Semchyshen Estate v. Semchyshen, 2013 SKQB 206

• Judge: Gabrielson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 30, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKQB 206;(2013), 421 Sask.R. 271 (QB)

Semchyshen Estate v. Semchyshen (2013), 421 Sask.R. 271 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. JN.041

Bernadette Semchyshen and the Estate of Peter Semchyshen (plaintiffs) v. Raymond Victor Semchyshen and Gail Semchyshen (defendants)

(2010 Q.B.G. No. 675; 2013 SKQB 206)

Indexed As: Semchyshen Estate v. Semchyshen

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gabrielson, J.

May 30, 2013.

Summary:

Peter and Bernadette had four children and operated a farm. In 2004, Peter and his eldest son (Raymond) executed a rollover agreement which transferred several sections of land and other depreciable property to Raymond and his wife (defendants). Following Peter's death in 2009, Peter's estate and Bernadette (plaintiffs) claimed that the rollover agreement and land transfers had been made pursuant to an oral agreement between Peter and Raymond, the terms of which were so uncertain as to be unenforceable. The plaintiffs further submitted that the defendants held the land and depreciable property in trust for the plaintiffs pursuant to a resulting or constructive trust. Alternatively, the plaintiffs submitted that any oral agreement for the sale of land was void pursuant to s. 4 of the Statute of Frauds.

The Saskatchewan Court of Queen's Bench dismissed the plaintiffs' claims respecting the land. The court found that the defendants had been unjustly enriched respecting the depreciable property and ordered the defendants to pay the plaintiffs a monetary award of $12,887. The defendants were also ordered to pay the plaintiffs' costs.

Contracts - Topic 1104

Formation of contract - General principles - Oral contracts - Peter and Bernadette had four children and operated a farm - In early 2000, Peter asked his children for financial help and allegedly stated that anyone who helped would be given a deal on the farm in the future - Only the eldest son (Raymond) expressed an interest in farming - Raymond began to buy farm equipment, pay farm accounts and make other payments to Peter and Bernadette - In August 2000, Peter transferred some of his land to himself and Raymond as joint tenants - In 2004, Peter and Raymond executed a rollover agreement which transferred several sections of land to Raymond and his wife (defendants) - At the same time, Peter and Bernadette signed certificates of independent legal advice respecting the rollover agreement - The defendants moved onto the home quarter and Peter and Bernadette moved into a trailer that had been financed by Raymond - The defendants made improvements to the farm totalling $70,000 - In 2005, Raymond began reporting all of the farm income - Peter died in 2009 - Peter's estate and Bernadette (plaintiffs) claimed that the rollover agreement and land transfers had been made pursuant to an oral agreement between Peter and Raymond, the terms of which were so uncertain as to be unenforceable - They submitted that the defendants held the land in trust for the plaintiffs pursuant to a resulting trust - The Saskatchewan Court of Queen's Bench held that Saskatchewan's Torrens system of land registration meant that there could be no resulting trust once the transfer of titles took place and the land was registered in the defendants' names - In any event, the sale of land from Peter to Raymond was pursuant to an oral contract, the terms of which could be determined with sufficient particularity to rebut the presumption of a resulting trust - The parties' actions beginning in 2000 were consistent with the finding that Raymond had agreed to purchase the farm from Peter for the sum of $110,000 - The total payments made by Raymond to Peter and Bernadette exceeded the purchase price - Raymond had therefore paid the consideration called for in the agreement - See paragraphs 10 to 42.

Contracts - Topic 7952

Statute of Frauds - General - When applicable - Peter and Bernadette had four children and operated a farm - In 2004, Peter and his eldest son (Raymond) executed a rollover agreement which transferred several sections of land to Raymond and his wife (defendants) - Peter died in 2009 - Peter's estate and Bernadette (plaintiffs) claimed that the rollover agreement and land transfers had been made pursuant to an oral agreement between Peter and Raymond, and because the agreement was not in writing, it was void pursuant to s. 4 of the Statute of Frauds - The Saskatchewan Court of Queen's Bench found that the Statute of Frauds did not assist the plaintiffs - Section 4 did not state that an oral agreement regarding the purchase of land was void - It stated that the agreement was not "enforceable by action" - The defendants were not applying to enforce the oral contract - Rather, it was the plaintiffs who brought the action and the defendants were entitled to refer to the oral agreement as a defence - See paragraphs 43 to 48.

Practice - Topic 7030

Costs - Party and party costs - Entitlement to party and party costs - Where success or fault divided - Peter and Bernadette had four children and operated a farm - In 2004, Peter and his eldest son (Raymond) executed a rollover agreement which transferred several sections of land and other depreciable property to Raymond and his wife (defendants) - Following Peter's death in 2009, Peter's estate and Bernadette (plaintiffs) claimed that the rollover agreement and land transfers had been made pursuant to an oral agreement between Peter and Raymond, the terms of which were so uncertain as to be unenforceable - The plaintiffs further submitted that the defendants held the land and depreciable property in trust for the plaintiffs pursuant to a resulting or constructive trust - The Saskatchewan Court of Queen's Bench dismissed the plaintiffs' claims respecting the land - However, the defendants had been unjustly enriched respecting the depreciable property and were ordered to pay the plaintiffs a monetary award - The defendants were also ordered to pay the plaintiffs' taxable costs of the action - Although the plaintiffs had been only partially successful, Raymond could have taken actions that would have avoided the need for a trial - When the rollover agreement was executed, legal counsel had advised Raymond to have an accountant provide advice and instructions - He was also advised to sign a promissory note to Peter respecting the amount owing - Raymond had not exercised either of these options - If he had, the agreement between Peter and Raymond would have been fully documented and Bernadette could not have had any doubts as to what had been agreed to or whether the agreement had been complied with - See paragraph 56.

