



COURT OF APPEAL FOR ONTARIO

CITATION: Orfus Estate v. The Samuel and Bessie
    Orfus Family Foundation, 2013 ONCA 225

DATE: 20130410

DOCKET: C54532

Laskin, Sharpe and Epstein JJ.A.

BETWEEN

Myer Botnick as an Executor named in the Last Will
    and Testament of Bessie Orfus, and Elaine Orfus and Rachel Wardinger,
    personally and as Executors named in the Last Will and Testament of Bessie
    Orfus

Applicants (Respondents/                                                                                 Appellants
    by way of cross-appeal)

and

The Samuel and Bessie Orfus Family Foundation,
    Carrie Heather Orfus- Gelkopf, Michael Abraham Orfus, Shayna Hyla Orfus,
Sharon Gerstein
, The Childrens Lawyer, Mitchell
    Gerstein and Yisraella Shira Gelkopf

Respondents (
Appellant
/
Respondent by way of cross-appeal
)

Richard B. Swan and Emrys Davis, for the
    appellant/respondent by way of cross-appeal

Clare Burns and Mandy L. Seidenberg, for the
    respondents/appellants by way of cross-appeal

Heard: June 7 and June 15, 2012

On appeal from the judgment, dated September 30, 2011,
    with reasons reported at 2011 ONSC 3043, and on cross-appeal from the costs
    endorsement, dated November 14, 2011, of Justice Michael A. Penny of the
    Superior Court of Justice.

Laskin
    J.A.:

[1]

The main issue on this appeal is whether the motion judge erred by
    granting summary judgment dismissing Sharon Gersteins challenge to the
    validity of two wills and a codicil made by her mother, Bessie Orfus.  Sharon
    contends that her challenge should have been determined after a trial.

A.

overview

[2]

Bessie Orfus died in 2009, at the age of 98.  She left an estate of
    nearly $20 million, largely derived from the successful real estate business of
    her husband, Samuel Orfus, who had predeceased her.  Samuel and Bessie Orfus
    had three children: a son, Howard, who died in 1997, and two daughters, Sharon
    Gerstein, the appellant, and Elaine Orfus, one of the respondents and estate
    trustees.

[3]

Elaine lived with her mother.  According to everyone but Sharon, Elaine
    was, in the motion judges words, a supportive, caring daughter.  Sharon
    lived next door but was estranged from both her mother and sister.  She
    communicated with them rarely, if at all.

[4]

In May 2004, Bessie Orfus made two wills.  She left Sharon shares in
    three private Orfus companies but removed her as an executor and treated her
    less generously than Elaine.

[5]

In November 2004, Sharon began oppression proceedings in respect of the
    Orfus companies.  She sued, among others, both her sister and her mother.  On
    November 17, 2004, all parties consented to or said they did not oppose the
    winding up of the Orfus companies.  As a result of the wind up, Sharon was to receive
    $9 million.  Less than a month later, on December 13, 2004, Bessie Orfus made a
    codicil to her two wills in which she cut Sharon out of her estate, save for a
    nominal $1,000 bequest.

[6]

After Bessie died, Sharon gave notice of an objection to both the two
    wills and the codicil.  She claimed that her mother lacked testamentary
    capacity, did not know and approve of the contents of the wills and codicil,
    and was unduly influenced by Elaine to sign the documents.  The respondent
    trustees moved for summary judgment to set aside the notice of objection and
    for a declaration that the wills and codicil were valid.

[7]

The motion record was substantial: 20 witnesses gave evidence;
    examinations of the witnesses yielded over 1,700 pages of evidence; and the
    exhibits took up approximately 5000 pages.  The motion was argued over three
    days.  In lengthy and thorough reasons, the motion judge, Penny J., granted
    summary judgment dismissing Sharons objection.  He held that there were no
    genuine issues requiring a trial.  He concluded that Bessie Orfus had
    testamentary capacity in May and December 2004, that she knew and approved of
    the contents of her two wills and codicil, and that the execution of her
    testamentary documents was not procured by Elaines undue influence.  However,
    he also concluded that Sharon had reasonable grounds to challenge her mothers
    testamentary capacity and therefore made no order for costs.

[8]

Sharon appeals the granting of summary judgment.  The respondents seek
    leave to appeal the motion judges refusal to award them their costs.

[9]

On her appeal, Sharon Gerstein makes four submissions.  Her first and
    main submission is that the motion judge erred by granting summary judgment
    instead of ordering a trial of the issues.  The motion judge decided this case
    before the release of our courts judgment in
Combined Air Mechanical
    Services Inc. v. Flesch
, 2011 ONCA 764, 108 O.R. (3d) 1.  Sharon submits
    that on the full appreciation test set out in
Combined Air
, summary
    judgment was not appropriate.

[10]

Second,
    Sharon submits that the motion judge erred in ruling inadmissible two voicemail
    messages left by Dr. Silberfeld, an expert capacity assessor.  Dr. Silberfeld
    met Bessie Orfus in 2004 and said that he had the impression she lacked
    testamentary capacity.  The motion judge ruled that his two voicemail messages
    did not meet either the test for the admission of hearsay or the test for the
    admission of expert evidence, largely because they were not reliable.  Sharon
    says that the motion judges ruling is wrong in law.

[11]

Third,
    Sharon submits that the motion judge erred by ruling inadmissible her evidence
    about her relationship with her mother and about her mothers lack of
    sophistication in business matters.  The motion judge ruled Sharons evidence about
    her relationship with her mother inadmissible because it was not corroborated,
    as required by s. 13 of the
Evidence Act
, R.S.O. 1990 c. E.23.  He
    also referred to s. 13 in rejecting Sharons evidence about her mothers
    business acumen.  Sharon says that her evidence on both matters was
    corroborated.

[12]

Fourth,
    Sharon submits that the motion judge erred in finding that Bessie Orfus knew
    and approved of the contents of her codicil.  Sharon says that there was no
    evidence to support this finding.

[13]

The
    respondents seek leave to appeal the motion judges costs order on two
    grounds.  First, they submit that although Sharon may have had reasonable
    grounds to begin her will challenge, the motion judge erred by failing to find
    that she did not have reasonable grounds to pursue it, in the face of the
    evidence produced on the motion.  Second, they submit that the motion judge erred
    by failing to give effect to their offer to settle.

