



COURT OF APPEAL FOR ONTARIO

CITATION: Ross v. Canada Trust Company, 2021
    ONCA 161

DATE: 20210316

DOCKET: C67677

van Rensburg, Hourigan and Brown
    JJ.A.

BETWEEN

John Gordon Ross

Responding
    Party

(Appellant/Respondent by cross-appeal)

and

The Canada Trust Company,
    Executor and Trustee of the Estate of Sarah McMahon Grafton, deceased,
Stewart Graeme Ross, James Grafton Ross and James Henry Ross

Responding Parties

(Respondents/
Appellants
    by cross-appeal
)

Lisa S. Toner, for the appellant/respondent
    by cross-appeal

Mark A. Radulescu, for the
    respondents/appellants by cross-appeal

Jeramie Gallichan, for the respondent,
    The Canada Trust Company, Executor and Trustee of the Estate of Sarah McMahon
    Grafton, deceased

Heard: November 18, 2020 by video conference

On appeal from the judgment of Justice David
    A. Broad of the Superior Court of Justice, dated October 10, 2019.

BROWN
    J.A.:


I.        OVERVIEW

[1]

The issue on this appeal and cross-appeal is the
    interpretation of the provisions in the May 14, 1968 will of the late Sarah
    McMahon Grafton (the Will) regarding the disposition of her cottage property
    (the Cottage Property), which the estate trustee, The Canada Trust Company
    (Canada Trust), has sold. Sarahs four surviving grandchildren, the ultimate
    beneficiaries under her Will of the proceeds of the Cottage Propertys
    disposition, disagree over how the Will directs the distribution of the
    proceeds. Canada Trust moved before the court for an interpretation of the Will.

[2]

The motion judge interpreted the Will as
    directing the proceeds be distributed equally amongst the four grandchildren of
    Sarah McMahon Grafton (Sarah) alive at the end of the life interests in the
    Cottage Property created by the Will: namely, the appellant, John Gordon Ross
    (Gordon), and his brothers, the respondents Stewart Graeme Ross (Graeme),
    James Grafton Ross (Grafton), and James Henry Ross (James).

[3]

Gordon appeals, submitting that the motion judge
    erred in his interpretation of the Will. Gordon argues that the proper
    interpretation of the Will requires the net proceeds from the Cottage Property be
    divided into five equal shares, with distribution of two of the five shares to
    him. As a result, Gordon would receive 40% of the net sale proceeds, instead of
    the 25% which would result from the motion judges decision, subject to the
    result in other litigation between Gordon and his brothers.
[1]

[4]

The Respondents cross-appeal. While they agree
    with the motion judges judgment, they disagree with how he reasoned to his
    conclusion.

[5]

For the reasons set out below, I would dismiss
    the appeal and the cross-appeal.

II.       THE FACTS

[6]

The material facts are not in dispute.

The family

[7]

Sarah was an astute and successful businesswoman
    who first ran a chain of mens apparel stores and then a real estate business.

[8]

Sarah had two daughters: Sarah Margaret Ross (Margaret)
    and Mary Elizabeth Grafton (Mary).

[9]

Margaret married and had 5 children: Sarah Mary
    Jane Ross (Jane); Gordon; Graeme; Grafton; and James.

[10]

Mary never married and had no children.

[11]

Sarah died in 1971. At the time of her death,
    all of Sarahs grandchildren were alive.

[12]

In 1992, Jane unexpectedly died, intestate and
    without a spouse or issue. As a result, Janes mother, Margaret, and her father
    were the beneficiaries of Janes estate. Margarets husband died in 1997. Under
    Margarets will, her entire estate, including any residue in Janes estate,
    passed to Gordon. However, the Respondents are challenging the validity of that
    will.

The Cottage Property

[13]

Sarahs Cottage Property on Lake Rosseau was the
    familys central gathering place. It was a focal point of Sarahs life and she
    strove to make it a family compound. All of her grandchildren spent their
    summer vacations at the Cottage Property.

