



COURT OF APPEAL FOR ONTARIO

CITATION: Spylo v. Spylo, 2016 ONCA 151

DATE: 20160225

DOCKET: C59435

MacPherson, van Rensburg and Miller JJ.A.

BETWEEN

Andrew
    Spylo
,
Annemarie Nittel
and Katherine
    Duncan

Plaintiffs (
Appellants
)

and

Gordon Spylo, personally and as Estate Trustee
    for Mike Spylo and as Estate Trustee for Antoinette Spylo and Bonnie Spylo

Defendants (Respondents)

Brendan Donovan, for the appellants

Jamie Spotswood, for the respondents

Heard: February 22, 2016

On appeal from the judgment of Justice A. Duncan Grace of
    the Superior Court of Justice, dated September 4, 2014.

ENDORSEMENT

[1]

The appellants, Andrew Spylo and Annemarie Nittel, appeal from the
    judgment of Grace J. of the Superior Court of Justice. Justice Grace dismissed
    the appellants claim against the respondent Gordon Spylo both in his personal
    capacity and in his capacity as estate trustee for the estates of Andrews and
    Gordons parents, Michael and Antoinette Spylo.

[2]

This appeal arises from a dispute between siblings over the estates of
    their parents who died in 1985 (Michael) and 1986 (Antoinette). The son Gordon
    was named as estate trustee and Gordon and the daughter Katherine were
    beneficiaries. The son Andrew was left nothing in both parents wills.

[3]

Andrew claimed that there was a secret trust created in his favour by
    the estate trustee Gordon and acquiesced in by his sister Katherine. He also
    claimed that he was entitled to the surplus proceeds from the sale of a
    property in Waterloo because Gordon held that property in trust for Andrew and
    Annemarie.

[4]

The trial judge rejected these claims. The appellants appeal on three
    grounds.

[5]

First, the appellants contend that the trial judge erred by finding that
    there was no secret trust in Andrews favour. They rely in particular on the
    evidence relating to the T3 tax forms showing monies paid to Andrew from each
    estate. The forms, enclosed in a letter to Katherine, were never provided to
    Andrew. Andrew says that these establish the existence of a trust in his
    favour.

[6]

We do not accept this submission. Gordon and Andrew represented
    themselves at their trial. The result was a huge gap in documentary evidence
    and, often, very confusing testimony. The trial judge did his best in this difficult
    context. Ultimately, he concluded:

In my view, the T3s have nothing to do with the alleged secret
    trust. They relate to a dispute that arose after Mike died in 1985. They were
    created to address issues that arose in relation to the Castlefield property
    after Gordon acquired it in 1986.

[7]

The trial judge reached this conclusion after a careful review of the
    conflicting evidence, including the testimony of Gordon and Andrew. There is
    nothing in the evidence nor in the trial judges assessment of Andrews
    credibility, and his rejection of Andrews evidence on certain points, that
    would lead us to the required label of palpable and overriding error for the
    above conclusion.

[8]

Second, the appellants submit that the trial judge erred by concluding
    that Gordon did not hold the Castlefield property in trust for Andrew after
    Gordon purchased it from Andrew.

[9]

At trial, Andrew produced one document to support the existence of this
    trust. He could not produce the original of the document and the trial judge
    drew an adverse inference against him. Gordon testified that although his
    handwriting appeared to be on the document, it was not authentic. Importantly,
    Andrew testified that Gordon gave him the document, which was dated May 15,
    1986, in Waterloo that day. However, Gordon signed an entirely different
    document, and swore it before a Commissioner in Timmins on May 15, 1986. In
    these circumstances, we cannot conclude that the trial judge committed a
    palpable and overriding error by concluding, I do not believe Andrews
    evidence concerning the creation and execution of the trust document.

[10]

Third,
    the appellants submit that a single intervention by the trial judge during
    Andrews testimony relating to other judgments against him crossed the line
    and destroyed the image of judicial impartiality.

[11]

We
    disagree. The appellants conceded that all of the other interventions by the
    trial judge in the several days of trial with self-represented litigants were
    beyond reproach and even quite helpful. In that context, the single brief
    question and comment about other judgments against Andrew do not reach the high
    threshold required for a finding of reasonable apprehension of bias.

[12]

The
    appeal is dismissed. The respondents are entitled to their costs of the appeal
    fixed at $18,000, inclusive of disbursements and HST.

J.C. MacPherson J.A.

K. van Rensburg J.A.

B.W. Miller J.A.


