In the recent decision of Buchanan v. Hemingway,[1] the Ontario Superior Court applied the equitable remedy of part performance to give effect to an oral agreement for transfer of land.

Background

Family

Elva Helen Cox (the “Deceased”) died in 2008. She was predeceased by her spouse, Herbert Raymond Cox (“Herbert”), who died in 1995.  The Deceased and Herbert were involved in farming during their lifetimes.[2]

The Deceased had five children living at the time of her passing, namely:

• Claire Cox (“Claire”) – who later passed away in 2019;
• the applicants, Bonnie Joyce Brown (“Bonnie”), Cheryl Elva Trewartha (“Cheryl”) and Sandra Lynn Plewis (“Sandra”); and
• the respondent, Patricia Gayle Hemingway (“Patricia”).[3]

The applicant, Leila Buchanan (“Leila”), is Claire’s stepdaughter. The applicant Shirley Beier (“Shirley”) is Leila’s mother and was Claire’s spouse. Claire left a Will dated December 6, 2012, that named Shirley and Leila as estate trustees.[4]

The Deceased’s Will dated February 7, 2001, named Claire and the respondent, Patricia, as her estate trustees. Claire and Patricia obtained a certificate of appointment of estate trustee in January 2009.[5]

The Bush Lot

The Deceased’s estate consisted of a farm property, various bank accounts and a parcel of land known as the “Bush Lot”, which was the subject of the dispute. The Deceased’s Will provided Claire with the first option to purchase farm property. The dispositive provisions of the Will otherwise divided the residue of her estate equally amongst her five children living on the date of her death.[6]

The parties did not dispute that most of the estate was distributed as of June 2009. Only the Bush Lot and the farm property remained to be addressed as of that date. Claire declined to exercise his option to purchase the farm property. Rather, Bonnie, Cheryl and Sandra deposed that at this time, the five beneficiaries agreed that the estate would transfer the Bush Lot to Claire, in consideration for his help with the parent’s farm operation during their lifetimes.[7]

Patricia agreed that Claire waived his right to purchase the farm property but denied that the beneficiaries agreed to transfer the Bush Lot to him instead. Moreover, she submitted that there was never any agreement to transfer the property to Claire’s step-daughter Leila either.[8]

Subsequent sequence of events

In Claire’s Will dated December 6, 2012, he transferred the Bush Lot “to my spouse’s daughter Leila Buchanan if she is alive at the time of my death”. On December 10, 2012, estate administration counsel for the Deceased’s estate, Cheryl Mason (“Ms. Mason”), wrote to Claire and Patricia concerning the Bush Lot. The letter advised that the property description was inaccurate and that a transfer would require completion of a reference plan/survey.[9]

There was no dispute that Claire paid the property taxes for the Bush Lot following the Deceased’s death. Following Claire’s passing, Patricia confirms that she forwarded all tax bills concerning the Bush Lot to his estate trustee, Shirley. Patricia claims the payments were made through a “joint farm account” that Claire held with the Deceased. Patricia acknowledged that this account did not form part of the Deceased’s Estate.[10]

Claire passed away in April 2019. In May 2019, Ms. Mason wrote to Patricia in her capacity as estate trustee of the Deceased’s estate. The letter opened with the following: “[w]e confirm that you contacted us regarding the transfer of a bush lot that was still in the Cox Estate. The query was prompted by the fact that it was intended that Claire have title to the bush lot”. The letter continued to discuss the need for a reference plan. Patricia did not deny receiving the letter but did not recall a conversation with counsel or any agreement to transfer title of the Bush Lot to Claire. Patricia speculated that someone else may have told the lawyer.[11]

In 2022, Leila and Shirley retained counsel in respect of the Bush Lot. Negotiations took place through counsel. In April 2023, Patricia called a meeting with Bonnie, Cheryl and Sandra. Patricia prepared a written memorandum, in which she noted that “I know that the 4 of us discussed the bush going to Claire to compensate him in a small way for staying around and looking after the farms. However, nothing was made legal”.[12]