[14]

For
    the reasons that follow, I would dismiss Sharon Gersteins appeal and refuse
    the respondents request for leave to appeal the motion judges costs order.

B.

summary of the relevant facts

[15]

In
    his reasons, the motion judge set out the factual background to this dispute. 
    I will summarize only those facts necessary to give a context to the issues on
    appeal.

(1)

Bessie Orfus character and independence in 2003-2004

[16]

The
    critical period in this litigation was 2003-2004.  The uncontradicted evidence
    before the motion judge was that in this period, despite her age, Bessie Orfus
    was independent, self-sufficient, socially active, and strong-minded.  She swam
    at least three times a week; she stayed alone in Florida for periods of a week
    or so; she took taxi cabs by herself; she spoke to her best friend almost
    daily; she visited other friends, went to charity events, musicals, theatre,
    and the movies; and she consulted with counsel alone about her wills.

[17]

Bessies
    long-time cleaning lady said that she had a strong mind, her own mind.  Her
    family doctor testified that Bessie was always engaged during her appointments
    with him.  Her dentist said that Bessie was very independent.  She wanted to do
    things for herself with no help from anyone.  The motion judge fairly concluded
    at para. 27 of his reasons, that [u]ntil the end, Bessie appears to have been
    a woman of strength and determination.

(2)

Bessies relationship with Elaine

[18]

Elaine
    lived at home with her mother and looked after her.  Undoubtedly the two had a
    close relationship and cared deeply about each other.  As Bessie got older,
    Elaine became her primary caregiver.  She drove her mother to her medical
    appointments, to Baycrest for swimming, to the hairdresser, to do household
    errands, and to shop for clothes.

[19]

In
    her eulogy at Bessies funeral, Bessies granddaughter and Howards daughter,
    Carrie, paid tribute to Elaine with these words: Elaine deserves special
    recognition as she has been my Bubis primary caregiver all these years and has
    done so much to help her live the great and long life that she did.

(3)

Bessies relationship with Sharon

[20]

Sharon
    is Bessies oldest child.  She married Marvin Gerstein, a paediatrician at Sick
    Childrens Hospital.  They had one child, a son Mitchell, who apparently did
    not work and for ten years did not speak to his grandmother.

[21]

Sharons
    husband died in 1984 but left her and her son very well-off.  Sharons parents
    were also very generous to her.  For example, they gifted Sharon the lot on
    which she and her husband built their home.  This lot was right next door to
    the house where her parents and later Bessie and Elaine lived.

[22]

Indeed,
    Sharon lived next door to her mother and Elaine for 35 years.  Yet despite
    living next door, for many years Sharon did not even speak to her mother.  In
    Bessies words, her relationship with Sharon was not good; Sharon was
    indifferent to her.

[23]

Although
    Sharon did not work outside the home, she apparently did nothing to care for
    her mother.  In the critical period of 2003-2004, Sharon admitted that she did
    not take her mother to medical appointments or shopping or swimming or to get
    groceries or to do errands.  As the motion judge aptly observed, at para. 73 of
    his reasons: Sharon had an entirely different relationship with Bessie than
    did Elaine.

(4)

The medical evidence on Bessies testamentary capacity

[24]

On
    the key question of Bessies testamentary capacity in 2004, the motion judge
    had the evidence of four doctors: Dr. Colla, Dr. Dombrower, Dr. Shulman, and
    Dr. Silberfeld.

(i)

Dr. Colla

[25]

Dr.
    Colla had been Bessies family doctor for nearly 14 years.  He saw Bessie on
    June 1, 2004, the day after she signed her two wills, and on November 25, 2004,
    two and a half weeks before she signed her codicil.  Dr. Colla testified that
    he had no cognitive concerns about Bessie on either occasion.

(ii)

Dr. Dombrower

[26]

Dr.
    Dombrower was a geriatrician at Baycrest.  He assessed Bessie in the morning of
    May 31, 2004, the day she signed her two wills.  In Dr. Dombrowers opinion,
    Bessie Orfus had testamentary capacity.

[27]

As
    part of his assessment, Dr. Dombrower conducted a Mini Mental Status
    Examination.  Bessie scored 25 out of 30.  According to Dr. Dombrower this
    score showed only mild cognitive impairment.  In his written report, Dr.
    Dombrower concluded:

Despite this mild cognitive impairment, it is my opinion that
    this lady is capable to make a Will or change her Will.  There is no question
    in my mind that she currently exhibits the capacity to understand the purpose
    of a Will and the consequences of making one and not making one.  She provided
    to me very reasonable explanations as to why certain assets were being divided
    up unequally.  I do not believe that there is coercion.  I asked Elaine to
    leave the room for a part of the assessment.  And while Mrs. Orfus did confide
    in me that occasionally Elaine and she argue, there is clearly no verbal or
    physical abuse and she tells me that she has decided to change her Will on her
    own behalf.

(iii)

Dr. Shulman

[28]

Dr.
    Shulman, another expert capacity assessor, was retained by Sharon to review Dr.
    Dombrowers report.  He did not meet with or assess Bessie himself and had no
    independent evidence of her capacity.

[29]

Dr.
    Shulman did not criticize Dr. Dombrowners administration of the Mini Mental
    Status Examination.  However, he did criticize other aspects of Dr. Dombrowers
    assessment, which the motion judge summarized, at para. 137 of his reasons:

Dr. Shulman went on to cite several specific concerns with Dr.
    Dombrower's assessment: the assessment was conducted partly in the presence of
    Bessie's daughter Elaine, who appeared to be an active participant.  In
    the circumstances Dr. Dombrower was not able to establish Bessie's independence
    of thought from her daughter Elaine; Bessie did not appear to recall that
    she had executed prior wills and codicils; Dr. Dombrower did not have the root
    wills to review with Bessie; there was no review of the nature and extent of
    Bessie's assets which were very substantial and detailed; the description of
    the family history did not make it clear whether the information came from
    Bessie herself or from Elaine

[30]

However,
    because Dr. Shulman never met or assessed Bessie Orfus, the motion judge held,
    at paras. 115 and 218 of his reasons, that at most Dr. Shulmans evidence
    showed that Dr. Dombrowers report might have been more comprehensive:

[
115
]   Sharon points to evidence
    concerning meetings with Bessie, Elaine and the lawyers to the effect that
    Elaine did most of the talking and that most of the information about Bessie's
    assets, family relationships and will instructions came from Elaine, not from
    Bessie herself.  The principal lawyer involved in drafting the 2003 and
    2004 wills was Schoenroth, who admitted that she should have contacted Bessie
    directly but it was complicated and I was trying to move things along so that I
    could come up with a draft before she [Bessie] left for Florida.



