Thorsteinson v. Olson, (2014) 452 Sask.R. 160 (QB)

• Judge: Schwann, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 01, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 452 Sask.R. 160 (QB);2014 SKQB 237

Thorsteinson v. Olson (2014), 452 Sask.R. 160 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. AU.046

Marjorie Dean Thorsteinson (plaintiff) v. William Olson (defendant)

(2001 Q.B. No. 481; 2014 SKQB 237)

Indexed As: Thorsteinson v. Olson

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Schwann, J.

August 1, 2014.

Summary:

Though not directly related, the plaintiff and defendant lived together for many years in what became essentially a mother and son relationship. The defendant farmed 19 quarter sections of land, which included land that belonged to the plaintiff. In March 2000, the plaintiff, then aged 81, executed a "Deed of Gift", transferring her land to herself and the defendant as joint tenants. In September 2000, the defendant married and the plaintiff moved into a seniors' residence. The plaintiff and defendant became estranged. In 2001, the plaintiff commenced an action, seeking to revoke the gift. After the plaintiff's death in 2005, the action was continued by the estate.

The Saskatchewan Court of Queen's Bench dismissed the action.

Equity - Topic 3606

Fiduciary or confidential relationships - General principles - What constitutes a fiduciary relationship - Though not directly related, the plaintiff and defendant lived together for many years in what became essentially a mother and son relationship - The defendant farmed 19 quarter sections of land, which included land that belonged to the plaintiff - In March 2000, the plaintiff, then aged 81, executed a "Deed of Gift", transferring her land to herself and the defendant as joint tenants - In September 2000, the defendant married and the plaintiff moved into a seniors' residence - The plaintiff and defendant became estranged - In 2001, the plaintiff commenced an action, seeking to revoke the gift - After the plaintiff's death in 2005, the action was continued by the estate - At issue was whether the defendant had breached a fiduciary duty to the plaintiff - The Saskatchewan Court of Queen's Bench dismissed the action - Whether a fiduciary relationship existed was a question of fact that depended on the relationship between the parties - Here, there was no evidence that the defendant was placed in a position of trust and confidence over the plaintiff's affairs or that the plaintiff had acted in a way that would recognize such a role for the defendant - While the plaintiff had granted the defendant a power of attorney, that was not done until August 2000, after the gift was made - See paragraphs 88 to 91.

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - [See Equity - Topic 3606 ].

Fraud and Misrepresentation - Topic 801

Undue influence - Presumed undue influence - Rebuttal of - General - [See third Gifts - Topic 773 ].

Fraud and Misrepresentation - Topic 806

Undue influence - Presumed undue influence - Rebuttal of - By the giving of independent legal advice - [See third Gifts - Topic 773 ].

Fraud and Misrepresentation - Topic 824

Undue influence - Presumed undue influence from special relationships - Adult child and elderly parent - [See second and third Gifts - Topic 773 ].

Gifts - Topic 501

Gifts inter vivos - General principles - Gifts inter vivos - Defined - Though not directly related, the plaintiff and defendant lived together for many years in what became essentially a mother and son relationship - The defendant farmed 19 quarter sections of land, which included land that belonged to the plaintiff - In March 2000, the plaintiff, then aged 81, executed a "Deed of Gift", transferring her land to herself and the defendant as joint tenants - In September 2000, the defendant married and the plaintiff moved into a seniors' residence - The plaintiff and defendant became estranged - In 2001, the plaintiff commenced an action, seeking to revoke the gift - After the plaintiff's death in 2005, the action was continued by the estate - At issue was whether the gift failed for a lack of consideration - The Saskatchewan Court of Queen's Bench dismissed the action - The transfer was an inter vivos gift from the plaintiff to the defendant - Consideration was not required to constitute a valid inter vivos gift - See paragraphs 92 and 93.

Gifts - Topic 527

Gifts inter vivos - Presumption against gift - Resulting trust - Rebuttal of presumption - Though not directly related, the plaintiff and defendant lived together for many years in what became essentially a mother and son relationship - The defendant farmed 19 quarter sections of land, which included land that belonged to the plaintiff - In March 2000, the plaintiff, then aged 81, executed a "Deed of Gift", transferring her land to herself and the defendant as joint tenants - In September 2000, the defendant married and the plaintiff moved into a seniors' residence - The plaintiff and defendant became estranged - In 2001, the plaintiff commenced an action, seeking to revoke the gift - After the plaintiff's death in 2005, the action was continued by the estate - At issue was whether the doctrine of resulting trust applied - The Saskatchewan Court of Queen's Bench dismissed the action - Having determined that the doctrine did not apply to land registered under the Land Titles Act, the court indicated that, even if the doctrine did apply, the plaintiff's claim would fail because the plaintiff's intention at the time of the transfer was to make a complete and unconditional gift to the defendant - Like the presumption of advancement, the presumption of resulting trust was rebuttable - Where it was established that the transferor's intention was to make a gift, the presumption was rebutted - See paragraphs 104 to 116.

