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Real Property - Tenants-in-Common. Nutrition Guidance Services Inc. v. Schwartz
In Nutrition Guidance Services Inc. v. Schwartz (Ont CA, 2025) the Ontario Court of Appeal considered duelling summary judgment motions, here where the "primary issue on the motions was whether the Property was held in a partnership or as a tenancy in common [SS: which was found], and whether a sale should be ordered under the Partition Act".
Here the court considered dispensing with a tenant-in-common's consent to a sale under the Partition Act, and the remedy on error in this regard:[37] I agree with the appellants that the motion judge erred in dispensing with the appellants’ consent to the sale. The error has two aspects, one of procedural fairness and the other of substance.
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[41] A court may dispense with a co-owner’s consent to a sale if the co-owner is withholding consent unreasonably: Miller v. Miller, 2016 ONSC 3027, at paras. 37-43; Katal v. Khurshid, 2017 ONSC 3412, at para. 6.
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[44] The parties differ on the appropriate remedy for this error. The appellants ask this court to direct a reference to an associate judge of the Superior Court for sale of the Property, pursuant to rule 66.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The respondents argue that the matter should be remitted to the motion judge to set the terms for the reference.
[45] In my view it would be impractical and inefficient to return this matter to the motion judge to order the reference to an associate judge for sale of the Property. This court is equally well-placed to make that order and the terms of such an order are provided for by rule 66.02 and form 66A.
[46] I would direct a reference for sale of the Property to an associate judge of the Superior Court assigned by the Toronto Regional Senior Justice. Pursuant to rule 66.02, the terms of the order are those set out in form 66A. For greater certainty I would add the following: the associate judge may make any necessary directions to determine the procedure for the sale and to effect the sale; and any party to this proceeding may make offers to purchase the Property in the process supervised by the associate judge. . Krizans v. Skurdelis
In Krizans v. Skurdelis (Div Ct, 2020) the Divisional Court sets out some basic rights of tenants in common:[55] A tenant in common has a prima facie right to partition and sale under the Act. While s. 2 of the Act gives the court a discretion to decline to order partition or sale, such discretion can only be exercised in limited circumstances such as malice, oppression, vexatious intent or hardship amounting to oppression. See: Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 CanLII 48652 (ON CA), 75 O.R. (3d) 478 (C.A.).
[56] In addition, partition or sale will not be ordered where to do so would conflict with an agreement between the parties concerning the Property in question. See: Shabinsky v. Cohen, [1983] O.J. No. 1096 (Div. Ct.); 997897 Ontario Inc. v. 926260 Ontario Ltd., [2001] O.J. No. 3960 (SCJ); Capannelli v. Muroff, [2000] O.J. No. 5040 (SCJ), aff’d [2002] O.J. No. 191 (C.A.).
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