



COURT OF APPEAL FOR ONTARIO

CITATION: Mountain v. TD Canada Trust Company, 2012 ONCA 806

DATE: 20121122

DOCKET: C52989

Winkler C.J.O., Armstrong and Watt JJ.A.

BETWEEN

William Gary Mountain

Plaintiff (Appellant)

and

TD Canada Trust Company, Estate Trustee During
    Litigation for the Estate of John Nixon Mountain, deceased, TD Canada Trust
    Company, Estate Trustee During Litigation for Helen Elizabeth Mountain and
    Louanne Elizabeth Mountain

Defendants (Respondents)

Ronald S. Sleightholm, for the appellant

Mary Anne Cummings, for the respondents

Heard: May 25, 2012

On appeal from the judgment of Justice Gordon D. Lemon of
    the Superior Court of Justice, dated October 26, 2010, and from the costs judgment,
    dated June 28, 2011.

Winkler
    C.J.O.:

A.

Overview

[1]

This appeal arises from an unfortunate dispute between a brother and a
    sister over their late parents property. The appellant, Gary Mountain, and the
    respondent, Louanne Mountain, are the son and daughter of the deceased, John
    Nixon (Jack) Mountain and Helen Elizabeth Mountain.

[2]

Jack and Helen owned and operated a Holstein dairy farm in Caledon,
    Ontario. The farm has been in the Mountain family since 1830. Gary worked on
    the farm as a full-time occupation for 24 years. He is the fifth generation of
    Mountains to operate the farm.

[3]

Gary contends that he had an oral agreement with his parents that if he
    stayed on the farm and farmed with them, and if farming was his main occupation,
    he would receive the farm land and its assets after his parents stopped
    farming.

[4]

Garys only sibling, his sister, Louanne, worked off the farm and was
    not involved in running the farming operation.

[5]

Jack died suddenly of cancer on November 28, 2001. The farm land and most
    of the farm assets had not been transferred to Gary before he died. Helen had
    been diagnosed with Alzheimers disease in 1999.

[6]

Jack and Helen Mountain had identical wills. Each left all of his/her
    estate to the other absolutely, or if either spouse died first, the estate
    would go to Gary and Louanne to share and share alike. Gary and Louanne were
    named as the executors under both wills.

[7]

On December 27, 2004, Gary commenced an action seeking a declaration
    that he is beneficially entitled to the farm property and farm business.
[1]
Gary named his fathers estate, his mother and Louanne as defendants.

[8]

Louanne filed a defence in which she denied her brothers entitlement to
    the farm property and business. She also filed a counterclaim and asked for an
    accounting by Gary for his use of the farm property and business since Jacks
    death.

[9]

Helen died on December 28, 2009. An 11-day trial took place some five
    months later in May 2010.

[10]

The
    trial judge found that Gary had not proven the alleged contract with his
    parents and dismissed his claim. On the counterclaim, the trial judge ordered
    both Gary and Louanne to account for their management of the estate property
    and assets since Jacks death pursuant to rule 74.15(1)(h) of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194. The trial judge awarded costs to
    Louanne on a substantial indemnity basis fixed at $275,000 inclusive, payable
    by Gary and not by the estate.

[11]

Gary
    appeals from the trial judgment dismissing his claim and ordering an
    accounting. He also seeks leave to appeal from the costs judgment.

[12]

For
    the reasons that follow, I would allow the appeal, set aside the costs award
    and order a new trial on all issues.

B.

Facts

[13]

The
    trial judges reasons for judgment are not reported. I therefore have
    paraphrased his reasons setting out the facts of this case.

[14]

The
    farm property in issue in the action consists of four parcels of land totalling
    approximately 148 acres: a 49-acre lot with the family farm house and barn; an
    approximately 98-acre lot with a trailer on the property; a one-acre vacant
    lot; and a 0.48-acre lot with a house (collectively, the farm property). The
    first three of these parcels were owned by Jack and Helen as joint tenants,
    while the 0.48-acre lot was solely owned by Jack.

[15]

Gary
    testified in chief that he had the following oral agreement with his parents:

A. My parents and I, we made an agreement at that time that if
    I stayed on the farm and farmed with them, and farming was my main occupation,
    they would give me the farm land and farm assets when they were done with them.

Q. And when did you understand that would be?

A. I understood that the, the farming would be my main
    occupation. I would contribute to the farm, Id be willing to take less wages
    than a person normally would work and that would be re-invested back in the
    farm; and I also understood that I eventually would start a dairy herd. And
    when my parents were  decided to quit farming, the farmland and the farm
    assets would be given to me.

Q. Right. Was there any discussion, at this time, that youd,
    youd buy the assets from them?

A. There is no discussion about the assets, no.

[16]

After
    graduating from high school in 1977, Gary worked on a full-time basis with his
    parents in operating the dairy farm.

[17]

Garys
    work on the farm allowed Jack to spend more time as a cattle buyer, which
    involved a great deal of travelling. Gary and Jack had separate purebred titles
    and records for their herds.

[18]

Jack
    held a milk quota with the Ontario Milk Marketing Board in his name and the
    milk sales income was paid to him. Gary obtained cattle through Jack at less
    than fair market value or as gifts. Over time, Garys herd of cattle was larger
    than Jacks.

[19]

Gary
    lived with his parents in their family home until 1983, when he married his
    wife, Debra (Debbie). Gary and Debbie moved into a bungalow located on
    neighbouring lands. In 1995, Helen transferred these lands and the bungalow to
    Gary and Debbie.

[20]

Gary
    testified that after he started working full-time on the farm in 1977, he
    received only low wages for the first few years. The trial judge found that
    after 1983, Gary received a wage and share of the milk sales.

[21]

Helen
    did the bookwork and banking for the farm until 1998. Debbie assisted Helen on
    the farm accounts, and took a more active role in this regard beginning in 1998
    and 1999.