The “options” identified in Patricia’s memorandum were as follows:

1. transfer the property to Leila and “sign off our inheritance”;
2. negotiate the transfer to Leila for value;
3. sell the Bush Lot and divide the proceeds among the five beneficiaries; or
4. offer to sell the property to the next generation and keep the Bush Lot in the family.[13]

Bonnie, Cheryl and Sandra depose that at the April 2023 meeting, they told Patricia they originally agreed to transfer the Bush Lot to Claire in 2009. According to the sisters, Patricia expressed shock at the decision but said she would go along with the majority and schedule a meeting with counsel to prepare the paperwork.[14]

Patricia denies she went along with her sisters. Notwithstanding, in an email dated April 23, 2023, she advised them she would not be able to meet her lawyer Ms. Mason before going away. She belayed any sense of urgency, noting that “[f]rom the meeting we had you all made your decision clear so there should be no problem”. On cross-examination, Patricia acknowledged that the “decision” was the transfer of the Bush Lot to Leila.[15]

A meeting to execute the transfer documents was scheduled for June 27, 2023. However, a week prior Patricia cancelled the meeting because of ‘mistakes’ in the paperwork. Patricia testified there were several errors, including that the Bush Lot would be transferred to Leila and not from the estate to the beneficiaries. Patricia maintains she did not give these instructions to counsel.[16]

Legal Issues

In light of the above-noted events, the issues before the Court to be determined were two-fold:

• was there an oral agreement for transfer of the Bush Lot?
• If so, is the oral agreement enforceable?

Was there an oral agreement?

The Court summarised the key legal principles of contract as follows:

• Whether a valid and binding oral agreement exists does not depend on the existence of a formal written document between the contracting parties.
• The essential terms of an oral contract for the purchase and sale of real property are the parties, the property and the price.  If these terms have been agreed on, then a contract may be found without the need for evidence of a written agreement.[17]
• The determination of whether the parties intended to contract and whether the essential terms of the contract can be determined with a reasonable degree of certainty is arrived at from the perspective of an objective, reasonable bystander in light of all the material facts.[18]
• The court should look at all the circumstances surrounding the alleged agreement to decide whether the parties came to an agreement, and if they did, to decide the terms to which they agreed.  These circumstances include words and conduct, future actions and representations by both parties, and reliance.[19].

On consideration of the evidence before him, the Honourable Justice Tranquilli found that the parties entered into an oral agreement for the transfer of the Bush Lot to Claire. A bargain was struck between Claire and the beneficiaries, for him to receive the property in recompense for his years of hard work on the farm. His Honour noted the context of the deal was important. These were not sophisticated parties but rather family members discussing the distribution of their mother’s estate on terms they deemed fair and reasonable.[20]

The Court further found that Patricia’s bald denial of such an agreement stood in stark contrast to the direct and circumstantial evidence, including:

• The position of Bonnie, Cheryl and Sandra that there was an agreement;
• The disposition of the Bush Lot in Claire’s 2012 Will;
• The letter from Ms. Mason to Patricia in 2012 regarding a transfer and survey;
• The letter of Ms. Mason to Patricia in May 2019, evincing independent inquiries concerning the transfer of the Bush Lot, which she acknowledged receiving but denies any discussions of;
• Patricia’s memorandum corroborating the 2019 letter and discussion of a transfer; and
• Patricia giving the property tax bills for the Bush Lot to Claire, and then to his estate trustee for payment. There was no legal obligation for him to pay these bills, unless Patricia considered him to have a proprietary interest in the Bush Lot.[21]

Was there an enforceable agreement?

