I. Introduction:
In Green et al. v. Gardeazabal, the Ontario Superior Court of Justice examined the legal
and equitable limits of co-ownership rights under the Partition Act, R.S.O. 1990. The applicants
sought an order compelling the sale of a jointly owned cottage investment property within one
year of the purchase. The respondent opposed the application, citing a shared intention that the
property would be held as a long-term investment and alleging oppressive conduct. Justice
Harper ultimately granted the application, finding that no enforceable agreement existed and that
the applicants’ conduct did not amount to legal oppression under the statute.
II. Alleged Investment Terms and Reasonable Expectations:
The respondent argued that she had a reasonable expectation the investment property
would be held for a minimum of two years. In support, she relied on pre-purchase
communications and notes from a January 22, 2022 dinner meeting with the applicants, which
stated: “ROI by 2 years / Break even by year 1” 1 She also referenced an email dated September
12, 2021, in which the applicants asked a real estate agent, “If we want to sell this cottage in 2
years’ time would Michael be willing to help us with it” 2 , and another email dated September 14,
2021, asking: “If we need to achieve a positive cash flow in the 1–2-year mark projections, what
limit of purchase price would you advise we look for?” 3
Justice Harper rejected the claim that these communications created binding legal
expectations. He found the dinner meeting and associated notes to be “no more than an
expression of a wish list” 4 and concluded that “[t]he expressions in the notes of the meeting with
respect to timelines… amount to planning and due diligence… not… reasonable expectations”. 5
III. Legal Framework and Application of the Partition Act:
The Partition Act provides that “all joint tenants [and] tenants in common… may be
compelled to make or suffer partition or sale of the land”. 6 Although there is a statutory right to
seek partition or sale, the court retains discretion to deny relief “in circumstances of malice,
oppression, or vexatious intent”. 7
The respondent relied on Garfella Apartments Inc. v. Chouduri and BCE Inc. v. 1976
Debentureholders to argue that she held a reasonable expectation that the investment would last
two years, and that an early sale would be unfairly prejudicial or oppressive. Justice Harper
acknowledged this legal test, explaining that oppression requires “(1) conduct that undermines the ‘reasonable expectations’ of the parties; and (2) conduct that is coercive, abusive or unfairly
disregards the interests of the minority”. 8
However, applying this standard, he found that “the evidence does not establish that there
was a reasonable expectation to hold on the Property for at least two years, viewed objectively”. 9
The respondent’s expectation, while sincerely held, was ultimately “a subjective one”. 10
IV. Judicial Reasoning and Conduct of the Parties:
The applicants were found to have acted within their rights and not oppressively. Justice
Harper concluded: “[the applicants] did not act in a manner that was in bad faith or in a manner
that was ‘burdensome, harsh and wrongful’, or an ‘abuse of power’ or a ‘visible departure from
standards of fair dealing’”. 11
He noted that “[the applicants] gave a number of options to the respondent when they
were confirming that they wanted to sell the Property” 12 , including the possibility of a buyout.
The respondent, however, did not respond constructively. Instead, “her fiancé communicated…
that they would simply allow the mortgage to automatically renew and that would not allow [the
applicants] to get out of the mortgage”. 13
The judge ultimately held that “the setting of a minimum time to hold the investment is
not a reasonable expectation given the nature of the investment” 14 , particularly in light of market
fluctuations and the absence of a formal agreement. 15
V. Legal Consequences and Broader Implications:
Justice Harper’s decision reinforces the principle that co-owners are presumptively
entitled to compel a sale under the Partition Act, and that such rights can only be displaced in
narrow circumstances. He adopted a contextual approach in evaluating the evidence,
emphasizing that “hardship to the co-tenant resisting the application would [need to] be of such a
nature as to amount to oppression”. 16
Although the respondent suffered financial hardship, having invested her life savings and
managed the property operations, this did not suffice to defeat the applicants’ legal entitlement.
The court confirmed that while equitable considerations are relevant, they must be grounded in
objective conduct and mutual expectations. Subjective belief alone is not enough to preclude
sale.
VI. Conclusion:
Green v. Gardeazabal confirms that informal discussions and good-faith beliefs about
investment timelines do not override co-ownership rights absent a clear, binding agreement.
Justice Harper’s analysis illustrates that courts will enforce the statutory rights under the
Partition Act unless compelling and objective evidence of oppression is present. The case is a
strong reminder for co-investors to document their expectations and intentions clearly,
particularly when large financial commitments and personal relationships are at stake.
VII. References
1 Green et al. v. Gardeazabal, 2023 ONSC 2683 at para 8 [Green et al.].
2 Green et al., ibid at para 17(a).
3 Green et al., ibid at para 17(b).
4 Green et al., ibid at para 27.
5 Green et al., ibid at para 28.
6 Green et al., ibid at para 24.
7 Green et al., ibid.
8 Green et al., ibid at para 44.
9 Green et al., ibid at para 26.
10 Green et al., ibid at para 29.
11 Green et al., ibid at para 30.
12 Green et al., ibid at para 31.
13 Green et al., ibid at para 32.
14 Green et al., ibid at para 29.
15 Green et al., ibid at para 13.
16 Green et al., ibid at para 24.