[22]

Louanne
    worked for several employers off the farm.

[23]

In
    January 2000, Jack and Helen had a three-hour meeting with their bookkeeper and
    tax preparer, David Riley. Mr. Riley had experience with succession planning.
    He discussed with Jack and Helen their plans for the succession of the farm.
    Mr. Riley testified that the Mountains had decided it was time to act to roll
    the farm over to Gary. He discussed these plans with Jack and Helen.

[24]

Mr.
    Riley further testified that since Gary had been managing the farm for a long
    time, Jack and Helen wanted to transfer the farm assets from the two of them to
    Gary. These assets included the land, the milk quota, the equipment, the
    buildings and the cattle. It was Jack and Helens intention that Louanne would
    receive the one-acre lot, their personal investments and their life insurance
    policies.

[25]

Mr.
    Riley prepared notes of his discussion. These notes included only rough asset
    values. He gave these notes to Jack, who was to confirm the values. Gary found
    these notes in Jacks wallet in October 2001 after Jack had been hospitalized.
    There is no evidence that Jack acted on these notes prior to the fall of 2001.

[26]

In
    the spring of 2001, Jack began to feel unwell. He was hospitalized in
    mid-October 2001, suffering from terminal cancer. Around the same time, Louanne
    was also diagnosed with cancer.

[27]

After
    being admitted to the hospital, Jack told Louanne that he wanted to see a
    lawyer. He was visited by a family friend, Don Elliott, who was a retired
    lawyer. Mr. Elliott testified that he spoke with Jack about a power of attorney
    and recommended a lawyer to him. He did not discuss estate planning.

[28]

After
    Jack returned home from the hospital, Mr. Elliott arranged for his lawyer,
    Chris Moon, to attend at the farm to meet with Jack, Gary and Helen. The trial
    judge noted, at para. 30, that they came to the conclusion that something
    should be done to be sure that if something happened to Jack or Helen, Gary and
    Debbie could run the farm. Mr. Elliott concluded that Jack and Helen should
    sign powers of attorney for Gary and Louanne. Mr. Elliott had no recollection
    of discussing a transfer of the land and assets to Gary. At the end of the
    meeting, Mr. Moon said he would prepare the powers of attorney and provide them
    to Mr. Elliott the next day, which he did.

[29]

Mr.
    Elliott brought the powers of attorney for Jack and Helen to sign on November
    10, 2001. At trial, there was a dispute about Helens competence at the time
    she signed the documents. The trial judge found that she was incompetent to
    deal with her financial matters by the early fall of 2001.

[30]

On
    November 12, 2001, Gary spoke with Mr. Riley about a proposed rollover of the
    farm from Jack to him. Gary testified that Mr. Riley told him that he would get
    the farm and Louanne would get the one-acre lot. Gary did not object to that,
    but it was his view that Louanne was not interested in the lot.

[31]

After
    the meeting with Gary, Mr. Riley sent a letter addressed to Jack, dated
    November 13, 2001. The letter says:

This letter summarizes our discussion of the farm rollover from
    you and Helen to Gary. If I understand your desires correctly, the two farms,
    the 46 acre lot with the helper house and the trailer on the 97 acre farm are
    to be rolled over to Gary. The one-acre lot at Conc. 4, WHS Pt Lot 33, is to be
    rolled over to Louanne.

[32]

Mr.
    Riley testified that he was sure of what Jack wanted and he wanted Jack to
    confirm this. He was not sure if he spoke to Jack about the letter. The trial
    judge found that this letter was not evidence of what Jack wanted done.

[33]

Helens
    sister, Catherine Monkman, testified that she visited Jack in the hospital and
    he told her that he needed a lawyer. She told him she had an appointment with
    her lawyer, Farquhar MacDonald, and said Jack could take this appointment. Mr.
    MacDonald agreed to meet with Jack on November 15, 2001. However, Jack was
    re-admitted to the hospital that day and was unable to meet with him.

[34]

Mr.
    MacDonald met with Mr. and Mrs. Monkman and Gary. Louanne was with her father
    at the hospital at the time. Mr. MacDonald testified that they discussed the
    assets owned by the Mountains, the form of ownership of the properties and the
    investments. He testified that he believed Mr. Rileys letter of November 13,
    2001 was available to him at the meeting. He agreed to prepare a memo to Mr.
    Riley and the family following the meeting. He prepared such a memo, dated
    November 27, 2001, the contents of which are described later.

[35]

Gary
    testified that he spoke with his father on November 16, 2001 at the hospital
    and they discussed the November 15th meeting. His evidence was that Jack read
    over Mr. Rileys letter and said that he was happy with the figures and to go
    ahead with the rollover. However, no steps were taken to do so.

[36]

On
    November 18 or 19, 2001, Helen and Jacks minister, Reverend John Lekx, visited
    Jack in the hospital. Reverend Lekx testified that Gary was just coming out of
    the hospital room when he arrived to see Jack. Jack told the Reverend: Yes, I
    just told Gary to take the farm and get a lawyer to have it settled. Reverend
    Lekx said, Youll be happy. He testified that Jack seemed happy and relieved.
    Reverend Lekx also testified that Jack appeared lucid and clear throughout the
    meeting. The trial judge found that this evidence did not assist him because
    Jack did not carry out his intentions.

[37]

Jack
    was transferred to palliative care by November 20, 2001. On November 26, 2001,
    Gary attended at the hospital and asked Jack to sign a document transferring
    his Ontario Milk Marketing Board quota to Gary. No witness was present when
    Jack signed, and he was receiving morphine for his pain at the time. Debbie had
    also signed the transfer document on Jacks behalf. On November 27, 2001, Gary
    took the document to Louanne and explained it to her. Louanne looked at, read
    it, and signed as a witness to both her fathers and Debbies signatures.

