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Tomek v Zabukovec Revisited (2021 ONCA 723)

2 minute read

On July 22, 2020, I blogged about the Tomek v Zabukovec decision, where the trial judge had ruled in favour of a husband and wife, Joseph Zabukovec Jr. and Judith Tomek, who asserted a beneficial interest in land owned by the husband’s father, Joseph Zabukovec Sr.

That case was appealed to the Ontario Court of Appeal, which released its decision in October.

The issue on appeal was the appropriateness of the trial judge’s remedy. The trial judge relied on expert evidence to find that the value of the Property as a whole was $813,000. She granted Joseph Jr. and Judith joint beneficial ownership of 75% of the Property and the Estate of Joseph Sr. 25% of the Property. The Estate argued that the trial judge erred by failing to consider Joseph Sr.’s contribution to the construction of the house on the home lot, which it valued at $100,000.

Interestingly, although the court agreed that the trial judge erred in apportioning the ownership interest between Joseph Jr. and Judith on one hand and the Estate on the other, it declined to interfere with the trial judge’s order. Relying on the Supreme Court of Canada’s decision in Cowper-Smith v Morgan, 2017 SCC 61, the court held:

[13]       Although a trial judge does not have unfettered authority in crafting an equitable remedy, we find that the trial judge's remedy, in this case, was appropriate. There was ample evidence to establish that it was always the intention of the parties that Joseph Jr. and Judith would receive both the house lot and the house. Indeed, that was the purpose of Joseph Sr.’s aborted severance application. Had that application been successful, Joseph Jr. and Judith would have been the owners of their home and the house lot. The order of the trial judge is entirely consistent with that intended result. It awards them the value of the house and the house lot. It is, in our view, a just and equitable result in the circumstances. There is, therefore, no basis for this court to interfere with that order.

When it comes to claims involving proprietary estoppel, it appears that appellate courts will defer to the trial judge’s discretion in crafting a remedy, provided it is fair and reasonable.

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Kimberly A. F. Cura

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