[218] Dr. Dombrowers report, while perhaps not conclusive of
    Bessies capacity, is some evidence to be considered, in the context of all of
    the evidence, including the observations of Schoenroth, Lawrie and Dr.
    Colla.  In the absence of any contrary report from another assessor, I
    fail to see how Dr. Shulmans criticism of Dr. Dombrowers report creates a
    triable issue about Bessies capacity. Dr. Shulman is simply in no position to
    comment on Bessies capacity at all.

(iv)

Dr. Silberfeld

[31]

Dr.
    Silberfeld met with Bessie Orfus on May 11, 2004.  Both after that meeting and
    two days later, he telephoned Bessies lawyer, Lorna Shoenroth, and left her
    two voicemail messages.  In the first of these messages, he said that he had
    the impression that Bessie Orfus was not capable of making her December 2003
    wills but may be capable of making a codicil.  In a second voicemail message,
    Dr. Silberfeld offered to meet with Bessie Orfus again, but another meeting
    never took place.

[32]

The
    motion judge ruled that the two voicemail messages were inadmissible because
    they were not reliable either as hearsay evidence or as expert opinion
    evidence.  Dr. Silberfeld had no files, no notes, and no recollection of
    meeting with Bessie Orfus.  Thus, he could give no evidence about what led him
    to his impression that Bessie Orfus did not have testamentary capacity.  The
    motion judges ruling is one of Sharons grounds of appeal, and I will discuss
    it later in these reasons.

(5)

The 2004 wills and the evidence of Bessies lawyers on her testamentary
    capacity

[33]

Bessie
    Orfus signed her two wills, a primary will and a secondary will, on May 31,
    2004 in front of her two lawyers from Aird & Berlis, Lorna Schoenroth and
    Barbara Lawrie.  Each lawyer testified that in her opinion, Bessie Orfus had
    testamentary capacity when she signed the two wills.  Three important
    considerations give some context to these opinions.

[34]

First,
    Bessie met three times with Schoenroth, Lawrie or both, in the absence of
    Elaine.  These meetings took place on November 20, 2003, December 8, 2003, and
    May 31, 2004.  Each meeting lasted between 20 minutes and two hours.  At each
    meeting, Bessie confirmed her testamentary instructions.  Bessie told her
    lawyers that she was leaving less to Sharon because she did not see Sharon much
    and because Sharon was taken care of.  The trial judge accepted Bessies
    explanation.  He found that Sharon held shares in the Orfus companies, received
    a $70,000 annual salary from these companies, had a beneficial interest in her
    husbands $3 million estate, and had received from her parents the lot her
    house was built on.

[35]

Second,
    Bessies lawyers prepared a chart of her assets and their values.  Bessie
    looked at the chart and acknowledged that the items and figures were accurate.

[36]

Third,
    although the two wills themselves were complicated documents, Schoenroth
    prepared a simple language memorandum of Bessies proposed dispositions. 
    Schoenroth and Lawrie reviewed the memorandum with Bessie before she signed her
    wills, and Bessie initialed each page and then signed her name at the end of
    the memorandum.  She gave understandable and compelling reasons for her
    dispositions:

I have left the largest portion of my estate to Elaine since we
    are very close, she works hard managing the Orfus companies and she takes good
    care of me.  Sharon and her son, Mitchell, were well taken care of financially
    by Sharons late husband.  Carrie was also taken care of financially by her
    late father, my son, Howard, in his will and she is in financially comfortable
    circumstances.  I have given Carrie significant funds as a gift in the past and
    I have made a significant loan to her which she has repaid.  Recently I have
    had little contact with Carrie or her children.  I have decided to leave the
    assets that I would otherwise have left for Carrie to her children, in trust.

[37]

Schoenroth
    and Lawrie still had some doubts whether Bessie knew the nature and the extent
    of her assets.  Nonetheless, each was of the opinion that Bessie had
    testamentary capacity on May 31, 2004.  Schoenroth explained why she held that
    opinion in a passage from her evidence relied on by the motion judge, at para.
    164 of his reasons:

She knew the value of her home.  She knew she had a
    cottage.  She knew she had bank accounts.  She did not understand the
    complex structure of this partnership of companies that were owned by a variety
    of family members in percentages that go to the third digit.  She did not
    understand that.  She understood that she had wealth.  She
    understood, cash-wise, what people were getting, roughly, if the estate was worth
    18 million, which is what I was trying to work with.  But she did not
    understand what the shares were worth.  I still felt she had the capacity
    to sign the will.

[38]

Lawrie
    wrote a lengthy memorandum of her and Schoenroths meeting with Bessie on May
    31, 2004.  In that memorandum, Lawrie too states her opinion that Bessie had
    testamentary capacity:

Lorna spent much of the time reviewing with Bessie Orfus the
    provisions of the Wills, changes made from previous Wills, and, in that
    connection, Bessie's relationships with her children, grandchildren and
    great-grandchildren. I took 10 pages of handwritten notes, which are included
    for the file. During the meeting, I formed the view that that Mrs. Orfus did
    have testamentary capacity, and therefore it was appropriate to have her sign
    her Wills. The purpose of this memorandum is to set out why I believe that Mrs.
    Orfus had testamentary capacity

[39]

In
    finding that Bessie Orfus had testamentary capacity when she signed her two
    wills on May 31, 2004, the motion judge relied on the opinions of Schoenroth
    and Lawrie.  He summed up his assessment of the evidence from the doctors and
    the lawyers, at para. 219-220 of his reasons:

[
219
] Thus, even if Dr. Dombrowers
    report is held not to be conclusively determinative of Bessie's capacity and is
    accorded limited weight, this still leaves, as the best evidence of Bessies
    cognitive function, Schoenroth and  Lawries evidence about their meeting
    with Bessie on May 31 and Dr. Collas notes of his June 1 meeting with Bessie. 
    Dr. Colla, I note, primarily practiced with geriatric patients.  All of
    that evidence is consistent with Bessie having had testamentary capacity on
    that day.