[38]

On
    the day Jack signed the milk quota transfer, Gary also had Jack sign a document
    transferring two farm vehicles to Gary and transferring a car to Louanne.
    Louanne signed the document even though she had not seen Jack sign it.

[39]

Jack
    died on November 28, 2001.

[40]

There
    is no dispute that Jacks will leaving his estate to Helen was valid. Nor is
    there any dispute that Jack had not formalized the rollover of the farm to
    Gary, nor had he changed the terms of his will before he died.

[41]

After
    Jacks death, Gary and Helen met with Mr. MacDonald to notarize the will on
    December 6 or 7, 2001. Gary and Debbie continued to operate the dairy farm.
    Gary transferred the cattle into his name from Jacks. Gary also transferred to
    himself a $78,000 credit at an account with a feed store that was in Jacks
    name simply by phoning the feed store (referred to by the trial judge as the
    Wallenstein Account). On December 1, 2001, Gary transferred $150,000 from the
    farm account at the bank to his own account. He simply went to the bank and
    told them to transfer it and they did so.

[42]

Helen
    moved out of the family farm house sometime after Jacks death. Initially, Gary
    rented the family farm house to a cousin, who paid $740 a month in rent. Gary
    put the rent monies into his farm account. The tenant moved out of the farm
    home in June 2005, after which Gary and Debbie moved in.

[43]

On
    December 22, 2004, Gary commenced an action seeking a declaration that he is
    beneficially entitled to the farm property and farm business. He claimed a
    vesting order with respect to the individual parcels comprising the farm
    property and farm business.

[44]

In
    May 2005, Gary sold the cattle and the milk quota without giving notice of this
    sale to Louanne. He received the proceeds of the sale, part of which were put
    into investment accounts and part of which were used to pay down farm debt. He
    and Debbie incurred capital gains taxes on the proceeds and reduced this
    liability by using their one-time capital gains exemption.

[45]

Gary
    and Debbie have continued to live on and operate the farm. Gary has been
    running a cash crop and custom farm work business.

[46]

By
    order dated February 1, 2006, Herold J. appointed TD Canada Trust Company (now
    Canada Trust Company) as Estate Trustee during Litigation for Helen Mountain
    and for the Estate of Jack Mountain and as guardian of the property of Helen
    Mountain. He ordered Gary to provide an accounting of the assets relating to
    Helen. In addition, Herold J. ordered the parties to attend a mediation of the
    issues in the action.

[47]

Helen
    died on December 28, 2009. It is uncontested that her will was valid.

C.

The Trial Judges Analysis

[48]

The
    trial judge referred to ss. 4 and 9 of the
Statute of Frauds
, R.S.O.
    1990, c. S.19 and to s. 13 of the
Evidence Act
, R.S.O. 1990, c. E.23.
    These provisions state respectively:


Statute of Frauds

4. No action shall be brought to charge any executor or
    administrator upon any special promise to answer damages out of the executors
    or administrators own estate, or to charge any person upon any special promise
    to answer for the debt, default or miscarriage of any other person, or to
    charge any person upon any contract or sale of lands, tenements or
    hereditaments, or any interest in or concerning them, unless the agreement upon
    which the action is brought, or some memorandum or note thereof is in writing
    and signed by the party to be charged therewith or some person thereunto
    lawfully authorized by the party.

9. Subject to section 10, all declarations or creations of
    trusts or confidences of any lands, tenements or hereditaments shall be
    manifested and proved by a writing signed by the party who is by law enabled to
    declare such trust, or by his or her last will in writing, or else they are
    void and of no effect.

Evidence Act

13. 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.

[49]

The
    trial judge also referred to
Baker v. Iverson Estate
, [1956] O.J. No.
    2 (H.C.J.), where Spence J. held that the plaintiff in that case had to meet
    three main difficulties in seeking specific performance of an oral contract
    with a deceased:

1. The plaintiff must adduce evidence either of her own or that
    of others which would set the contract with sufficient particularity to permit
    a decree for specific performance.

2. The plaintiff must adduce evidence that would meet the
    requirement of corroboration required by [what is now s. 13 of the
Ontario
    Evidence Act
].

3. The plaintiff must adduce evidence of acts of part
    performance on her part as will enable the court to grant a decree of specific
    performance and result in the contract being held enforceable notwithstanding
    the provisions of s. 4 of the
Statute of Frauds
.

[50]

The
    trial judge concluded, at para. 9, that Gary had not proved the alleged
    contract. He gave several reasons for finding that Garys evidence regarding
    the oral contract was not credible. The trial judge remarked that Garys
    failure to transfer anything to Louanne after Helens death despite Garys
    evidence that Louanne was to get the non-farm assets confirms the
    unreliability of his evidence (at para. 103). In my view, this is questionable
    confirmation considering that Canada Trust was acting as estate trustee during
    litigation pursuant to a court order made several years before Helens death.

[51]

The
    trial judge went on to conclude that Garys evidence did not support the
    application of the doctrine of part performance. The trial judge said the
    following about this doctrine, at para. 106:

An oral agreement respecting land may be enforced by applying
    the equitable doctrine of part performance. Equity will intervene where it
    would be unconscionable for a party to set up the
Statute of Frauds
and retain benefits received under an unenforceable contract. The acts of part
    performance, however, must be clearly and unequivocally referable to the
    contract which is alleged.

[52]

According
    to the trial judge, Gary was relying on acts by Jack as being acts of part
    performance. The trial judge said that this approach overlooks two things: 1)
    the acts of part performance are to be those of Gary, not Jack; and 2) those
    acts must be consistent only with the alleged contract (at para. 107). The
    trial judge found: The acts of his [
i.e.
, Garys] are as consistent
    with a son being paid reasonably for his work as they are for a contract for
    the transfer of the farm. He went on to say, at para. 108:

If I am wrong in that interpretation of the law, the acts of
    part performance by Jack relied upon by Gary must still be considered.