[14]

Sarah died in 1971. Under her Will,
[2]
her two daughters, Mary and Margaret, were given life interests in
    the Cottage Property.

[15]

Mary died in 2002, unmarried and without issue.

[16]

Margaret continued to use the Cottage Property
    following her sisters death. Margaret was unable to meet her responsibility to
    pay the Cottage Propertys expenses. On April 19, 2013, Canada Trust, as estate
    trustee, obtained an order permitting the sale of the Cottage Property. The
    Cottage Property was sold in August 2013. Net proceeds of approximately $1.66
    million were realized, from which Canada Trust paid certain Cottage Property
    expenses. The balance was held by Canada Trust in a Cottage Trust account.

[17]

Margaret died on December 15, 2015, and her life
    interest in the Cottage Property ended. As of the date of Margarets death,
    approximately $1.138 million remained in the Cottage Trust for distribution.

[18]

Canada Trust proposed to distribute the net sale
    proceeds equally to the four grandchildren of Sarah then alive. Gordon
    objected. In 2016, Canada Trust made interim distributions to the four
    surviving grandchildren of $200,000 each.

[19]

At the time Canada Trust moved before the court
    for an interpretation of the Will and directions, roughly $340,000 remained in
    the Cottage Trust.

The Will

[20]

Clause 3(C) of the Will deals with Sarahs
    Cottage Property. It is a lengthy clause. For ease of reference, I have taken
    the liberty of dividing the relevant parts of clause 3(C) into separate
    paragraphs, followed by the Wills general residue provision, clause 3(I)(iii):

Clause 3(C):

To hold my [Cottage Property] [ ... ] during
    the lifetime of my daughter, MARY ELIZABETH GRAFTON, and to permit my said daughter,
    MARY ELIZABETH GRAFTON, to use and enjoy the cottage [ ... ] and further
    providing that my said daughter, SARAH MARGARET ROSS, may use and enjoy the
    cottage [ ... ]

Upon the death of the
    survivor of my said daughters
, MARY ELIZABETH GRAFTON
    and SARAH MARGARET ROSS,
t
o
    convey and transfer the said property

to my grandchildren as joint tenants
and not as tenants in common
provided

however
failing unanimous agreement
among my grandchildren to accept transfer of the property in their
    names as joint tenants and not as tenants in common
my Trustees are directed to sell the property
, but not to any of my grandchildren but
to strangers
and to
hold the residue of the
    sale of the said property in trust for my
said grandchildren
in equal
    shares
to be distributed
to them
in accordance
    with the provision of the residue to which my said grandchildren are entitled
    under Clause 3(I)(iii) of this Will.


I
further empower my Trustees
should
    they in their absolute discretion deem advisable in the light of future events
    or circumstances not at this time determinable
to sell such real property and to invest the proceeds
and the income derived therefrom is to be paid equally to my
    daughters, MARY ELIZABETH GRAFTON and SARAH MARGARET ROSS, during their lifetime
    or all to the survivor
and on the
    death of the survivor of my said daughters to hold the residue of the sale of
    such property in trust for my
said
    grandchildren
in
    equal shares to be distributed to them in accordance with the provision of the
    residue to which my said grandchildren are entitled under Clause 3(i)(iii) of
    this my Will
. [Emphasis added.]

Clause 3(I):

To divide the rest and residue of my Estate
    into six equal parts to be dealt with as follows:

(i)      To pay or transfer three of such
    equal parts to my daughter, the said MARY ELIZABETH GRAFTON

(ii)      To pay two of such equal parts to my
    daughter, the said SARAH MARGARET ROSS

(iii) To divide one of such equal parts among
    the issue of my daughter, the said SARAH MARGARET ROSS, living at my death, in
    equal shares per stirpes

[21]

No evidence was led on the motion from the file
    of the solicitor who drafted the Will.