[
220
] And, most importantly, none of that
    evidence is contradicted, other than by Sharon's bald assertion that her mother
    never had capacity to make a will dealing with the Orfus Companies because she
    did not understand the corporate structure of her husbands real estate
    business.  Dr. Shulmans report is insufficient to demonstrate that a
    trial is required on the issue of Bessies testamentary capacity.

(6)

The oppression litigation

[40]

In
    November 2003, Carrie and her step-mother began oppression proceedings
    concerning the Orfus companies against Bessie, Elaine, Sharon, and others.  In
    February 2004, Sharon withdrew her support of Bessie in that litigation. 
    Instead, she sought to be bought out of the Orfus companies  in the motion
    judges words, at para. 281 of his reasons, thus hastening the dismantling of
    all that Samuel, Bessies husband of 50 years had built.

[41]

In
    November 2004, Sharon started her own oppression proceedings against Bessie and
    others.  On December 14, 2004, Sharon obtained an order for the winding up of
    the Orfus companies.  Bessie consented to the order.  Sharon never claimed or
    suggested to the court that Bessie lacked the capacity to give her consent.  As
    a result of the winding up of the Orfus companies, Sharon received $9 million.

(7)

The codicil

[42]

On
    December 13, 2004 the day before the winding up order was made in the
    oppression litigation, Bessie signed a codicil to her will.  As I said in the
    overview, in that codicil Bessie cut Sharon entirely out of her will except for
    a nominal $1,000 bequest.

[43]

The
    codicil was prepared by the respondent, Myer Botnick, a solicitor who had known
    Bessie for many years, and his associate Aaron Mitnick.  They received their
    instructions from Elaine.  Neither met with Bessie before December 13, and
    neither has any recollection of the meeting with Bessie at which she signed the
    codicil.  Whether, in these circumstances, the motion judge erred in finding
    that the codicil was valid is a separate ground of appeal, which I discuss
    later in these reasons.

C.

the appeal

First Issue  Did the motion judge
    erred in granting summary judgment instead of ordering a trial of the issues
[1]

[44]

Our
    new Rule 20, the summary judgment rule, came into effect on January 1, 2010. 
    Rule 20.04(2) now provides:

20.04 (2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no
    genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the
    claim determined by a summary judgment and the court is satisfied that it is
    appropriate to grant summary judgment.

20.04 (2.1) In determining under clause (2) (a)
    whether there is a genuine issue requiring a trial, the court shall consider
    the evidence submitted by the parties and, if the determination is being made
    by a judge, the judge may exercise any of the following powers for the purpose,
    unless it is in the interest of justice for such powers to be exercised only at
    a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

Oral Evidence (Mini-Trial)

20.04 (2.2)  A judge may, for the purposes of
    exercising any of the powers set out in subrule (2.1), order that oral evidence
    be presented by one or more parties, with or without time limits on its
    presentation.

[45]

The
    new Rule 20 gave judges expanded powers on motions for summary judgment.  The
    motion judge decided this case under the new Rule 20.  However, he decided it
    on September 30, 2011, about two months before this court released its decision
    in
Combined Air
.

[46]

By
    the time the motion judge decided this case, there was a good deal of
    jurisprudence from trial judges on how the new Rule 20 was to be interpreted. 
    But in
Combined Air,
at para. 35, we said that our decision marks a
    new departure and a fresh approach to the interpretation and application of the
    amended Rule 20.  The motion judge, therefore, did not have the benefit of
    this fresh approach.

[47]

As
    a benchmark, we set out a full appreciation test for deciding whether a trial
    is required in the interest of justice.  Under the full appreciation test, the
    motion judge must ask: can the full appreciation of the evidence and issues
    that is required to make dispositive findings be achieved by way of summary
    judgment, or can this full appreciation only be achieved by way of a trial?. 
    See
Combined Air,
at paras. 50-51. The question whether there is a
    genuine issue requiring a trial is a legal determination, reviewable on a
    standard of correctness.

[48]

Sharon
    submits that the full appreciation of the evidence and issues in this case
    could only be achieved at a trial.  In making this submission she relies on the
    following passage from
Combined Air,
at para. 51:

In cases that call for multiple findings of fact on the basis
    of conflicting evidence emanating from a number of witnesses and found in a
    voluminous record, a summary judgment motion cannot serve as an adequate
    substitute for the trial process. Generally speaking, in those cases, the
    motion judge simply cannot achieve the full appreciation of the evidence and
    issues that is required to make dispositive findings.  Accordingly, the full
    appreciation test is not met and the interest of justice requires a trial.

[49]

Sharon
    says that credibility lay at the heart of this dispute and that the motion
    judge was required to make highly contested findings of fact on a record replete
    with conflicting evidence.  Thus, he could not fairly decide this case by
    summary judgment.

[50]

I
    do not accept Sharons submission.  Although the motion judge did not have the
    benefit of
Combined Air
, I am satisfied that his appreciation of the
    evidence enabled him to decide by summary judgment the issues relating to
    Bessie Orfuss testamentary dispositions.  The interest of justice did not
    and does not now require a trial.

[51]

As
    I said in the overview, the record on the motion was substantial, even
    voluminous  an exhibit book of 5,000 pages and 1,700 pages of transcripts of
    evidence.  And many witnesses  20  gave evidence either by affidavit or by
    oral examination under rule 39.03.  However, the size of the record, standing
    alone, or even the number of witnesses, standing alone, is not a sufficient
    reason to send a case to trial.  The motion judge has to consider whether the
    record and the issues require the making of difficult credibility assessments or
    many findings of fact that are highly disputed because conflicting or
    contradictory evidence.  If so, then a trial is the appropriate procedure.  If
    not, then summary judgment may be appropriate.

[52]

Here,
    I do not think that this large record with its numerous witnesses yielded the
    kind of case that we said in
Combined Air
required a trial.  This is
    not a case where many witnesses said one thing and many other witnesses said
    something else.  Of the 20 witnesses who gave evidence, only three were
    proffered by the appellant: Dr. Silberfeld, Dr. Shulman, and Sharon Gerstein
    herself.  Dr. Silberfelds voicemail messages were ruled inadmissible; but even
    if they were admissible, he had no memory of his meeting with Bessie Orfus. 
    Dr. Shulman criticized some aspects of Dr. Dombrowers capacity assessment, but
    he never met Bessie Orfus or had any direct knowledge of the matters in issue.