[53]

The
    trial judge concluded, at para. 141, that Gary had failed to prove his case:

There is no signed written agreement to comply with the
Statute
    of Frauds
. There are no acts of Gary that are only consistent with part
    performance of the alleged contract. Given his apparent acceptance of the
    disposition of the one acre farm to Louanne, the terms of the alleged contract
    are not sufficient for an order for specific performance. The plaintiff himself
    is not credible. The alleged acts of Jack upon which he relies for part
    performance are not proven.

[54]

After
    dismissing Garys claim for part performance, the trial judge went on to reject
    Garys alternative claim based on the doctrine of resulting trust. He also
    rejected Garys reliance on the principle of
donatio mortis causa
to
    support the gift of the vehicles and the milk quota to him. He did not deal
    with Garys claim seeking the imposition of a constructive trust presumably because
    Garys counsel did not address this issue in argument.

[55]

Regarding
    Louannes counterclaim for an accounting, the trial judge concluded, at para.
    145, that Louannes evidence was insufficient to quantify that claim because
    of both Garys failure to account but also Louannes failure to provide the
    necessary evidence or to demand it from Gary. The trial judge said he was
    unable to quantify the value of the benefits that Gary had received from using
    his parents assets.

[56]

Although
    the trial judge found the evidence was insufficient to adjudicate Louannes
    claim, he observed, at para. 161, that the provisions in the
Rules of Civil
    Procedure
and the
Estates Act
, R.S.O. 1990, c. E.21, grant the
    court a broad discretion to order a trustee to account for his or her
    management of estate property and assets. He saw no reason why the principles
    in Rule 74  permitting the court to order the trustee to pass accounts  and
    in s. 49 of the
Estates Act
 permitting the court to inquire into the
    state of the accounts  should not apply to this case. He therefore ordered
    Gary to provide an accounting of his use of the assets of both Jack and Helen
    since the death of Jack pursuant to the provisions of Rule 74 of the
Rules
    of Civil Procedure
. In his final order, the trial judge also required
    Louanne to provide an accounting pursuant to Rule 74.

D.

Issues on Appeal

[57]

The
    appellant raises the following three issues:

(i) Did the trial judge err in finding that there was no oral
    agreement sufficient to support the appellants claim to title to the farm land
    and farm business and vesting orders with respect to them?

(ii) Did the trial judge err in ordering an accounting when the
    appellant had provided an accounting, which was reviewed by the respondents?

(iii) Did the trial judge err in awarding the respondent
    substantial indemnity costs including the costs claimed with respect to the
    witness Clarke McLeod?

[58]

My
    consideration of the first issue makes it unnecessary to discuss the remaining
    issues in detail and results in my conclusion that a new trial is required on
    all issues.

[59]

In
    my view, the trial judge erred in three respects in considering Garys claim
    for part performance of an oral agreement:

(i) he erred in concluding that because there were no signed
    documents, there was no oral agreement;

(ii) he erred in his application of the doctrine of part
    performance; and

(iii) he made various findings of fact that disclose palpable
    and overriding error.

[60]

As
    a result of these errors of law and fact, a new trial is required so that the
    various factual issues raised by the appellants claim may be resolved in
    accordance with the governing legal principles. The trial judges order for an
    accounting arising from Louannes counterclaim will also need to be reconsidered
    at a new trial.

[61]

In
H.L. v. Canada (Attorney General)
, 2005 SCC 25,
[2005] 1 S.C.R.
    401
,
at para. 56, Fish J.,
    for the majority, described the need for an appellate court to explain why
    findings of fact are unreasonable:

[I]t seems to me that unreasonable findings of fact - relating
    to credibility, to primary or inferred evidential facts, or to facts in issue
    - are reviewable on appeal because they are palpably or clearly wrong. The
    same is true of findings that are unsupported by the evidence.
I need
    hardly repeat, however, that appellate intervention will only be warranted
    where the court can explain

why

or

in what
    respect

the impugned finding is unreasonable or unsupported by the
    evidence.
[Underlining in original. Emphasis added.]

[62]

I wish to make it clear that my purpose in discussing why the
    trial judges findings of fact are unreasonable is only to explain why
    appellate intervention is warranted. It is not to bind the hands of the future
    trial judge in reviewing the evidence at a new trial.

[63]

I also note that the trial judges factual findings discussed
    below are unreasonable even in light of his adverse credibility findings
    against Gary. These findings reflect processing errors in respect of evidence
    that was independent of Garys testimony.

E.

Analysis

(i)
    Did the trial judge err in finding there was no evidence of an oral agreement
    as alleged by the appellant?

(a)

The trial judges errors concerning the existence of the alleged oral
    agreement

[64]

I
    would set aside the trial judges determination that there was no oral
    agreement between Gary and his parents that he would get the farm property and
    assets after they were done with them. The trial judges analysis of this issue
    reflects legal error. Furthermore, his reasons reveal various errors in the
    fact-finding process that produced unreasonable findings of fact amounting to
    palpable and overriding error. These errors include a failure to consider
    relevant evidence, a misapprehension of relevant evidence, and findings without
    basis in the evidence: see
Peart v. Peel Regional Police Services Board
(2006), 217 O.A.C. 269, at para. 159; leave to appeal to S.C.C. refused, [2007]
    S.C.C.A. No. 10.

[65]

In
    concluding there was no oral contract, the trial judge put significant weight
    on the lack of signed documents that would support Garys allegation of an oral
    agreement. He stated, at para. 38:

[N]either of his parents signed any documents that would support
    his allegation of a contract. Despite having two legally trained individuals in
    their home [Mr. Elliott and Mr. Moon], neither [Jack nor Helen] took any steps
    other than to sign powers of attorney. This is strong evidence against Garys
    case that there was a contract to transfer the farm and its assets to him.

