R.(3d) 227 (Gen. Div. Bktcy.), refd to. [para. 39].

Hollett v. Hollett (1993), 106 Nfld. & P.E.I.R. 271; 334 A.P.R. 271; 50 E.T.R. 22 (Nfld. T.D.), refd to. [para. 39].

Ramsay (Bankrupt), Re, [2006] Northwest Terr. Cases (SC) 73; 30 C.B.R.(5th) 20; 2006 NWTSC 73, refd to. [para. 39].

Dyer v. Dyer (1788), 2 Cox. Eq. Cas. 92; 30 E.R. 42 (Ch. D.), refd to. [para. 41].

Authors and Works Noticed:

Underhill, Arthur, and Hayton, David J., Law Relating to Trusts and Trustees (17th Ed. 2006), p. 392 [para. 31].

Maddaugh, Peter D., and McCamus, John D., The Law of Restitution (2010 Looseleaf), p. 33:200.20 [para. 54].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), pp. 21 [para. 33]; 362 [para. 30]; 365 [para. 32]; 368 [para. 42]; 375 [para. 35].

Counsel:

C.P. Dennis, for the appellant;

P.G. Guy, for the respondent.

This appeal was heard at Victoria, British Columbia, on June 17, 2011, before Kirkpatrick, Frankel and D. Smith, JJ.A., of the British Columbia Court of Appeal. Kirkpatrick, J.A., delivered the following reasons for judgment at Vancouver, British Columbia, on August 17, 2011.