[53]

Sharon
    Gerstein was the sole fact witness for the appellant.  However, as she hardly
    saw her mother, she knew little if anything about her mothers capacity.  Some
    of her evidence was not admissible because it was not corroborated.  And
    virtually all of her evidence was inconsistent with the testimony of the 17
    witnesses who gave evidence for the respondents.

[54]

Thus,
    the motion judge was not required to make contested findings of fact on
    conflicting evidence.  The motion judges task was to assess the evidence in
    the record and decide whether sufficient evidence existed to show whether Bessie
    Orfus had testamentary capacity and knew and approved of the contents of her
    testamentary instruments.  The motion judge was as well positioned as a trial
    judge to undertake that assessment.

[55]

This
    was also not a case where credibility was genuinely in issue.

·

Bessie Orfuss credibility was of course not in issue because she
    was no longer alive.

·

Sharon Gerstein had virtually no relationship with her mother and
    therefore no evidence to give about her mothers testamentary capacity.

·

Dr. Dombrowers credibility was not in issue.  Although aspects of
    his assessment were criticized, his credibility was not.  Moreover, he is now
    dead, so at a trial only a transcript of his evidence would be available.

·

The two Aird & Berlis lawyers, Lorna Schoenroth and Barbara
    Lawrie, were the sole surviving witnesses to the two wills.  Their evidence was
    consistent: despite some concerns, they both were of the opinion that Bessie
    Orfus had testamentary capacity.  Although Schoenroth may be criticized for
    trying to bury Dr. Silberfelds voicemail messages, no evidence was led to
    impugn either her credibility or Lawries credibility on the key issue of
    Bessie Orfuss testamentary capacity.
[2]

·

Dr. Shulmans credibility was not in issue. His evidence,
    understandably, was given less weight because he had not seen Bessie Orfus and
    could give no direct evidence of her capacity.

·

Dr. Silberfelds credibility was not in issue because he had no
    memory or notes of his meeting with Bessie Orfus.

·

Botnicks and Mitnicks credibility were not in issue because neither
    had any memory of the meeting at which Bessie Orfus signed her codicil.

·

Elaine Orfus, alone, could give evidence about what occurred when
    her mother signed the codicil to her will.

[56]

As
    this summary shows, the motion judge was not required to make and he did not
    make findings of credibility that affected his determination of the issues
    relating to the validity of Bessie Orfuss two wills and codicil.

[57]

An
    examination of the evidence relating to the question whether Bessie Orfus had
    testamentary capacity in May 2004 when she made the two challenged wills shows
    why it would not be in the interest of justice to order a trial.  The potential
    evidence on her capacity comes from Dr. Dombrower, Dr. Shulman, Dr. Silberfeld,
    Dr. Colla, Lorna Schoenroth, and Barbara Lawrie.

[58]

Dr.
    Dombrower is now dead; Dr. Shulman did not see Bessie Orfus; Dr. Silberfeld
    remembers nothing; and Dr. Colla, Schoenroth and Lawrie are consistent in their
    opinion that Bessie Orfus had testamentary capacity.  Indeed, the two lawyers
    gave evidence  uncontradicted evidence  that they met alone with Bessie Orfus
    three times and that she independently expressed her dispositive wishes  wishes
    that she confirmed by signing a plain language memorandum on May 31, 2004.  How
    then, I ask rhetorically, can it be in the interest of justice to order a
    trial?  The simple answer is that it is not in the interest of justice to do so.

[59]

Sharon,
    however, points to what she alleges is significant evidence contradicting the
    motion judges finding that Bessie Orfus knew the value of her assets.  Sharon
    contends that this is one example of an important issue for which there is
    contradictory evidence, which should be resolved at a trial.  I disagree.

[60]

The
    concern about Bessies knowledge of her assets and their value comes from the
    evidence of Schoenroth and Lawrie.  However, a competent testator does not have
    to know the precise make up of her estate.  She only need know in a general way
    the nature and extent of her property.  See
Re Schwartz,
[1970] 2 O.R.
    61 (C.A.), at p. 78, Laskin J.A. dissenting on other grounds.  In this case,
    the lawyers showed Bessie Orfus a chart of her assets, which she acknowledged
    accurately represented their value.

[61]

In
    finding that Bessie knew the value of her estate, the motion judge relied on
    her acknowledgment of the accuracy of the chart as well as on her ability to
    enumerate real estate values.  In doing so, he rejected Sharons claim that her
    mother was passive and that thus her acknowledgement should carry no weight. 
    As Bessie would not be available to testify, a trial judge could hardly be in a
    better position to make this finding.

[62]

I
    am thus satisfied that the motion judge had a full appreciation of the
    evidence and the issues needed to decide this case by summary judgment.  I
    would not give effect to this ground of appeal.

Second Issue  Did the motion judge
    err by ruling inadmissible Dr. Silberfelds two voicemail messages?

[63]

When
    Lorna Schoenroth began preparing Bessie Orfus 2003 wills, she worked at the
    law firm of Margaret OSullivan, a senior estate practitioner.  Schoenroth then
    moved to the Aird & Berlis law firm, where she continued to work on
    Bessies wills.  In February 2004, OSullivan wrote to Schoenroth and raised
    concerns about the preparation of the 2003 wills.  She recommended that Bessie
    undergo a testamentary capacity assessment and that Schoenroth prepare new
    wills.  Schoenroth followed her advice.

[64]

Schoenroth
    arranged for Bessie Orfus to see Dr. Silberfeld, an experienced capacity
    assessor, whom OSullivan had recommended.  Bessie met with Dr. Silberfeld on
    May 11, 2004, just weeks before she signed her 2004 wills.  After the meeting,
    Dr. Silberfeld telephoned Schoenroth and left a voicemail message in which he
    said that he had the impression Bessie did not have testamentary capacity. 
    The full text of his message is as follows:

Hello, its Dr. Silberfeld calling.  Ive had the opportunity
    to meet Mrs. Orfus for the first time and its my impression that today she
    would not be capable of giving her December Will, of making her December Will
    that is, and perhaps you and I should speak about this.  She may be capable of
    making a Codicil, which I think sounded to me like it might perhaps do the job,
    and we could have a look at that. 416.482.1477.