[66]

Fundamentally,
    the issue whether a valid and binding oral agreement exists does not depend on
    the existence of a formal written document between the contracting parties: see
Bawitko Investments Ltd. v. Kernels Popcorn Ltd.
(1991), 79 D.L.R.
    (4th) 97 (Ont. C.A.), at pp. 103-104.
The
    essential terms of an oral contract for the purchase and sale of real property
    are the parties, property and price: see
McKenzie v. Walsh
(1920), 61 S.C.R. 312. If these terms have been
    agreed on, then a contract may be found without the need for evidence of a
    written agreement. The trial judge misconceived the applicable legal test for
    proving an oral agreement by considering the lack of written documentation as
    being strong evidence against Garys claim.

[67]

In
    addition, the trial judges reasons for concluding that the oral agreement was
    not proven reveal errors in the fact-finding process that produced significant
    unreasonable findings of fact.

[68]

For
    example, the trial judge emphasized that the planned rollover of the farm
    property to Gary, as had been documented by Mr. Riley, indicated that Louanne
    would get a one-acre parcel of the farm property. The trial judge found that
    the proposed treatment of this one-acre lot was inconsistent with the
    agreement that must be proven by Gary (at para. 64). He inferred, at para. 44,
    that [i]f the agreement between [Gary] and his parents was that he would
    obtain the entire farm, one would think that he would object to such a plan.

[69]

However,
    the one-acre parcel of the 148-acre farm property that was proposed to go to
    Louanne in 2001 was a vacant lot. The trial judge failed to appreciate that there
    was no evidence suggesting that this small vacant lot was somehow integral to
    the operation of the family farm, or that there would be any reason why Gary
    would object to his sister receiving this property. Garys lack of objection to
    his parents wishes in 2001 that this lot should go to Louanne had no bearing
    on the existence of the prior oral agreement, nor was it a reason to find, as
    the trial judge did, that the terms of the alleged oral agreement were not
    sufficient for an order for specific performance.

[70]

A
    second example of error in the trial judges fact-finding process involves his
    interpretation of the November 27, 2001 memo that Mr. MacDonald (the lawyer
    whom the Monkmans had recommended to Jack) sent to Mr. Riley. Mr. MacDonald
    prepared the memo after meeting with Gary and the Monkmans on November 15, 2001.
    The trial judge referred to the following passage from Mr. MacDonalds memo:

If Jack wishes to establish some measure of equality between
    the amount that is given to Louanne and the amount that is given to Gary
    eventually, it will be necessary for him to either make a cash transfer to her
    immediately or alternatively, to give all or part of a promissory note given to
    him by Gary on the farm purchase to Louanne. We could provide some kind of
    provision in the Will whereby the note is not payable or is not transferred to
    Louanne until after the death of Helen. By delaying the payment of the note it
    might be possible for Gary to pay off Louanne with some of the liquid assets
    which are available on the death of Helen.

[71]

The
    trial judge found that this memo confirms that Jack may have wanted to
    transfer assets with some sort of payment to Louanne. According to the trial
    judge, at para. 64: This is inconsistent with the agreement that must be
    proven by Gary. The trial judge further said, at para. 65, that if the entire
    farm was to be transferred to Gary by way of the alleged contract, there would
    be no need for Gary to have a debt as suggested by Mr. MacDonalds memo. He
    went on to make the following observation:

In cross-examination, Gary agreed that there was a discussion
    about equalization but only if necessary. He was clear that he would not give
    a mortgage and would not take less in assets. It was his view that he was not
    required to equalize. He would agree to a promissory note only if it was forgiven
    on his mothers death.
This is in contrast to what Jack was apparently
    telling others.
[Emphasis added.]

[72]

The
    trial judges findings are based on a misapprehension of the evidence because,
    as he had noted, at para. 62, Mr. MacDonald testified that he did not speak
    with anyone about the above-cited paragraph prior to releasing the memo. As the
    trial judge also had noted, Jack and Helen were not present at the November 15,
    2001 meeting with Mr. MacDonald. In addition, the trial judge failed to avert
    to Mr. MacDonalds testimony that he did not ever meet Jack, who passed away
    before he had a chance to speak with him. The trial judges finding that Mr.
    MacDonalds memo was evidence of Jacks intentions and was inconsistent with
    the alleged oral agreement thus reveals palpable and overriding error. There
    was no evidence to suggest that Jack had had any input into the proposal that
    Mr. MacDonald raised in his memo.

[73]

The
    trial judge did not refer to any evidence in support of his finding that Jack
    was telling others that Gary was required to give a mortgage or to otherwise
    equalize his share of the assets with Louanne such as by way of a promissory
    note. Rather, he heard evidence to the contrary. As the trial judge noted, at
    para. 21, Mr. Riley testified that Jack and Helen wanted to be as fair as
    possible, but not necessarily equal. Mr. Riley had also testified that he never
    discussed with Jack or Helen that Gary would purchase the farm or pay rent for
    the farm or that Gary would give a promissory note for the farm, apart from a
    cattle promissory note that was set up.

[74]

Another
    finding that reveals palpable and overriding error is the trial judges factual
    inference that Jack intentionally did not transfer the property to Gary before
    his death. As the trial judge put it, at para. 68:

While I am doubtful of Jacks competence, if he was [competent]
    as Gary submits, Jack had thoughts about how to arrange his affairs, knew that
    they had not been put in place and did not put them in place. Since he did not
    do so, I can safely infer that that was intentional.

[75]

The
    trial judge did not explain why this inference was safely drawn given the following
    evidence indicating that it was the swift deterioration in Jacks health that
    prevented him from completing the farm transfer:

·

Several witnesses, including Louanne, testified that while Jack
    was in the hospital, he indicated that he wanted to meet with a lawyer.

