Case information

None.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Property Real property Trusts Resulting trust Appellant using funds received from Respondent to purchase property in foreclosure proceedings Funds representing disputed monies owing to third party Whether the doctrine of unjust enrichment is superior to the purchase money resulting trust for resolving disputes in the non domestic context where one party contributes money to the purchase of property but does not acquire legal title Whether the appellant was unjustly enriched by the respondent’s contribution to the purchase of the property In the alternative, whether the Court of Appeal erred in its application of resulting trust principles.

Mr. Heringa was the owner of Rascal Trucking Ltd. (“Rascal”). Mr. Heringa had developed property with Ms. Plavetic, with whom he once had a personal relationship, and who was a realtor and a principal of Kismet Enterprises Ltd. (“Kismet”). Kismet owned just under two acres of land in the City of Nanaimo (“the Property”). In 1996, Rascal entered into a five year lease of the Property to use part of it for a topsoil processing facility. Rascal agreed to pay royalties to Kismet and to hold Kismet harmless from any and all liabilities resulting from Rascal’s operations on the property. After Rascal moved topsoil onto the property for processing, there were complaints from the surrounding neighbourhood. In response, the City passed a resolution that the soil processing was a nuisance and that the accumulated topsoil had to be removed. The resolution provided the City with the power to remove the topsoil if its order was not complied with. Kismet had no means to remove the soil and accordingly did nothing. Rascal tried to have the City pay for the removal to another site, but the negotiations were unsuccessful. The cost of removal by the City was $110,679 and this amount was lodged against the property as tax arrears. The tax arrears and existing mortgage to the CIBC caused Ms. Plavetic to conclude that there was no equity in the property, and she ceased making the mortgage payments. Mr. Heringa continued to demand of the City that the tax arrears be removed from title. The CIBC commenced foreclosure proceedings in 1997 and paid the $110,679.74 to redeem the property from a tax sale. Throughout the foreclosure proceedings, Mr. Heringa took an active role in seeking a way in which he might take an ownership position in the property. Rascal also sued the City seeking damages for the topsoil removal. In 2001, a vesting order was granted with title being transferred to Mr. Nishi at a price of $237,500. He was assisted in the financing of the purchase by Mr. Heringa, who advanced the sum of $110,679.74 and signed as covenantor. Mr. Nishi refused Mr. Heringa’s request for an ownership interest in the Property. Mr. Nishi and Ms. Plavetic have resided on the Property in a common law relationship since 1997. After Mr. Nishi obtained title, the couple spent in excess of $100,000 in development costs. Seven years later, Rascal sued Mr. Nishi to acquire a 50 per cent interest in the Property and a caveat was filed against the Property.