[65]

Two
    days later, Dr. Silberfeld telephoned Schoenroth again and left anther
    voicemail message in which he cast further doubt on Bessies capacity.  The
    text of the second message is as follows:

Hello, its Michel Silberfeld returning your call.  I can start
    by saying yes, youre right that Mrs. Orfus did know her relationships, that
    she had right, but that was almost the only thing that she had right.  Except a
    crude knowledge of her physical assets, she knew very little about the rest. 
    So, there were just a number of things.  Now if what youd like to do is spend
    some time educating her with respect to the Will and then send her to see me,
    youre right we should co-ordinate that.  Next week Thursday Im travelling, so
    thats not going to work.  Probably the best time would be the following week
    May 25
th
at a quarter to six again if you could co-ordinate your
    efforts that way, then lets make a tentative over the phone suggestion that
    well try to do it again at that time.  Now, of course, theres no guarantee
    that Im going to give the answers that you want, and I think that if youre
    really searching hard for the answers that you want, then maybe your best
    approach might to look around for an assessor who will give you the results
    that you want, I know that that can happen sometimes just by shopping around. 
    So, let me know how you want to proceed and Ill be happy to help in any way I
    can.

Schoenroth was sufficiently troubled by Dr.
    Silberfelds messages that she took steps to bury them  a process the motion
    judge aptly characterized as flawed.

[66]

Dr.
    Silberfeld kept no file of his meeting with Bessie Orfus and no notes of that
    meeting.  Seven years later when he gave evidence on the summary judgment
    motion, he had no memory of the meeting at all or what he did that led to his
    impression of Bessies lack of capacity.  Nonetheless, Sharon sought to tender
    Dr. Silberfelds two voicemail messages as opinion evidence of her mothers
    lack of testamentary capacity.  The motion judge ruled the voicemail messages
    inadmissible, either as hearsay that was both unnecessary and unreliable or as
    expert evidence that did not meet the test in
R. v. Mohan
, [1994] 2
    S.C.R. 9.  Sharon submits that he erred in his ruling.  I do not think that he
    did.

[67]

Dr.
    Silberfelds voicemail messages are out-of-court statements that were not
    subject to contemporaneous cross-examination.  They are, therefore, hearsay: see
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787.  Whether looked at
    under the principled approach to the admission of hearsay evidence or under the
Mohan
test for the admission of expert opinion evidence, to be
    admissible the two messages had to meet the requisite reliability criterion.

[68]

The
    motion judge ruled, at para. 206, that the two messages did not meet the
    reliability criterion for the admission of hearsay:

Perhaps more importantly, the transcripts of the voicemail
    messages are not reliable because, while I accept there is no reason to doubt
    that the voicemail messages were left and were accurately transcribed, Dr.
    Silberfeld admits to having no recollection of meeting Bessie, no recollection
    of the interview or what he did during the interview, and to having no notes,
    no file and no independent memory of anything, including leaving the
    voicemails.

[69]

More
    significantly, however, the motion judge recognized that Sharon principally
    sought to rely on Dr. Silberfelds voicemail messages as expert opinion
    evidence showing her mothers lack of testamentary capacity.  The motion judge
    rejected that basis of admissibility because as opinion evidence the two
    messages lacked reliability.  He explained in some detail why he reached that
    conclusion, at para. 209:

In my view, even if Dr. Silberfeld's impressions could be
    said to be relevant to the issue of testamentary capacity, the reliability of
    those impressions is fatally undermined by the total absence of any evidence,
    or even recall, of what he did to form that impression.  In the absence of
    a reliable scientific foundation for the proffered opinion evidence, the
    opinion itself necessarily lacks reliability.  In fact, the text of Dr.
    Silberfelds voicemails themselves suggest he did not conduct the scientific
    inquiry necessary to form a proper opinion.  Rather, he formed an impression
before
engaging in the necessary analysis, and passed that impression
    on to Schoenroth so that she could decide whether, in light of his
    impression, a proper analysis should even be undertaken.  Dr. Silberfeld
    concedes that he did not definitively conclude that Bessie lacked testamentary
    capacity.  His message confirms he was prepared to meet with Bessie again
    once she had refreshed herself about her assets and that she might, in any
    event, have capacity to execute a codicil without any further education. 
    There is, of course, in law no different standard for capacity to execute a
    codicil as opposed to a will because codicils effectively republish the
    subsisting will.

[70]

I
    agree with the reasons given by the motion judge at para. 209 and, therefore, would
    not interfere with his ruling that Dr. Silberfelds voicemail messages were
    inadmissible.  Accordingly, I would not give effect to this ground of appeal.

Third Issue  Did the motion judge
    err by ruling inadmissible Sharons evidence about her relationship with her
    mother and her mothers lack of sophistication in business?

[71]

Section
    13 of the
Evidence Ac
t states:

In an action by or against the heirs, next of kin,
    executors, administrators or assigns of a deceased person, an opposite or
    interested party shall not obtain a verdict, judgment or decision on his or her
    own evidence in respect of any matter occurring before the death of the
    deceased person, unless such evidence is corroborated by some other material
    evidence.

[72]

At
    para. 15 of his reasons, the motion judge summarized the content of s. 13 and
    its rationale:

Section 13 of the
Evidence Act
requires that there be
    corroboration of material facts alleged by an opposite or adverse party of any
    matter occurring before the death of the testator.  This requirement exists to
    address the obvious disadvantage faced by the dead: they cannot tell their side
    of the story or respond to the livings version of events:
Burns Estate v.
    Mellon
(2000), 48 O.R. (3d) 641 (C.A.).

[73]

The
    motion judge relied on s. 13 to exclude Sharons evidence about her
    relationship with her mother and referred to s. 13 when discussing Sharons
    evidence that her mother was unsophisticated in business.  Sharon submits that
    the motion judge erred because on both matters her evidence was corroborated. 
    I do not accept Sharons submission.

(a)

Sharons relationship with her mother

[74]

Sharon
    swore in her affidavit that after she had a falling out with Elaine she had
    difficulty continuing her relationship with her mother.  But she maintained
    that she continued to speak and meet with her mother outside of Elaines
    presence.  She also claimed that she had an excellent relationship with her
    mother.  Numerous witnesses testified otherwise.  Nonetheless, Sharon contends
    that Bessies granddaughter, Carrie, corroborated her evidence.  I do not think
    that she did, at least in the relevant period.

[75]

Carrie
    did testify she was aware that her grandmother would motion to Sharon through a
    window to come and visit her.  But Carrie admitted that she had not seen Bessie
    do this between September 2003 and May 2004.  Therefore, she does not
    corroborate Sharons testimony during the critical time period.