·

The Monkmans offered Jack an appointment with their lawyer, Mr.
    MacDonald, for November 15, 2001. Mr. MacDonald would have met Jack were it not
    for Jacks unanticipated hospitalization that same day.

·

Reverend Lekx testified that on November 18 or 19, 2001, Jack
    told him that he had just told Gary to take the farm and get a lawyer to have
    it settled.

·

Mr. Riley testified that Jack passed away before they were able
    to finalize the rollover of the farm to Gary, so he followed the will and
    transferred Jacks half to Helen with the intention that it would then be
    rolled over to Gary.

·

Mr. MacDonald testified that when he prepared his memo of
    November 27, 2001, he was expecting there to be an
inter vivos
transfer of the farm property, milk quota and vehicles.

[76]

The
    trial judges inference that Jack did not intend to transfer the farm to Gary
    before his death also inexplicably fails to give any consideration to the
    uncontradicted evidence of Mr. Riley, which he had set out at paras. 20-22 of
    his reasons. As the trial judge noted, at para. 20, Mr. Riley testified that in
    2000, Jack and Helen decided that it was time to act to roll the farm over to
    Gary. Mr. Riley discussed these plans with both Helen and Jack. Mr. Riley
    testified that:

There were particular assets that were going to go to Gary and
    some to Louanne. As Gary had been managing the farm for a long time, Jack and
    Helen wanted to transfer the assets from the two of them to Gary. This included
    the land, the quota, the equipment, the buildings and the cattle.

In cross-examination, Mr. Riley repeated that the
    plan was for him [Gary] to manage the farm and have the farm.

[77]

The
    trial judge did not explain why he rejected Mr. Rileys evidence as providing
    corroboration for Garys oral contract claim. He simply proceeded on the
    assumption that if the oral agreement had been entered, then Jack would have
    completed the transfer of the farm property and business to Gary before he
    died.

(b)

The trial judges errors concerning the doctrine of part performance

[78]

The
    trial judge erred in his analysis and application of the doctrine of part
    performance. He also misapprehended or disregarded relevant evidence, resulting
    in palpable and overriding error. The trial judges application of the legal
    test for part performance reveals a failure to consider and appreciate the
    context of this case. This was a family farming operation. Yet the trial judge
    treated Gary as though he were a farm hand  and an overpaid one at that  when
    in reality, Gary and Jack acted as partners in a family business.

[79]

In
    setting forth the governing legal principles, the trial judge held, at para.
    107, that the acts of part performance that Gary needed to prove were those of
    Garys, not Jacks. He also held that those acts must be consistent with only
    the alleged contract. The trial judges statement of the law is wrong in two
    respects.

[80]

In
Erie Sand and Gravel Ltd. v. Seres Farms Ltd.
, 2009 ONCA 709, 97 O.R.
    (3d) 241 (C.A.), Gillese J.A. clarified the legal principles that apply when
    determining whether there is an oral agreement respecting land, and if so,
    whether there are sufficient acts of part performance to take the oral
    agreement outside s. 4 of the
Statute of Frauds
. As explained in
Erie
    Sand
, at para. 49, the doctrine of part performance is a creation of
    equity. The doctrine was created:

to prevent the
Statute of Frauds
from being used as a
    variant of the unconscionable dealing which it was designed to remedy: see
Hill
    v. Nova Scotia (Attorney General)
, [1997] 1 S.C.R. 69, at para. 10. The
    requirements in s. 4 of the
Statute of Frauds
must give way in the
    face of part performance because the acts of part performance fulfill the very
    purpose of the written document - that is, they diminish the opportunity for fraudulent
    dealings with land based on perjured evidence.

[81]

Gillese
    J.A. made it clear, at para. 75, that the doctrine of part performance is not
    limited to a consideration of the acts of the plaintiff:

In sum, it appears to me that given the decision of the Supreme
    Court in
Hill
, it is now settled law in Canada that the acts of both
    parties to an alleged oral agreement may be considered when a court is called
    on to determine if sufficient acts of part performance take an alleged
    agreement outside the operation of the
Statute of Frauds
.

[82]

Gillese
    J.A. also made it clear that the acts of part performance need not be
    referable only to the contract alleged. Rather, the test as established by
    the majority judgment of Cartwright J. in
Deglman v. Brunet Estate
,
    [1954] S.C.R. 725, at p. 733, is that it is sufficient if the acts are
    unequivocally referable in their own nature to some dealing with the land.

[83]

The
    trial judge erred in law in holding that the only relevant acts of part
    performance are those of Gary. He further erred in stating that Garys acts
    must be consistent only with the alleged contract.

[84]

The
    trial judge noted, at para. 108, that if he was wrong in his view on whose acts
    of part performance may be considered, he would consider the acts of part
    performance by Jack that Gary was relying on. He went on to consider the
    alleged acts of part performance under these headings: income; milk quota;
    motor vehicles; cattle; Holstein Canada; Wallenstein account; bank accounts;
    and transfer of home to Gary and Debbie (at paras. 109-38).

[85]

In
    considering each of these topics, however, the trial judge did not depart from
    his erroneous view of the law that the acts of part performance must be
    consistent only with the alleged contract. Moreover, he also made a number of
    fatal errors in his analysis of the evidence concerning the alleged acts of
    part performance. These errors arose from the trial judges failure to
    appreciate the contextual circumstances in which the events material to this
    litigation occurred.

[86]

In
Erie Sand
, Gillese J.A. explained, at para. 94, that the proper
    approach to determining whether acts of part performance are referable to some
    dealing with the land is to begin by determining the context, or in other
    words, the relevant circumstances. The court is to [t]hen consider the acts of
    part performance having regard to the way in which reasonable people carry on
    their affairs.