III.      THE REASONS OF THE MOTION JUDGE

[22]

Before the motion judge, the Respondents argued
    that the Will required the net proceeds of the sale of the Cottage Property to
    be divided amongst those grandchildren alive at the time of the sale of the
    Cottage Property. Since Jane had died prior to that event, the proceeds should
    be divided equally amongst the four surviving grandchildren.

[23]

In opposing his brothers position, Gordon
    argued that the proceeds should be distributed in accordance with clause
    3(I)(iii) of the Will, which requires the residue of Sarahs estate to be
    divided in a way that would include the issue of Margaret living at Sarahs
    death per stirpes. That would include Jane and the beneficiaries of her
    estate, arguably Gordon. As a result, the net proceeds should be divided into
    five equal shares and then distributed, with two of the shares going to Gordon
    as the beneficiary of Margarets estate, which would include any interest of
    Jane in her grandmothers estate.

[24]

The motion judge held that the Will, interpreted
    with the assistance of the armchair rule, disclosed that Sarah intended the
    net sale proceeds of the Cottage Property to benefit only those grandchildren
    alive at the end of the life interests of Sarahs daughters, Mary and Margaret.

[25]

I propose to summarize the motion judges
    reasons in some detail as I intend to refer back to the summary when examining
    the grounds of appeal. In reaching his conclusion, the motion judge reasoned as
    follows:

(i)

Clause 3(C) of the Will provided that upon the
    death of the survivor of Sarahs daughters, the Trustees were to convey the
    Cottage Property to Sarahs grandchildren as joint tenants and not as tenants
    in common. Such a conveyance would only occur if the grandchildren unanimously
    agreed to accept the transfer in their names. The motion judge reasoned that
    this arrangement evidenced an intention that only Sarahs grandchildren alive
    at the end of the daughters life interests could be the recipients of the
    conveyance. Consequently, the estate of a grandchild who had died prior to the
    end of the life interests could not hold an interest in the Cottage Property as
    a joint tenant: at para. 29;

(ii)

Clause 3(C) stipulated that if the grandchildren
    did not agree to accept transfer of the Cottage Property as joint tenants, the
    Cottage Property was to be sold to strangers, with the residue of the sale
    of the said property to be held in trust for my said grandchildren in equal
    shares. The said grandchildren were those alive at the end of the life
    interests: at para. 33;

(iii)

Clause 3(C) also empowered the Trustees in their
    absolute discretion to sell the Cottage Property in circumstances other than
    the death of the survivor of Mary and Margaret. In that case, the Trustees were
    to invest the proceeds in trust for her daughters during their lifetimes and,
    upon the death of the survivor of them, hold the residue of the sale of such
    property on the same trust as the residue resulting from a sale to a stranger
    after a failure of the grandchildren to agree to take title as joint tenants,
    namely for my said grandchildren. In the motion judges view, the use of the
    word said in reference to my grandchildren must be taken to refer to an
    earlier mention of my grandchildren. The use of the words my grandchildren
    immediately preceding the use of the phrase my said grandchildren was in
    reference to the prohibition of any conveyance to any of my grandchildren in
    the event that there was no unanimous agreement among my grandchildren to
    accept a transfer in their names as joint tenants. Accordingly, this referred
    only to those grandchildren alive at the end of the life interests: paras. 32
    and 33;

(iv)

Most of the language in clause 3(C) evidenced
    that Sarah intended the beneficiaries of the trust of the residue of the sale
    of the Cottage Property following either a sale to a stranger or a sale by the
    Trustees in their discretion to be the grandchildren who survived the end of
    the life interests, which would not include Jane: at para. 34;

(v)

However, the motion judge found that the two
    references in clause 3(C) to clause 3(I)(iii) created an interpretative
    difficulty. One reference was located at the end of that part of clause 3(C)
    dealing with a sale to a stranger in the event the grandchildren refused to
    take as joint tenants;
[3]
similar language appeared at the end of clause 3(C) that dealt with a sale
    prior to the death of the last daughter;
[4]

(vi)

Since clause 3(I)(iii) directed a division
    among the issue of Margaret living at my [Sarahs] death, this would
    include Jane, who was alive when Sarah died but passed away prior to the end of
    the life interests: at paras. 35 and 36;

(vii)

A conflict therefore arose between the directions in clauses 3(C)
    and 3(I)(iii) in a situation where one of Sarahs grandchildren had died after
    her but before the last to die of the life tenants. Consequently, the motion
    judge was unable to ascertain Sarahs intention solely from the plain meaning
    of the language used in the Will: at paras. 28 and 37.