The Court found that there was an oral agreement. The next step was to determine whether it was enforceable, which required a consideration of the following legal principles:

• The fact that a formal written document is to be prepared and signed does not alter the binding validity of the original contract.  However, an oral agreement to sell land is not generally enforceable.[22]
• Section 4 of the Statute of Frauds,[23]provides no action shall be brought upon a contract for the sale of lands unless the agreement upon which the action is brought is in writing and signed by the parties.
• However, the equitable doctrine of part performance allows the court to enforce an oral agreement where it is unconscionable to apply the Statute of Fraudsto render a contract unenforceable. If one party to an otherwise unenforceable agreement stands by while the other party acts to its detriment by performance of its contractual obligations, the first party will be precluded from relying on the Statute of Frauds to excuse its own performance.  The acts of part performance diminish the opportunity for fraudulent dealings with the land based on perjured evidence.[24]
• Two requirements must be satisfied before there can be a proper finding of part performance sufficient to avoid the requirements of s. 4 of the Statute of Frauds:
  1. detrimental reliance; and
  2. the acts unequivocally refer to the property in dispute and show some dealing with the land sufficient to indicate the existence of the alleged contract.[25]
• Detrimental reliance requires that the court be satisfied the party seeking to enforce the oral agreement acted to its detriment by irremediably carrying out its obligations under the oral agreement, while the other party stood by, making it inequitable to allow the other party to rely on the Statute of Frauds. The conduct of both parties may be considered on the question of whether there has been detriment.  It need not be shown that the detrimental reliance was more than de minimusor nominal.  There is no dollar limit or financial threshold that determines when the equitable doctrine of part performance will apply.[26]

The Court was satisfied that the applicants had established part performance through the acts of Claire, such that it avoided the requirements of the Statute of Frauds.

First, Claire waived his right to purchase the farm property with the expectation that he would receive the Bush Lot without further payment. Second, Claire facilitated the payment of the Bush Lot’s property taxes, first personally and then via his estate trustee, with express knowledge and expectation of Patricia that he would receive the property pursuant to the oral agreement. The Court did not find Patricia’s explanation that these taxes were paid from the “joint farm account” persuasive. She was aware the account did not form part of the Deceased’s estate, and the payments made sense in furtherance of the bargain struck.[27]

Concluding Comments

The Court enforced the oral agreement, thereby ordering a transfer of the Bush Lot to Leila. His Honour did not adjudicate costs and encouraged the parties to resolve the issue as between them.[28]

The decision is interesting for its use of the equitable concept of part performance to enforce an oral agreement, which would ordinarily be found invalid by virtue of the Statute of Frauds.

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[1] Buchanan v. Hemingway, 2026 ONSC 619 (CanLII) (“Buchanan”).

[2] Buchanan at para 13.

[3] Buchanan at para 14.

[4] Buchanan at para 14.

[5] Buchanan at para 17.

[6] Buchanan at para 18.

[7] Buchanan at paras 19 and 20.

[8] Buchanan at para 21.

[9] Buchanan at para 21.

[10] Buchanan at para 25.

[11] Buchanan at paras 26 and 27.

[12] Buchanan at paras 30-33.

[13] Buchanan at para 34.

[14] Buchanan at para 35.

[15] Buchanan at para 37.

[16] Buchanan at para 38.

[17] Mountain v. Mountain Estate, 2012 ONCA 806, 112 O.R. (3d) 721, at para. 66.

[18] Shifrin v. LDF Frozen Foods Inc. et al, 2025 ONSC 2095, at para. 96.

[19] Xynos v. Xynos, 2023 ONSC 830, at para 94; UBS Securities Canada Inc. v. Sands Brothers Canada Ltd., 2008 CanLII 19507 (Ont. S.C.), aff’d 2009 ONCA 328

[20] 42

[21] Buchanan at paras 43-48.

[22] Erie Sand and Gravel Limited v. Tri-B Acres Inc., 2009 ONCA 709, 97 O.R. (3d) 241, at para. 42.

[23] Statute of Frauds, R.S.O. 1990, c. S.19.

[24] Erie Sand, at paras. 49, 64.

[25] 2730453 Ontario Inc. v. 2380673 Ontario Inc., 2025 ONCA 112, at paras. 2, 25–26, leave to appeal to S.C.C. requested, 41758.

[26] 2730453 Ontario Inc., at paras. 6, 34 and 53–56.

[27] Buchanan at paras 55-57.

[28] Buchanan at paras 58-61.