[87]

The
    need for a contextual approach follows from the purpose of the doctrine of part
    performance. At para. 79 of
Erie Sand
, Gillese J.A. discussed the two
    underlying aspects of the doctrine:

The first aspect is detrimental reliance which, as has been
    noted, requires a party to prove its acts of part performance. Without
    detrimental reliance there can be no inequity in relying on the
Statute of
    Frauds
, thus, it is the first hurdle to be met. The second aspect of the
    doctrine, however, relates to Equitys requirement that the acts of part
    performance sufficiently indicate the existence of the alleged contract such
    that the party alleging the agreement is permitted to adduce evidence of the
    oral agreement. The former is a matter of substantive law based on the
    rationale for the doctrine of part performance, whereas the latter is primarily
    evidentiary in nature.

[88]

Requiring
    the plaintiff to rely only on his own acts of part performance conflates these
    two distinct aspects, thereby frustrating the equitable principle animating the
    doctrine:
Erie Sands
, at para. 79. In the same way, by applying the
    overly stringent requirement that Garys acts of part performance be referable
    only to the alleged contract, the trial judge erred in law by holding Gary to a
    strict evidentiary test at the expense of the equitable rationale for the
    doctrine of part performance.

[89]

In
    assessing the evidence before him, the trial judge failed to apply the common sense
    approach described in
Erie Sands.
Again, this was a family farming
    operation. The trial judge did not take into account that Gary had devoted his
    working life to this family enterprise and that he did so not as an employee
    but as a partner with his father. This course of conduct was capable of constituting
    detrimental reliance on Garys part. Yet the trial judge overlooked this
    reliance and engaged in an evidentiary analysis that was inapposite to the
    circumstances at hand.

[90]

The effect of the trial judges misstatement of the law of part
    performance and his misconception of the relevant circumstances is revealed by
    his conclusion, at para. 107, that Garys acts are as consistent with a son
    being paid reasonably for his work as they are for a contract for the transfer
    of the farm. The trial judge found that Gary received free accommodation, free
    use of the farm vehicles and free or reduced-price cattle. He also found that
    Gary received an income that increased over time, while Jack paid for the
    farming expenses related to Garys cattle. The trial judge further found, at
    para. 116: Given his annual income, cattle benefits, free house and the
    savings that Gary had been able to amass, it is clear that he was not underpaid
    for the work that he did on the farm.

[91]

In
    focusing on whether Gary had been underpaid for his full-time work on the farm
    for the 24 years that he worked with Jack, the trial judge lost sight of the
    elementary fact that Jack and Gary, father and son, were operating the farm
    together as more or less equals.

[92]

There
    can be no question on this record that Jack and Gary were engaged in the
    farming operation together and that it was not on an employer-employee basis,
    nor was it an arms-length relationship. Gary was not treated by his father as a
    mere farm hand, nor did he conduct himself as such. Gary received cattle from
    his father at no expense or at less than market value. He had access to the
    feed account, authority to order and pay for commodities, and had authority
    over the farming financial arrangements. Their relationship was not formalized,
    but in the circumstances, this is not surprising.

[93]

There
    was evidence indicating that third parties regarded Jack and Gary as equal
    partners in the farming business. For example, as pointed out by the trial
    judge, at para. 132, after Jacks death, Gary transferred to himself a $78,000
    credit in the Wallenstein account that was in Jacks name simply by phoning the
    feed store. And as the trial judge noted, at para. 150, Gary transferred
    $150,000 from the farm account in his fathers name to his own account simply
    by asking the bank to do so without having to use the will or the power of
    attorney.

[94]

The
    trial judge found, at para. 132, that the transfer of the Wallenstein account
    was not an act of Jacks to support the allegation that Jack intended to
    transfer the farm to Gary. This finding overlooks the potential significance of
    this evidence. Obviously, this evidence could not be evidence of part
    performance by Jack because the transfer of the feed account occurred after
    Jacks death. However, the evidence that the feed store and the bank
    transferred accounts containing significant farm assets from Jacks name to
    Garys without requiring proof of Garys entitlement to them was capable of
    supporting a finding that Jack and Gary were viewed as equals in their
    operation of the farm. This evidence was part of the relevant circumstances
    against which the acts of part performance should have been considered by the
    trial judge.

[95]

The
    trial judges failure to appreciate the relevant circumstances  particularly
    the nature of the relationship between Jack and Gary in their operation of the
    farm  led him to disregard evidence that was capable of showing part
    performance.

[96]

For
    example, the trial judge failed to give any consideration to the acts of Gary
    that contributed to the overall success of the farm operation to the benefit of
    Jack and Helen. Mr. Elliott testified that Jack was more interested in buying
    and selling cattle than farming. Garys work managing the farm allowed Jack to
    pursue his career as a cattle buyer, which involved significant travel away
    from the farm. As the trial judge noted, Gary acquired a sizable dairy herd of
    his own from Jack. However, the trial judge did not refer to evidence that was
    capable of showing detrimental reliance on Garys part. For example, he did not
    refer to the evidence that, at the time of Jacks death, Gary had 65 per cent
    of the dairy herd, but received only 15 per cent of the proceeds from the sale
    of the milk to the Milk Marketing Board. The rest of the proceeds went to his
    parents.

[97]

In
    addition, Gary had pointed to the transfer of the milk quota from Jack to
    himself as being evidence of part performance of the oral agreement. The milk
    quota was an asset worth almost $1 million. Jack signed the document
    transferring the milk quota on November 26, 2001 while he was in the hospital and
    receiving morphine for his pain. Only Gary was present, although Louanne signed
    the document as Jacks witness the next day.