[26]

At this point, the motion judge applied the armchair
    rule, which calls on the court to put itself in the position of the testator
    when she made her Will, armed with the same knowledge that she had, based upon
    the evidence available: at para. 40.

[27]

As formulated by the motion judge, the proper
    question to ask was whether at the time Sarah made her Will, she intended to
    permit the beneficiaries of one or more deceased grandchildren, whoever they
    might be, including a spouse, to take an interest in the Cottage Property or
    its sale proceeds: at para. 42. Based on his review of the circumstances
    surrounding the creation of the Will, he concluded Sarah had not: at para. 46.

[28]

The motion judge directed that Canada Trust
    distribute the residue of the Cottage Trust amongst the four surviving grandchildren
     the appellant and the Respondents  in equal shares: at para. 47.

IV.     THE ISSUES

[29]

The appeal and cross-appeal raise two issues:

(i)

Did the motion judge err in resorting to the armchair rule in
    interpreting clauses 3(C) and 3(I)(iii) of the Will?

(ii)

Did the motion judge err by failing to apply the presumption of
    early vesting to the grandchildrens interests in the Cottage Property?

V.      STANDARD OF REVIEW

[30]

Relying on the 2004 decision of this court in
Noik
    v. Noik
(2004), 186 O.A.C. 104 (C.A.), Gordon submits that correctness is
    the proper standard of review for the interpretation of the language in a will.
    In
Noik
, this court stated at para. 5:

I begin with several points of agreement
    between the parties. First they both say that the proper standard of review in
    this court is that of correctness. I agree since the central issue is the
    interpretation of the wording of the contested provision in the will.

[31]

The Respondents submit that the errors Gordon
    alleges the motion judge made involve questions of mixed fact and law, subject
    to review for palpable and overriding error.

[32]

In
Alberta Giftwares Ltd. v. R
., [1974]
    S.C.R. 584, the Supreme Court stated that the legal effect to be given to the
    language employed in a will is a question of law. However, the court did so in
    the context of a more general statement that in construing a will, deed,
    contract, prospectus or other commercial document, the legal effect to be given
    to the language employed, is a question of law : at p. 588.  In
Sattva
    Capital Corp. v. Creston Moly Corp.,
2014 SCC 53, [2014] 2 S.C.R. 633, the
    Supreme Court changed the standard of review for written contracts, adopting a deferential
    standard for the interpretation of the language in a written contract: at
    paras. 50-53.

[33]

Sattva
was
    decided a decade after
Noik.

Sattva
s deferential standard of
    review has been applied to the interpretation of a will by this court in
Trezzi
    v. Trezzi
, 2019 ONCA 978, 150 O.R. (3d) 663, at para. 15, the Court of
    Appeal of Manitoba in
Zindler v. The Salvation Army et al.
, 2015 MBCA
    33, 319 Man. R. (2d) 16, at para. 10, and the Court of Appeal of Alberta in
Hicklin
    Estate v. Hicklin
, 2019 ABCA 136, 85 Alta. L.R. (6th) 1, at paras. 10 and
    94-95. As this court stated in
Trezzi
, at para. 15:

Just as the interpretation of a contract in
    light of its surrounding circumstances is now subject to review (absent an
    extricable error of law) only for palpable and overriding error, in my view,
    the same is true for the interpretation of a will in light of its surrounding
    circumstances.