Gifts - Topic 730

Gifts inter vivos - Transfers in joint tenancy - Survivorship - [See Real Property - Topic 3881 ].

Gifts - Topic 773

Gifts inter vivos - Grounds for invalidity - Undue influence - Though not directly related, the plaintiff and defendant lived together for many years in what became essentially a mother and son relationship - The defendant farmed 19 quarter sections of land, which included land that belonged to the plaintiff - In March 2000, the plaintiff, then aged 81, executed a "Deed of Gift", transferring her land to herself and the defendant as joint tenants - In September 2000, the defendant married and the plaintiff moved into a seniors' residence - The plaintiff and defendant became estranged - In 2001, the plaintiff commenced an action, seeking to revoke the gift - After the plaintiff's death in 2005, the action was continued by the estate - At issue was whether the transaction should be set aside based on undue influence - The Saskatchewan Court of Queen's Bench dismissed the action - The plaintiff had initiated the transaction and the gifting process - There was no actual undue influence - Viewed objectively, the transaction was untainted by any sign of manipulation, coercion or even subtle influence exercised by the defendant over the plaintiff - See paragraphs 59 to 70.

Gifts - Topic 773

Gifts inter vivos - Grounds for invalidity - Undue influence - Though not directly related, the plaintiff and defendant lived together for many years in what became essentially a mother and son relationship - The defendant farmed 19 quarter sections of land, which included land that belonged to the plaintiff - In March 2000, the plaintiff, then aged 81, executed a "Deed of Gift", transferring her land to herself and the defendant as joint tenants - In September 2000, the defendant married and the plaintiff moved into a seniors' residence - The plaintiff and defendant became estranged - In 2001, the plaintiff commenced an action, seeking to revoke the gift - After the plaintiff's death in 2005, the action was continued by the estate - At issue was whether the transaction should be set aside based on undue influence - The Saskatchewan Court of Queen's Bench dismissed the action - The circumstances did not raise a presumption of undue influence - The mere fact that the plaintiff and the defendant were in a "parent/child" relationship was not, of itself, sufficient to engage the presumption - The question was whether the defendant exercised a dominating influence over the plaintiff to such a degree that the deed and transfer were not the product of the plaintiff's free will - The evidence did not establish any such domination of will - The plaintiff's actions were not in any way out of character, widely erratic or unusual - While the plaintiff's health was failing, her physical state had not created a dependency on the defendant - See paragraphs 71 to 79.

Gifts - Topic 773

Gifts inter vivos - Grounds for invalidity - Undue influence - Though not directly related, the plaintiff and defendant lived together for many years in what became essentially a mother and son relationship - The defendant farmed 19 quarter sections of land, which included land that belonged to the plaintiff - In March 2000, the plaintiff, then aged 81, executed a "Deed of Gift", transferring her land to herself and the defendant as joint tenants - In September 2000, the defendant married and the plaintiff moved into a seniors' residence - The plaintiff and defendant became estranged - In 2001, the plaintiff commenced an action, seeking to revoke the gift - After the plaintiff's death in 2005, the action was continued by the estate - At issue was whether the transaction should be set aside based on undue influence - The Saskatchewan Court of Queen's Bench dismissed the action - While the circumstances did not raise a presumption of undue influence, even if they had, the presumption would have been rebutted - While the legal advice that the plaintiff had received might have been inadequate, that did not, of itself, justify overturning a gift - The presence or absence of legal advice was only one way in which to rebut the presumption of undue influence - Here, the plaintiff's actions were entirely consistent with the close familial relationship she had with the defendant and her obvious desire to leave the vast bulk of her estate to him - The gift was the plaintiff's decision alone - See paragraphs 80 to 87.