[98]

The
    trial judge found, at para. 117, that the suspicions are so high that I cannot
    rely on Garys evidence to support the proposition that Jack intended to
    transfer this valuable asset to him. However, it is not clear to what extent the
    trial judges suspicions are attributable to his failure to appreciate the
    relevant circumstances of how father and son had operated the dairy farm
    together for many years. The evidence that Louanne was prepared to sign the
    document as a witness was at least capable of corroborating the proposition
    that the transfer was in accordance with their fathers wishes.

[99]

Another
    example of how the trial judge misconceived the relevant circumstances, and in
    so doing, disregarded evidence that was capable of showing part performance, is
    in his consideration of the transfer of the bungalow to Gary and Debbie. At
    trial, it was undisputed that in 1995 Helen signed a deed of land transferring
    a parcel of the family farm with a bungalow located on it to Gary and Debbie
    for natural love and affection.

[100]

Rather than asking
    whether the evidence of this transfer supported Garys allegation of part
    performance or corroborated his evidence concerning the oral agreement with his
    parents, the trial judge instead emphasized that Gary and Debbie paid for their
    own renovations to the bungalow. He observed, at para. 138: Much like his
    forefathers, there was obviously a line at which Gary would have to pay for the
    benefits he received.

[101]

By wrongly
    focussing on who was to pay for the renovations to the bungalow, the trial
    judge ignored that the gratuitous transfer of this piece of the farm lands to
    Gary and his wife was independent, documentary evidence that was potentially capable
    of corroborating Garys evidence of the oral agreement and serving as evidence
    of part performance by his parents.

[102]

Moreover, the
    cost of the improvements to the bungalow that Gary and Debbie incurred could be
    considered as evidence of detrimental reliance rather than, as the trial judge
    viewed it, indirect proof that Gary was expected to pay for the farm. At paras.
    135-36 of his reasons, the trial judge discussed Debbies evidence that in 1993
    to 1994, she and Gary were looking to buy another house because they needed
    another bedroom. Helen told them that she did not want them to move from the
    bungalow because the farm house would be theirs someday. Gary and Debbie paid
    for renovations to the bungalow at a cost that was more than they had
    planned. Helen advised them not to spend too much on the improvements because
    they would eventually get the farm house. However, Gary and Debbie did not know
    when that would be and "that was the problem.

[103]

The trial judge
    found that the uncertainty over when Gary and Debbie were to take the farm was
    significant evidence of the lack of any agreement between Gary and his parents
    (at para.137). He ignored that the evidence concerning Gary and Debbies
    conduct in agreeing to stay in the bungalow and incur renovation costs in
    response to Helens statements was capable of constituting evidence of an act
    of detrimental reliance that was unequivocally referable to some dealing in
    the land and inconsistent with the ordinary relationship of employee or
    tenant: see
Brownscombe v. Public Trustee of Alberta
, [1969] S.C.R.
    658; see also
Thompson v. Guaranty Trust Co.,
[1974] S.C.R. 1023.

[104]

The trial
    judges conclusion that there are no acts of Gary that are only consistent with
    part performance of the alleged contract reflects a wrong approach in law. His
    reasons also reveal various errors in the fact-finding process and a failure to
    appreciate the relevant context.

[105]

Finally, it is not clear whether the trial judge would have made
    adverse findings in respect of Garys credibility had he applied the correct
    legal principles and had he properly appreciated the context of the working
    relationship between Gary and Jack in operating the farm.

[106]

In addition, I note that the trial judge confirmed his finding
    that Garys evidence is unreliable for the following reason, at para. 103:

Although Garys evidence was that Louanne was to get the
    non-farm assets, he has failed to transfer anything to her since the death of
    Helen. This simple failure to act according to his own evidence confirms the
    unreliability of his evidence.

[107]

The trial
    judges confirmatory reason for finding Garys evidence unreliable fails to
    take into account the context of this litigation. Helen died five months before
    the trial. Garys failure to transfer assets from his mothers estate to
    Louanne ought to have been considered in light of the fact that Canada Trust
    had been appointed in 2006 to act as estate trustee during litigation for
    Jacks estate and for Helen.

[108]

For these
    reasons, in my view, the trial judges credibility finding in respect of Gary
    is flawed and unreliable.

F.

COnclusion and Disposition

[109]

The trial judge applied
    incorrect legal principles to the evidence and made numerous unreasonable
    findings of fact. These cumulative errors rise to the level of a substantial
    wrong.
[2]


[110]

While the
    appellant asks for judgment in his favour, in my view, this court is not in a
    position to decide the factual issues based only on the transcript. This task
    would be fraught with difficulty considering that the trial judge found not
    only that Garys evidence was unreliable, but he also had concerns about some
    of Louannes evidence and the credibility of some of her witnesses (at para.
    104). I would therefore set aside the trial judges order dismissing the
    appellants claim and requiring an accounting and would order a new trial on
    all issues.

[111]

The appellant is
    entitled to his costs of the appeal, fixed at $40,000 inclusive of
    disbursements and applicable taxes payable by Louanne: see
McDougald Estate
    v. Gooderham
(2005), 255 D.L.R. (4th) 435 (Ont. C.A.), at para. 80.

[112]

I would set
    aside the trial judges costs award and order that the costs of the first trial
    be determined by the judge conducting the new trial.

[113]

I must stress
    that a new trial is in neither sides interest. This case cries out for a
    mediated, consensual resolution. This is a rare circumstance where in the
    interests of justice, I would direct that mediation be conducted prior to any
    new trial. The mediation may be arranged through the office of the Regional
    Senior Justice for Central West.

Released:  WKW November 22, 2012

W.K. Winkler CJO

I agree Robert P.
    Armstrong J.A.

I agree David
Watt J.A.





[1]
The prayer for relief in the Statement of Claim refers to a schedule that more
    particularly describes the farm property and farm business. The schedule was
    not included in the appellants appeal book.



[2]
Section 134(6) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, stipulates
    that an appeal court shall not direct a new trial unless some substantial
    wrong or miscarriage of justice has occurred.