[34]

Accordingly, the decision of this court in
Trezzi
has superseded that in
Noik
, in light of the decision of the Supreme
    Court in
Sattva
.

VI.     FIRST ISSUE: THE APPLICATION OF THE
    ARMCHAIR RULE

The issue stated

[35]

Both Gordon and the Respondents submit that the
    motion judge erred in finding that the directions in clauses 3(C) and 3(I)(iii)
    of the Will were irreconcilable and there was a need to resort to the armchair
    rule. In their view, Sarahs intention can be discerned from her Wills plain
    language, although they advance diametrically opposed interpretations of that
    language.

The governing principles

[36]

When interpreting a will, a courts task can be
    stated simply: it is to
determine the testators actual
    or subjective intention as to how she intended to dispose of her property
:
Trezzi
,
    at para. 13.

[37]

The basic approach to the construction of a will
    was described by this court in
Burke (Re),
[1960] O.R. 26 (C.A.), at
    p. 30:

Each Judge must endeavour to place himself in
    the position of the testator at the time when the last will and testament was
    made. He should concentrate his thoughts on the circumstances which then
    existed and which might reasonably be expected to influence the testator in the
    disposition of his property. He must give due weight to those circumstances in
    so far as they bear on the intention of the testator. He should then study the
    whole contents of the will and, after full consideration of all the provisions
    and language used therein, try to find what intention was in the mind of the
    testator. When an opinion has been formed as to that intention, the Court
    should strive to give effect to it and should do so unless there is some rule
    or principle of law that prohibits it from doing so.

[38]

While a key element of
Burke
s
approach to will interpretation is, of
    course, studying the documents contents  not only the provisions in dispute
    but the entire will  its approach also includes the use of what is known as
    the armchair rule. Ian Hull and Suzana Popovic-Montag,
Feeneys Canadian
    Law of Wills
, 4th ed. (Toronto: LexisNexis, 2020) at §§10.45 and 10.46,
    describes the armchair rule as follows:

In the first instance, the court may not be
    convinced that the testators intention can be discerned from the will itself.
    In such a situation, since the testator must be taken to have used the language
    of the will in view of the surrounding circumstances known to him or her when
    he or she made his or her will, evidence of such circumstances is necessarily
    admissible, at least insofar as it corresponds to the facts and circumstances
    referred to in the will. It seems obvious that a court might conclude that
    admissible evidence of surrounding circumstances is not helpful in determining
    meaning.



The court puts itself in the position of the
    testator at the point when he or she made his or her will, and, from that
    vantage point, reads the will, and construes it, in the light of the
    surrounding facts and circumstances. This approach is commonly referred to as
    the armchair rule.

[39]

Sitting in the place of the testator, the court
    assumes the same knowledge the testator had, at the time of making the will, in
    regard to the nature and extent of her assets, the makeup of her family, and
    her relationship to its members:
Stuart v. Stuart
, 2019 ONSC 4328, 49
    E.T.R. (4th) 306, at para.
9;
Dobson Estate v.
    Dobson
(2000)
, 32 E.T.R.
    (2d) 62 (Ont. S.C.), at para.
8;
Shamas (Re)
,
    [1967] 2 O.R. 275 (C.A.), at p. 279, citing
Perrin v. Morgan
, [1943]
    A.C. 399 (U.K. H.L.), at pp. 420-21.

[40]

In the past, courts usually have resorted to the
    armchair rule where the testators intention cannot be ascertained from the
    plain meaning of the wills language:
Dice v. Dice Estate
, 2012 ONCA
    468, 111 O.R. (3d) 407, at para. 37.

