How have courts considered hardship in deciding not to grant a remedy under the Partition Act?

Pitt J. in Greenbanktree (at para. 27) relied on a decision of Galligan J. in Yale v. McMaster [See Note 18 below] as to the weight to be given to hardship in deciding how to exercise a discretion not to grant a remedy under the Partition Act. In my view, the guidance provided by Galligan J. in that case is particularly apt here. He held (at p. 562 O.R.): I think the weight that such a factor may have in each case will depend upon the circumstances of how, when, and why the property was purchased, the relationship of the parties or their predecessors in title at the time the property was purchased and the circumstances which have resulted directly from the relationship of the parties which existed at the time.

The fact that one co-owner wants to buy out the interest of another co-owner is not a bar to obtaining relief under the Partition Act. In Wilson v. Brown, [See Note 19 below] the applicant obtained a conveyance of his ex-wife's 50 per cent interest in a horse boarding business from her trustee in bankruptcy. The other partners wanted to carry on with the horse boarding business and made an offer to purchase the husband's interest, but at a price substantially below market value. The partners had also allowed tax arrears on the property to build up. In these circumstances, the court held that the applicant had done nothing wrong and was entitled to force the sale of the whole property even though this would result in the other partners losing the business they operated on the property. Those facts are quite different from the case now before us. [page635]