Real Property - Topic 3731

Joint estates - Joint tenancies - Right to an accounting - Though not directly related, the plaintiff and defendant lived together for many years in what became essentially a mother and son relationship - The defendant farmed 19 quarter sections of land, which included land that belonged to the plaintiff - In March 2000, the plaintiff, then aged 81, executed a "Deed of Gift", transferring her land to herself and the defendant as joint tenants - In September 2000, the defendant married and the plaintiff moved into a seniors' residence - The plaintiff and defendant became estranged - In 2001, the plaintiff commenced an action, seeking to revoke the gift - After the plaintiff's death in 2005, the action was continued by the estate - The Saskatchewan Court of Queen's Bench, having determined that the gift could not be revoked, also rejected the plaintiff's claim for occupation rent or an accounting of all transactions and profits derived by the defendant from the land since 1985, when the defendant stopped paying the plaintiff anything by way of farm income - Generally, a tenant was not required to account to the other joint tenant for benefits derived from occupation of the land - The right to an accounting for rentals was restricted to situations where revenue was generated from an outside or third party source or where one tenant had excluded the other from the property or had expressly consented to act as the other's bailiff - None of those exceptions applied here - See paragraphs 133 to 150.

Real Property - Topic 3881

Joint estates - Severance of joint tenancies - General - Though not directly related, the plaintiff and defendant lived together for many years in what became essentially a mother and son relationship - The defendant farmed 19 quarter sections of land, which included land that belonged to the plaintiff - In March 2000, the plaintiff, then aged 81, executed a "Deed of Gift", transferring her land to herself and the defendant as joint tenants - In September 2000, the defendant married and the plaintiff moved into a seniors' residence - The plaintiff and defendant became estranged - In 2001, the plaintiff commenced an action, seeking to revoke the gift - After the plaintiff's death in 2005, the action was continued by the estate - At issue was whether, even if the gift could not be overturned in its entirety, the plaintiff was entitled to sever the joint tenancy - The Saskatchewan Court of Queen's Bench dismissed the action - Section 156 of the Land Titles Act clearly prevented the unilateral alienation of the title or an interest in land held in joint tenancy unless the alienation was in writing by the joint tenant or authorized by court order - The phrase "one of the joint tenants" in s. 156(b) referred to the registered joint tenants while alive - It did not embrace executors, administrators and personal representatives - To hold otherwise would be incongruous with long standing legal principles, particularly the right of survivorship that accrued at law to a joint tenant - If the legislature had intended to override the common law by circumscribing the right of survivorship, clear legislative language would have been required - The applicable legislation was not open to an application for severance by an estate representative - See paragraphs 117 to 132.

Real Property - Topic 7802

Title - Registration of instruments, etc. - General principles - Effect of registration - Though not directly related, the plaintiff and defendant lived together for many years in what became essentially a mother and son relationship - The defendant farmed 19 quarter sections of land, which included land that belonged to the plaintiff - In March 2000, the plaintiff, then aged 81, executed a "Deed of Gift", transferring her land to herself and the defendant as joint tenants - In September 2000, the defendant married and the plaintiff moved into a seniors' residence - The plaintiff and defendant became estranged - In 2001, the plaintiff commenced an action, seeking to revoke the gift - After the plaintiff's death in 2005, the action was continued by the estate - At issue was whether the doctrine of resulting trust applied - The Saskatchewan Court of Queen's Bench dismissed the action - The application of the doctrine had to be considered in light of the principles of conclusiveness of title established by the Torrens system and the Land Titles Act - Absent some limited exceptions that did not apply here, the certificate of title could not be challenged by equitable claims, including the doctrine of resulting trust - As the plaintiff's claim required the court to look beyond the certificate of title and give effect to an equitable doctrine, it was "at clear odds with statute" - See paragraphs 94 to 103.

Real Property - Topic 8024

Title - Registration of instruments, etc. - Land titles system - Certificate of title - Reliance on issue of - [See Real Property - Topic 7802 ].

Trusts - Topic 1906

Resulting trusts - General principles - Gifts - [See Gifts - Topic 527 and Real Property - Topic 7802 ].

Trusts - Topic 2044

Resulting trusts - Voluntary property transfers - Presumption of resulting trust - [See Gifts - Topic 527 ].

Words and Phrases

One of the joint tenants - The Saskatchewan Court of Queen's Bench considered the interpretation of the phrase "one of the joint tenants" as found in s. 156 of the Land Titles Act, S.S. 2000, c. L-5.1 - See paragraphs 117 to 132.

Cases Noticed:

Allcard v. Skinner (1887), 36 Ch. D. 145 (C.A.), refd to. [para. 59].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81; 81 D.L.R.(4th) 211, refd to. [para. 61].

Chender v. Lewaskewicz (2007), 259 N.S.R.(2d) 330; 828 A.P.R. 330; 62 R.P.R.(4th) 170; 2007 NSCA 108, refd to. [para. 66].

Johnston Estate v. Gemmill (2007), 416 A.R. 174; 2007 ABQB 235, refd to. [para. 66].