[41]

More recently, courts are treating the armchair
    rule as an over-arching framework within which a judge applies the various
    tools for will construction at his or her disposal. As put by the Court of
    Appeal of Manitoba in
Zindler
, at para. 14:

Feeneys
[
Canadian
    Law of Wills
] concludes that the most recent trend in Canadian cases
    seems to indicate that evidence of surrounding circumstances should be taken
    into account in all cases before a court reaches any final determination of the
    meaning of words (at para. 10.54).  This is true even if the words,
    themselves, do not appear to be ambiguous or unclear

Analysis

[42]

Both parties submit that the motion judge erred
    by resorting to the armchair rule, although they propose conflicting ways to
    rectify that error. I am not persuaded by their submissions.

[43]

First, the interpretative methodology applied by
    the motion judge was sound. He tried to discern Sarahs intention from the
    plain meaning of the Wills language. Finding himself unable to do so, he then
    took a step back to consider the bigger picture of the surrounding
    circumstances, applying the armchair rule. That methodology tracked the
    approach described by this court in
Dice
, at paras. 36-38.

[44]

Second, I am not persuaded by either partys submission
    that the motion judge erred in perceiving an inconsistency, or
    irreconcilability, between clauses 3(C) and 3(I)(iii).

[45]

Gordon submits that no inconsistency exists
    because clause 3(C) contemplates two different scenarios. In the first, the
    Cottage Property remains unsold until Sarahs surviving daughter dies; in the
    second, the trustees sell the Cottage Property before the surviving daughter
    dies. In the first scenario, the testators use of the words said
    grandchildren refers to grandchildren alive at the end of the daughters life
    interests; in the second, it refers to any grandchildren alive at the
    testators death.

[46]

For their part, the Respondents argue that
    Sarahs specific direction to convey the Cottage Property to her grandchildren
    as joint tenants precludes the possibility that one of her grandchildrens
    estates could hold an interest in the Cottage Property under either scenario
    advanced by Gordon.

[47]

I do not agree with either submission on the
    plain meaning of clause 3(C)s language. As to Gordons submission, I agree
    with the motion judges reasoning, summarized above in paras. 25(i)-(iv), that
    apart from the two references in clause 3(C) to the general residue clause
    3(I)(iii), the language used in the rest of the clause shows that Sarah
    intended the beneficiaries of the trust of the Cottage Propertys sale proceeds
    to be her grandchildren alive at the end of her daughters life interests. The
    testators first reference to my grandchildren in clause 3(C) is found in the
    direction to transfer the Cottage Property to my grandchildren as joint
    tenants. That direction is premised on a conveyance only to the grandchildren
    alive at the end of the daughters life interests, a point the motion judge
    noted that Gordon conceded: at para. 30. If those grandchildren will not all
    take as joint tenants, then the trustees are to sell the Cottage Property to a
    stranger, not to any of my grandchildren, which means those alive to take a
    conveyance as joint tenants.

[48]

The four subsequent references to grandchildren
    in clause 3(C) are to my said grandchildren: two are used in the scenario
    where the trustees must deal with the proceeds of a sale to a stranger
    following the death of the last daughter; the other two are used in the
    scenario where the trustees sell the Cottage Property before the death of the
    last daughter. All four of the references to my said grandchildren plainly refer
    back to the initial reference to my grandchildren as joint tenants, namely those
    alive at the end of the daughters life interests.

[49]

As to the Respondents submission, it fails to
    deal with the Wills references in clause 3(C) to the distribution directions contained
    in clause 3(I)(iii), the general residue clause. Although Sarah gave discrete
    directions to her trustees in clause 3(C) about how to deal with the Cottage
    Property, as distinct from the rest of her estate, she resorted to her Wills
    general residue clause to deal with the proceeds from any sale of the Cottage
    Property. The general residue clause directed the distribution of part of the
    residue among the issue of my daughter, the said SARAH MARGARET ROSS, living
    at my death. I agree with the motion judge that incorporating the distribution
    directions contained in the general residue clause, clause 3(I)(iii), within
    the specific provisions of clause 3(C) dealing with the Cottage Property, created
    a patent inconsistency.

[50]

Given that inconsistency, the motion judge
    resorted to the armchair rule, stating at paras. 43-46:

The affidavit evidence filed by Gordon
    indicated that it was the Testator's wish that the Cottage Property stay in the
    family and she was emphatic that her grandchildren, and not their spouses,
    maintain control of it.