Real Property - Topic 8024

Title - Registration of instruments, etc. - Land titles system - Certificate of title - Reliance on issue of - [See Contracts - Topic 1104 ].

Restitution - Topic 62

Unjust enrichment - General - What constitutes - [See Restitution - Topic 64 ].

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - Peter and Bernadette had four children and operated a farm - In 2004, Peter and his eldest son (Raymond) executed a rollover agreement which transferred several sections of land and other depreciable property (farm equipment and buildings) to Raymond and his wife (defendants) - Peter died in 2009 - Peter's estate and Bernadette (plaintiffs) claimed that the defendants held the land and depreciable property pursuant to a constructive trust based on the doctrine of unjust enrichment - The Saskatchewan Court of Queen's Bench found that the defendants had received property that had value thereby enriching the defendants to the deprivation of the plaintiffs - There was a juristic reason for the transfer of the land since it was made pursuant to an oral agreement between Peter and Raymond where the purchase price was $110,000 - Raymond had paid $122,075 - However, there was no juristic reason for the transfer of the depreciable property - There was no evidence that Raymond had paid anything for it or that Peter intended to gift it to Raymond - Accordingly, the plaintiffs were entitled to a monetary award - The value of the depreciable property was $24,963 - The court subtracted from this amount the overpayment that Raymond had made respecting the land ($12,075), for a balance owing of $12,887 - See paragraphs 49 to 55.

Restitution - Topic 124

Unjust enrichment - Remedies - Damages - [See Restitution - Topic 64 ].

Sale of Land - Topic 805

The contract - General - Agreement for sale - What constitutes - [See Contracts - Topic 1104 ].

Sale of Land - Topic 1326

The contract - Necessity for writing - General - Statute of Frauds - Circumstances not within statute - [See Contracts - Topic 7952 ].

Trusts - Topic 1907

Resulting trusts - General principles - Circumstances when not imposed - [See Contracts - Topic 1104 ].

Cases Noticed:

Picavet v. Clute et al., [2012] O.T.C. Uned. 2221; 22 R.P.R.(5th) 72; 2012 ONSC 2221, dist. [para. 11].

Anani et al. v. Malaspina Coach Lines Ltd., [2003] B.C.T.C. Uned. 253; 2003 BCSC 700, dist. [para. 12].

Fairway Farms Ltd. v. SPI Marketing Group Inc. (2010), 364 Sask.R. 287; 2010 SKQB 461, dist. [para. 12].

Shelly v. Douglas (1996), 142 Sask.R. 198 (Q.B.), dist. [para. 12].

Ogle v. Ogle et al. (2003), 229 Sask.R. 153; 2003 SKQB 19, affd. (2005), 257 Sask.R. 214; 342 W.A.C. 214; 2005 SKCA 14, refd to. [para. 14].

Mountain v. Mountain Estate (2012), 299 O.A.C. 66; 112 O.R.(3d) 721; 2012 ONCA 806, refd to. [para. 14].

Balaberda v. Mucha (1960), 25 D.L.R.(2d) 760, refd to. [para. 16].

Canada (Attorney General) v. Saskatchewan (Attorney General), [1988] 5 W.W.R. 706 (Sask. C.A.), refd to. [para. 25].

Podboy v. Bale (2001), 201 Sask.R. 306; 2001 SKQB 28, refd to. [para. 25].

Winisky v. Krivuzoff (2003), 237 Sask.R. 213; 2003 SKQB 345, refd to. [para. 25].

Bezuko v. Supruniuk (2007), 428 A.R. 47; 80 Alta. L.R.(4th) 94; 2007 ABQB 204, refd to. [para. 26].

Church v. Hill, [1923] S.C.R. 642; 3 W.W.R. 405, refd to. [para. 32].

Erie Sand and Gravel Ltd. v. Seres' Farms Ltd. et al. (2009), 254 O.A.C. 377; 312 D.L.R.(4th) 111; 2009 ONCA 709, dist. [para. 43].

Booth v. Knibb Developments Ltd. et al. (2002), 312 A.R. 173; 281 W.A.C. 173; 2002 ABCA 180, dist. [para. 43].

Stack v. Zizman, [2007] O.T.C. Uned. 588; 60 R.P.R.(4th) 42 (S.C.), dist. [para. 43].

Sadaka v. Saleh (2011), 386 Sask.R. 128; 2011 SKQB 416, refd to. [para. 45].

Barber and Barber v. Glen and Glen, [1987] 6 W.W.R. 689; 59 Sask.R. 49 (C.A.), refd to. [para. 46].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 49].

Statutes Noticed:

Statute of Frauds (1677), 29 Car. 2, c. 3, sect. 4 [para. 17].

Authors and Works Noticed:

Di Castri, Victor, The Law of Vendor and Purchaser (3rd Ed. 1988) (Looseleaf), paras. 130, 137 [para. 44].

Waters, Donovan W.M., Gillen, Mark R., and Smith, Lionel D., Waters' Law of Trusts in Canada (3rd Ed. 2005), p. 372 [paras. 23, 27].

Counsel:

Grant J. Scharfstein, Q.C., and Deidre L. Aldcorn, for the plaintiffs;

Nolan J. Dooley, for the defendants.

This matter was heard before Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on May 30, 2013.