(b)

Bessie Orfuss alleged lack of sophistication in business

[76]

Sharon
    testified that her mother was not sophisticated in business matters and did not
    have the capacity to understand complex documents like wills.  Although the
    motion judge referred to s. 13 in connection with Sharons evidence on her
    mothers business acumen he did not rely on it.  Instead, he considered Sharons
    testimony and rejected it.  In doing so, he relied on the evidence of Dr.
    Dombrower, Lawrie, and Schoenroth  specifically their dealings with Bessie in
    connection with the 2004 wills.  This evidence was essentially uncontradicted.

[77]

I
    would not give effect to this ground of appeal.

Fourth Issue  Did the motion judge
    err in finding that Bessie Orfus knew and approved of the contents of her
    codicil?

[78]

Elaine
    Orfus contacted the respondent Botnick and asked him to prepare the codicil. 
    She then relayed her mothers instructions to him.  She said that she chose
    Botnick because her mother knew and liked him and because he was less expensive
    than Aird & Berlis.

[79]

Botnick
    and his associate Mitnick did not speak to Bessie Orfus about her codicil. 
    They did not have a copy of the 2004 wills that the codicil was intended to
    amend.  And although they met with Bessie Orfus on December 13, 2004 so she
    could sign the codicil, neither Botnick nor Mitnick has any recollection of the
    meeting.

[80]

The
    motion judge recognized that the execution of the codicil raised concerns.  And
    he excluded Elaines evidence about its execution because her evidence was not
    corroborated.  Although on appeal, the respondents for the first time sought to
    argue that Elaines evidence was corroborated, I would not interfere with the
    motion judges holding that it was not.

[81]

Still,
    despite the seeming paucity of the evidence surrounding the execution of the
    codicil, the motion judge found that Bessie knew and approved of its contents
    and had testamentary capacity when she signed it.  He wrote, at para. 230:

There is no doubt that the process followed to prepare and
    execute the Codicil raises many questions and provides few answers. 
    Importantly, however, there is no evidence that Bessies capacity changed between
    May 31 and December 13, 2004, the date on which the Codicil was signed. 
    There is no evidence of any medical event that occurred in Bessie's life in the
    intervening six and one half months that could have affected her
    cognition.  Indeed:

(a)   on November 5, 2004, Sharon issued her
    oppression application against her mother and did not seek the appointment of a
    litigation guardian;

(b)  on November 25, 2004, Dr. Colla saw Bessie
    and had no cognitive concerns about her;

(c)  on December 14, 2004, the court entered an
    order in the oppression proceeding in which Bessie was a party for the
    liquidation and wind-up of the Orfus Companies.  Bessie did not oppose
    this order;

(d)  during the winter of 2004, Bessie remained in
    Florida on her own for periods of a week or so at a time;

(e)  on June 22, 2005, some six months after the
    execution of the Codicil, Dr. Colla saw Bessie and had no cognitive concerns
    about her; and

(f)  in August 2004 and 2005, Dr. Colla certified
    to Baycrest that there were no neurological issues with Bessie so that she
    could participate in the swimming program there.

[82]

Sharon
    submits that the motion judge erred in making this finding.  She argues that
    the respondents had the onus to prove that Bessie knew and approved of the
    contents of her codicil and that in the absence of any evidence from Botnick
    and Mitnick they failed to do so.

[83]

This
    is the most difficult issue on the appeal.  Admittedly, Bessie Orfus duly
    signed her codicil.  And, ordinarily on proof of due execution, it will be presumed
    that the testator knew and approved of the contents of the testamentary
    instrument and had testamentary capacity.  But that presumption will not apply
    where suspicious circumstances are present: see
Vout v. Hay
, [1995] 2
    S.C.R. 876, at p. 889.  Here, the motion judge correctly found that suspicious
    circumstances existed.  They existed because Elaine provided all the
    instructions for the codicil to Botnick and because she benefited from the
    codicil by receiving half the assets that had been designated for Sharon under
    the 2004 wills.

[84]

Thus,
    the estate trustees could not rely on the presumption.  They had to prove on a
    balance of probabilities that Bessie Orfus knew and approved of the contents of
    her codicil, indeed that she had testamentary capacity.  The motion judge found
    that they met their burden, and I am not persuaded that he erred in making that
    finding.

[85]

As
    the motion judge noted, no evidence was led that Bessie Orfus lacked
    testamentary capacity in December 2004 or that her cognitive abilities had
    changed in any way between May and December 2004.  In addition to this
    negative evidence, however, there are two cogent pieces of positive evidence
    that reasonably support the motion judges finding.

[86]

The
    first and most important piece of evidence is Sharons stance in the oppression
    litigation she commenced against her mother and others.  In that litigation,
    Sharon never alleged or told the court that her mother was a party under
    disability.  Instead, she accepted her mothers consent to the winding-up of
    the Orfus companies, from which she received a $9 million payout. 
    Significantly, the winding-up order was made on December 14, 2004, one day
    after Bessie Orfus signed her codicil.

[87]

The
    second piece of evidence that supports the motion judges finding is the
    testimony of Dr. Colla, who had been Bessie Orfus family doctor for 14 years. 
    Dr. Colla saw Bessie just a few weeks before she signed the codicil.  He
    testified that when he saw her he had no concerns about her cognitive
    capacity.

[88]

For
    these reasons, the motion judge did not err in finding that Bessie knew and
    approved of the contents of her codicil and had testamentary capacity when she
    signed it.  I would not give effect to this ground of appeal.

D.

the cross-appeal on costs

[89]

In
McDougald Estate v. Gooderham
(2005), 255 D.L.R. (4th) 435 (Ont. C.A.),
    this court said that the costs rules in civil litigation apply to estate
    litigation unless one or more public policy considerations come into play.  Gillese
    J.A. set out these policy considerations, at para. 78:

The practice of the English courts, in estate litigation, is to
    order the costs of all parties to be paid out of the estate where the
    litigation arose as a result of the actions of the testator, or those with an
    interest in the residue of the estate, or where the litigation was reasonably
    necessary to ensure the proper administration of the estate.  See
Mitchell
    v. Gard
(1863), 3 Sw. & Tr. 275, 164 E.R. 1280 and
Spiers v.
    English,
[1907] P. 122.  Public policy considerations underlie this
    approach:  it is important that courts give effect to valid wills that
    reflect the intention of competent testators.  Where the difficulties or
    ambiguities that give rise to the litigation are caused, in whole or in part, by
    the testator, it seems appropriate that the testator, through his or her
    estate, bear the costs of their resolution.  If there are reasonable
    grounds upon which to question the execution of the will or the testators
    capacity in making the will, it is again in the public interest that such
    questions be resolved without cost to those questioning the wills
    validity.