It is evident from a review of para. 3(C) of
    the Will that the Testator, by directing that her grandchildren ultimately
    receive the Cottage Property as joint tenants and not as tenants in common,
    sought to ensure, to the extent possible, that it remain in her immediate family.

The Testators desire to keep the Cottage
    Property in the family would be potentially frustrated if the estate of a
    deceased grandchild could receive an interest in it.

There is nothing in the available evidence, and
    nothing to be discerned from the Will as drafted, that would support a finding
    that the Testator intended the estate of a deceased grandchild to receive an
    interest in the Cottage Property or in its proceeds of sale. To the contrary, I
    find from the available evidence and a review of the Will as drafted, that the
    Testator intended to so benefit only those grandchildren alive at the end of
    the life interests.

[51]

I see nothing in that reasoning that would
    justify appellate intervention. The motion judges conclusion does not reveal
    any palpable and overriding error and is well supported by the evidence.

[52]

Finally, the Respondents have advanced by way of
    a cross-appeal their complaint that the motion judge failed to rely solely on
    the plain meaning of the will. They do not cross-appeal the Judgment; they
    agree with it. Instead, they purport to cross-appeal from the motion judges
    reasons, contending that he erred in ruling that Sarahs intent could not be
    determined having regard to the plain and ordinary meaning of the words in the
    Will. They seek a judgment that the Cottage Trust proceeds be divided into four
    equal shares based on the Testators intent as determined from the plain and
    ordinary meaning of the words in the Will.

[53]

The Respondents cross-appeal reflects a
    misunderstanding of the nature of an appeal. As s. 6(1)(b) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43, states, an appeal lies to this court
    from a final order of a judge of the Superior Court of Justice, save for orders
    from which appeals lie to the Divisional Court. The authorities are clear: an
    appeal lies from the order or judgment, not the reasons for them:
R. v.
    Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 4. This important
    distinction is explained succinctly in John Sopinka, Mark Gelowitz & W.
    David Rankin,
Sopinka and Gelowitz on the Conduct of an Appeal
,
4th ed. (Toronto: LexisNexis, 2018), at
§
1.11:

It is a fundamental premise in the law of
    appellate review that an appeal is taken against the formal judgment or order,
    as issued and entered in the court appealed from, and not against the reasons
    expressed by the court for granting the judgment or order. Although the
    appellate court will frequently discover in the reasons for judgment errors of
    law that ultimately ground the reversal of the judgment or order, it is the
    correctness of the judgment or order that is in issue in the appeal, and not
    the correctness of the reasons.

[54]

Accordingly, the Respondents cross-appeal is
    misconceived and without merit. It was open to the Respondents to take issue
    with the reasoning of the motion judge in their factum, while making the point
    that the alleged error in reasoning did not taint the motion judges ultimate
    conclusion.

[55]

For these reasons, I would not accede to this
    ground of appeal.

VII.    SECOND ISSUE: THE PRESUMPTION OF
    EARLY VESTING

The issue stated

[56]

In his factum, Gordon raises an issue not set
    out in his notice of appeal. He contends that the motion judge failed to apply
    the presumption of early vesting to determine when the grandchildrens
    interests in the cottage vested. According to Gordon, had he done so, the
    motion judge should have concluded that the Cottage Property vested in the
    grandchildren alive at Sarahs death because when a gift made in a will is
    deferred due to a life interest given to another person, vesting takes place at
    the death of the testator.

