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On the balance of probabilities the $40,000 was transferred for the start‑up and ongoing needs of the proposed company and not as a gift; the presumption of resulting trust applied and the defendant failed to rebut it, therefore the defendant must repay $40,000 with interest.
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The summary judgment was set aside because the motion judge committed a palpable and overriding error by finding an agreement to extend the closing date based on an unsupported and unreasonable inference without resolving competing credibility-based explanations; the factual disputes require a trial.
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Parties formed a tenancy at will because the alleged five-year lease was unenforceable under the Statute of Frauds; Defendants occupied for nine months and are liable for rent at the agreed rate of $1,500/month plus HST by operation of law; Defendants are not entitled to an equitable set-off for improvements because rescission is not available and unjust enrichment is not established, therefore judgment for Claimant for rent arrears and costs.
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Assuming the pleadings true, it is not plain and obvious that the alleged oral agreement was incapable of performance within one year or that the Statute of Frauds applies; the pleaded facts also support discoverability in October/July 2016 so the action filed October 23, 2017 is within the two‑year limitation; plaintiff pleaded repayment of the $1,000 and performed obligations (transfer of $40,000 and payment of incorporation fees) which can constitute part performance or executed consideration — therefore the claim is not certain to fail and summary judgment on the pleadings must be denied.
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The motions judge's factual findings that no guarantee was given were reasonable and entitled to deference; in any event an oral guarantee would be unenforceable under s.4 of the Statute of Frauds, so the dismissal of the appellant's claim and the granting of the respondents' cross-motion for summary judgment were correct; the appeal is dismissed and the costs award is upheld.
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On the facts the Court upheld the motions judges: there was no binding oral settlement and the appellant failed to prove part performance because her acts were not unequivocally referable to the alleged agreement, so s.7(d) Statute of Frauds barred enforcement; further, an unregistered corporation carrying on business in Nova Scotia cannot commence or maintain proceedings connected to that business under s.17(1) of the Corporations Registration Act, and the motions judge properly remedied the defect by adding the assignor as plaintiff and ratifying the Sheriff’s sales rather than quashing pro…
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The applicant failed to establish acts of part performance unequivocally referable to the alleged oral postponement agreement; accordingly s.7(d) of the Statute of Frauds applies and the oral agreement is unenforceable; alternatively, no binding agreement was formed because essential terms and a written arrangement were not agreed before the sale, so the motion is dismissed.
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Plaintiff paid purchase monies and defendant accepted and used them but failed to convey title; defendant failed to present credible, particularized evidence of enforceable oral amendments or other defence that would raise a genuine issue for trial; therefore as a matter of law plaintiff is entitled to return of monies and summary judgment is appropriate.
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The court dismissed a summary judgment application against Shuswap on an alleged oral guarantee, finding no sufficiently immediate or tangible wider interest to bypass writing requirements.
The court refused to reopen reasons on an option-to-purchase dispute, finding the defendants had not shown the new evidence would probably change the result.
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