Dumont v. Turcotte (2006), 209 Man.R.(2d) 148; 2006 MBQB 244, affd. (2007), 214 Man.R.(2d) 233; 395 W.A.C. 233; 2007 MBCA 83, refd to. [para. 66].

Calmusky v. Karaloff, [1947] S.C.R. 110; [1947] 1 D.L.R. 734, refd to. [para. 72].

Brown v. Zaitsoff Estate (2001), 209 Sask.R. 234; 2001 SKQB 312, refd to. [para. 72].

Quandt Estate, Re (2011), 383 Sask.R. 203; 2011 SKQB 345, refd to. [para. 72].

Kibsey Estate v. Stutsky, [1990] 2 W.W.R. 632; 63 Man.R.(2d) 34 (C.A.), refd to. [para. 74].

Brandon v. Brandon, [2001] O.T.C. 571 (Sup. Ct.), refd to. [para. 81].

Pecore v. Pecore, [2007] 1 S.C.R. 795; 361 N.R. 1; 224 O.A.C. 330; 2007 SCC 17, refd to. [para. 95].

Canada (Attorney General) v. Saskatchewan (Attorney General), [1988] 5 W.W.R. 706 (Sask. C.A.), refd to. [para. 97].

Hermanson v. Schmidt Estate et al., [1987] 1 W.W.R. 439; 52 Sask.R. 164 (C.A.), refd to. [para. 97].

Jen-Sim Cattle Co. v. Agricultural Credit Corp. of Saskatchewan et al. (2006), 277 Sask.R. 193; 2006 SKQB 173, refd to. [para. 98].

Brick et al. v. Modus Resources Ltd. et al. (2007), 294 Sask.R. 21; 2007 SKQB 111, refd to. [para. 98].

Winisky v. Krivuzoff (2003), 237 Sask.R. 213; 2003 SKQB 345, refd to. [para. 101].

Podboy v. Bale (2001), 201 Sask.R. 306; 2001 SKQB 28, refd to. [para. 102].

Lafaver v. Lafaver (2003), 229 Sask.R. 296; 2003 SKQB 73, refd to. [para. 102].

Simcoff v. Simcoff, [2009] 9 W.W.R. 248; 245 Man.R.(2d) 7; 466 W.A.C. 7; 2009 MBCA 80, refd to. [para. 119].

Hansen Estate v. Hansen (2012), 288 O.A.C. 116; 109 O.R.(3d) 241; 2012 ONCA 112, refd to. [para. 120].

Tessier Estate et al. v. Tessier (2001), 211 Sask.R. 50; 2001 SKQB 399, refd to. [para. 123].

Rikley v. Mooney, [2006] Sask.R. Uned. 206; 52 R.P.R.(4th) 240; 2006 SKQB 544, refd to. [para. 124].

Chernishenko v. Popoff (2013), 435 Sask.R. 29; 2013 SKQB 436, refd to. [para. 124].

Reid v. Reid, [1978] 4 W.W.R. 460; 87 D.L.R.(3d) 370 (Sask. Q.B.), refd to. [para. 139].

Kazmierczak v. Kazmierczak (2001), 292 A.R. 233; 22 R.F.L.(5th) 321; 2001 ABQB 610, refd to. [para. 142].

Osachuk v. Osachuk, [1971] 2 W.W.R. 481; 18 D.L.R.(3d) 413 (Man. C.A.), refd to. [para. 150].

Statutes Noticed:

Land Titles Act, S.S. 2000, c. L-5.1, sect. 156 [para. 122].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (2nd Ed. 1985), vol. 1, pp. 788 to 793 [para. 118]; 793 [para. 119].

Ellis, Mark Vincent, Fiduciary Duties in Canada (2004) (Looseleaf), vol. 1, p. 1-2.1 [para. 89].

Halsbury's Laws of Canada: Food/Gifts (2014), pp. 217 [para. 92]; 299 [para. 60]; 302 [para. 66]; 306 [para. 74]; 307 [para. 80].

Halsbury's Laws of Canada: Real Property (2012), c. HRP-37, pp. 200 to 201 [para. 127]; 206 [para. 120].

Klar, Lewis N., Linden, Allan M., Cherniak, Earl A., Remedies in Tort (1987) (Looseleaf), vol. 1, p. 4-18 [para. 135].

Waters, Donovan W.M., Gillen, Mark R., and Smith, Lionel D., The Law of Trusts in Canada (3rd Ed. 2005), p. 378 [para. 105].

Counsel:

J. Edward Crane, for the plaintiff;

Michael T. Megaw, Q.C. (as he was then) and David Zeggelaar, for the defendant.

This action was heard by Schwann, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following judgment on August 1, 2014.