Analysis

[57]

The law presumes that a testator intends for
    interests to vest at his or her death or at the earliest moment thereafter as
    is consonant with the terms of the will: Albert H. Oosterhoff et al.,
Oosterhoff
    on Wills,
8th ed.
(Toronto:
    Thomson Reuters, 2016), at §17.3.2. An instance of the application of this
    presumption, upon which Gordon relies, is where there is a direction to pay the
    income of a fund to one person during his lifetime and to divide the capital
    among certain other named and ascertained persons on his death, even though there
    are no direct words of gift either of the life interest or of the capital. In
    those circumstances the rule is that vesting of the capital takes place in the
    remaindermen at the time of the testators death
: Browne v. Moody
,
    [1936] O.R. 422 (U.K. P.C.), at p. 427.

[58]

However, the presumption of early vesting is
    just that  a presumption. Like any presumption, it may be displaced by a
    finding regarding the actual intention of the testator as reflected in her
    will. As put in
Feeneys Canadian Law of Wills
, at §§17.7 and 17.8:

The courts are inclined to hold a gift as
    vested rather than contingent wherever the particular words used, and the will
    as a whole, admit of a construction that will result, as is said, in early
    vesting. That inclination has always been said to be particularly strong where
    the property is land. It is accurate to refer to the tendency of courts to call
    gifts vested as a presumption to that effect, so it can be said that gifts
    are to be held to be vested unless there is a clear condition precedent.
    Accordingly, a gift, whether a devise or a legacy, that makes no reference to
    the time of vesting should always be held to take effect at the testators
    death, unless that date of vesting would disturb provisions already made in the
    will, or unless the will, as a whole, evinces a clear intention that the gift
    operate contingently and at a later date.

The recent trend of jurisprudence has been to
    strive to establish and implement the actual intentions of the will-maker.
    Consequently, the presumption in favour of early vesting as well as any other
    rules of construction may be applied only if the courts have some doubt about
    the will-makers intention.

[59]

The reasons of the motion judge disclose that he
    understood Gordon was arguing that Sarahs gift of the Cottage Property vested
    in all her grandchildren, including Jane, who were alive at Sarahs death,
    whereas the Respondents were contending that the words used by Sarah in her
    Will indicated an intent to postpone the vesting of the grandchildrens
    interest until the death of the last life tenant: at paras. 19 and 26. In the
    result, after applying the armchair rule, the motion judge found that Sarah
    did not intend the estate of any grandchild who died after her and prior to the
    end of the daughters life interests to receive an interest in the Cottage
    Property or the proceeds of its sale. Central to that conclusion was the motion
    judges finding that Sarah desired to keep the Cottage Property in the family,
    a desire that potentially would be frustrated if the estate of a deceased
    grandchild could receive an interest in it: at para. 45. That finding rested
    heavily on the language of clause 3(C) that the grandchildren receive the
    Cottage Property as joint tenants, not tenants in common: at para. 44. Given
    the motion judges certainty about Sarahs intention, there was no need for the
    motion judge to resort to the presumption of early vesting.

[60]

For these reasons, I am not persuaded by this
    ground of appeal.

VIII.   DISPOSITION

[61]

For the reasons set out above, I would dismiss
    the appeal and cross-appeal.

[62]

In accordance with the
    agreement of the parties, Gordon shall pay the Respondents their costs of the
    appeal fixed in the amount of $15,000, inclusive of disbursements and
    applicable taxes.

Released: March 16, 2021 K.M.v.R.

David Brown J.A.

I agree. K. van Rensburg J.A.

I agree. C.W. Hourigan J.A.





[1]
Gordon and his brothers are engaged in litigation regarding their
    mothers will.



[2]
Sarah made three codicils to the Will: June 21, 1968; February 24,
    1970; and September 14, 1970. Their provisions do not play a role in this case.



[3]
[T]o
    hold the residue of the sale of the said property in trust for my said
    grandchildren in equal shares to be distributed to them in accordance with the
    provision of the residue to which my said grandchildren are entitled under
    Clause 3(I)(iii) of this Will.



[4]
[T]o
    hold the residue of the sale of such property in trust for my said grandchildren
    in equal shares to be distributed to them in accordance with the provision of
    the residue to which my said grandchildren are entitled under Clause 3(i)(iii)
    of this my Will.