[90]

The
    motion judge found that Sharon had reasonable grounds to challenge her mothers
    testamentary capacity to make the 2004 wills and codicil.

[91]

The
    motion judge also discounted an offer to settle made by the respondents about
    seven months before the motion was heard.  He was not persuaded that the
    judgment obtained by the respondents bettered their offer, but even if it did,
    he would have exercised his discretion to order otherwise under rule 49.10(1). 
    Therefore, the motion judge ordered no costs of the motion  in effect each
    side had to bear its own costs.

[92]

The
    respondents do not have a right to appeal costs.  They must first obtain the
    leave of this court to do so.  They properly acknowledge that this court rarely
    grants leave to appeal costs orders.  Costs orders are an exercise of judicial
    discretion.  A party seeking to appeal a costs order must make out a strong
    case that the judge made a reviewable error in the exercise of this discretion.

[93]

The
    respondents submit that the motion judge made two errors in the exercise of his
    discretion, either of which warrants leave being granted.  First, they submit
    that though Sharon may have had reasonable grounds to launch her will
    challenge, those reasonable grounds evaporated once the evidence unfolded and
    the motion judge erred by failing to so find.  Second, they submit that their
    offer to settle was a proper Rule 49 offer, which the motion judge should have
    given effect to because the result the respondents obtained was more favourable
    than their offer.  If leave to appeal costs is granted, the respondents seek
    substantial indemnity costs of $397,062.25 or partial indemnity costs of
    $250,000.

[94]

I
    would not grant leave to appeal costs.  In my opinion, the motion judge did not
    commit a reviewable error in the exercise of his discretion.

(a)

The application of
McDougald Estate v. Gooderham

[95]

At
    paras. 8 and 9 of his costs endorsement, the motion judge set out why he found
    Sharon had reasonable grounds to challenge the validity of Bessie Orfus wills
    and codicil:

I concluded, in effect, that while there was smoke, there was
    no fire.  However, I do not think it can be said that there were no
    reasonable grounds for Sharon to raise these challenges to Bessies capacity. 
    Bessie lived with Elaine.  There were, as I found in my Judgment, suspicious
    circumstances surrounding the execution of the Codicil.  Questions were raised,
    even by Bessies lawyers, about her capacity in relation to understanding the
    full extent of her assets.  The process followed by Aird & Berlis
    concerning Bessies testamentary capacity and, more specifically, the attempts
    to protect the 2004 Wills against the very type of challenge that was
    ultimately made, was flawed.

The fact that Sharon was unsuccessful cannot mean that it was
    unreasonable for her to have raised these questions.  Obviously, there must be
    something more.  I am, however, not satisfied that there was enough of this
    something more to warrant the conclusion that Sharons challenge to the 2004
    Wills and Codicil was unreasonable.

[96]

Of
    the considerations the motion judge referred to in para. 8, the fact that
    Bessie lived with Elaine was the sole consideration known by Sharon when she
    launched her challenge.  The other considerations only became evident as the
    evidence unfolded.  Thus, I am satisfied that the motion judge considered
    whether Sharon had reasonable grounds both to launch her challenge and to pursue
    it.  He found that she did.  He did not err in making this finding.

(b)

The respondents offer to settle

[97]

The
    respondents offered to settle the litigation on the following terms:

·

Sharon would agree that the two wills were valid and would not
    litigate their validity.

·

Sharon could proceed to trial on the question whether the codicil
    was valid.

·

Sharon would pay the respondents costs on a partial indemnity
    basis up to the date of the offer.

·

Sharon would pay the respondents costs on a substantial
    indemnity basis after the date of the offer.

Sharon did not accept the offer to settle.

[98]

The
    motion judge did not give effect to the offer.  He said at paras. 11 to 12 of
    his endorsement:

I am not sure it is correct to say that the applicants received
    a judgment better than this offer.  I say this because, in effect, all that was
    offered to Sharon was a chance to attack the Codicil which, in light of my
    Judgment, would not have been successful.

In any event, even if it could be said that the judgment was
    better than the offer, it is not, in my view, the sort of offer which, in the
    circumstances of this case, should attract liability for substantial indemnity
    costs.  Even if I agreed with the applicants about the status of the offer,
    therefore, I would have ordered otherwise under Rule 49.10.

[99]

I
    am inclined to agree with the motion judge that because of the costs component
    of the offer, the respondents did not obtain a result more favourable than
    their offer to settle.  However, even if that is not correct, the motion judge
    did not err in the exercise of his discretion by invoking the proviso in rule
    49.10, unless the court orders otherwise.

[100]

For these
    reasons, the respondents have not persuaded me that they have a case to appeal
    the motion judges costs order. I would deny leave to appeal.

E.

conclusion

[101]

I conclude that
    the motion judge did not err by:

(a)     granting
    summary judgment;

(b)     ruling
    inadmissible Dr. Silberfelds two voicemail messages;

(c)     ruling
    inadmissible Sharon Gersteins evidence about her relationship with her mother
    and rejecting her evidence about her mothers lack of sophistication in
    business matters; and

(d)     finding
    that Bessie Orfuss knew and approved of the contents of her codicil.

[102]

I would,
    therefore, dismiss Sharon Gersteins appeal.

[103]

I also conclude
    that the motion judge properly applied this courts decision in
McDougald
    Estate v. Gooderham
on costs in estate matters and that he properly
    discounted the respondents offer to settle.  Accordingly, on the respondents
    cross-appeal of the motion judges costs order, I would deny leave to appeal.

[104]

The parties may
    make brief submissions in writing on the costs of the appeal and the
    cross-appeal within 15 days of the release of these reasons.

Released: Apr. 10, 2013                                         John
    Laskin J.A.

JL                                                                     I
    agree Robert J. Sharpe J.A.

I
    agree Gloria Epstein J.A.





[1]
Summary judgment is available in will challenge cases.  See, for example,
Smith Estate v. Rotstein
, 2011 ONCA 491,
    106 O.R. (3d) 161.



[2]
See paragraph 65 of these reasons.


