



COURT OF APPEAL FOR ONTARIO

CITATION: Seguin v. Pearson, 2018 ONCA 355

DATE: 20180410

DOCKET: C63029

Strathy C.J.O., Roberts and Paciocco JJ.A.

BETWEEN

Carol-Anne Seguin (now Carol-Anne Porter)
Mary Elizabeth Paterson and Florence-Margaret Gordon

Plaintiffs (
Appellant
)

and

Lori Dianne Pearson

Defendant (Respondent)

Michelle L. Kropp, for the appellant

Lionel J. Tupman, Amanda Bettencourt and John E.S.
    Poyser, for the respondent

Heard: March 28, 2018

On appeal from the judgment of Justice Hugh K. OConnell
    of the Superior Court of Justice, dated February 29, 2016 (with additional
    reasons dated September 9, 2016).

REASONS FOR DECISION

[1]

The appellant appeals from the dismissal of her action to invalidate
    her fathers two most recent wills, under which the respondent is the principal
    beneficiary, and to set aside an
inter vivos
transfer of his house
    into joint tenancy with the respondent.

[2]

At the conclusion of the appellants submissions, we advised the parties
    that the appeal was dismissed with reasons to follow. These are those reasons.

[3]

The appellant and her sisters are the children of Robert Geddes Paterson,
    who passed away on December 23, 2011. Mr. Paterson had left his wife and
    daughters in 1981. He was estranged from his family until their reconciliation
    in 2002.

[4]

Mr. Paterson met the respondent in 1994. They lived together in a common
    law relationship from 1995 until 2002, when the respondent left Mr. Paterson to
    pursue a new relationship. While separated, Mr. Paterson and the respondent kept
    in contact. They eventually resumed their relationship in 2006. The respondent
    was Mr. Patersons caregiver until his death, and Mr. Paterson also recognized
    her as his common law spouse.

[5]

This case turned on the validity of Mr. Patersons most recent will,
    dated March 11, 2011, under which the respondent was the residual beneficiary
    of all of his property after specific bequests to his three daughters.

[6]

The trial judge rejected the appellants contention that the disposition
    to the respondent was the product of undue influence. He found, on the basis of
    all of the evidence, that the appellant had failed to prove that the
    respondent exerted dominance over Mr. Patersons will.

[7]

The main thrust of the appellants appeal is that the trial judge erred
    in finding that the respondent had not exercised undue influence over Mr.
    Paterson.

[8]

Specifically, the appellant submits that the relationship between Mr.
    Paterson and the respondent gave rise to a presumption of undue influence,
    which the respondent failed to rebut. In connection with this ground of appeal,
    the appellant argues that the trial judge failed to consider some evidence and
    misapprehended other relevant evidence.

[9]

We do not accept these submissions for the following reasons.

[10]

First,
    the appellant mischaracterizes the test for undue influence in the context of
    testamentary gifts. The rebuttable presumption of undue influence arises only
    in the context of
inter vivos
transactions that take place during the
    grantors lifetime. It arises from particular relationships when the validity
    of
inter vivos
dispositions or transactions is in issue; once the
    presumption is established, the onus shifts to the transferee to rebut the
    presumption:
Banton v. Banton
(1998), 164 D.L.R. (4th) 176 (Ont. Ct.
    (Gen. Div.)), at p. 209.

[11]

In
    the case of wills, it is testamentary undue influence, amounting to outright
    and overpowering coercion of the testator, which must be considered. The party
    attacking the will bears the onus of proving undue influence on a balance of
    probabilities:
Vout v. Hay
, [1995] 2 S.C.R. 876, at p. 887; see also
Neuberger
    v. York
,
2016 ONCA 191, 129 O.R. (3d) 721, at paras. 77-78
.

[12]

We
    agree that the trial judge erred in his articulation of the test for undue
    influence applicable to testamentary gifts. When determining the validity of
    Mr. Patersons March 11, 2011 will, the trial judge appears to have erroneously
    conflated the test for undue influence that applies to
inter vivos
transfers with the relevant test in relation to testamentary gifts.

[13]

In
    our view, this error did not affect the reasonableness of his conclusions that
    the respondent exercised no undue influence over Mr. Paterson, and that Mr.
    Paterson independently decided to make the impugned wills and the transfer of
    property in favour of the respondent.

[14]

The
    trial judges finding that there was no undue influence using the
inter
    vivos
standard would necessarily be the same had the trial judge applied
    the correct standard applicable to testamentary dispositions.

[15]

Under
    either test, the trial judge was required to examine all of the relevant
    surrounding circumstances. As a result, the trial judges decision turned on
    his findings of fact which were firmly rooted in the evidence before him. This
    included the medical and lay evidence of Mr. Patersons state of mind and
    overall health; the nature and length of his relationships with the respondent
    and his children; and his instructions to his solicitors, which indicated that
    he had thought deeply and thoroughly about the disposition of his property.

[16]

With
    respect to the solicitors instructions, it was particularly significant to the
    trial judge that Mr. Patersons wills and transfer were not the result of rash
    or emotional actions but followed several months of Mr. Patersons deliberate
    reflection, coupled with the meticulous and comprehensive legal advice that he
    received from two experienced practitioners.

[17]

Finally,
    the appellant directs our attention to paragraph 368 of the trial judges
    lengthy reasons, which contains a reference to the respondents evidence. The
    appellant submits that the trial judge erred in effectively incorporating by
    reference the written submissions of respondents counsel into his reasons,
    without identifying the particular submissions adopted or engaging in an
    independent assessment of the trial evidence.

[18]

We
    do not accept this submission. We agree that the trial judge should not
    have simply adopted by reference counsels lengthy written submissions without
    identifying with more particularity the submissions that he endorsed and the
    basis for his agreement with them. However, when the trial judges reasons
    are read as a whole, it is clear that his evidentiary analysis goes well beyond
    paragraph 368 and consists of an independent assessment of all of the relevant
    trial evidence. In that context, the reference to counsels submissions
    serves no more than to indicate agreement with them, as evidenced by the
    balance of the trial judges reasons.

[19]

The
    appellants submissions concerning the trial judges evidentiary errors
    effectively invite this court to re-examine and re-weigh the evidence. That is
    not our function. We see no error in the trial judges findings that would
    permit us to intervene.

[20]

The
    appellant also seeks leave to appeal the trial judges determination of costs,
    arguing that the trial judge erred in failing to order that all of the
    appellants trial costs be paid from her fathers estate. The appellant also
    argues that the quantum of costs ordered should be reduced.

[21]

We
    disagree. While acknowledging that he had the discretion to order payment of all
    of the appellants costs from her fathers estate, the trial judge determined
    that it would be unfair to do so. The appellant was entirely unsuccessful at
    trial and payment of her costs from the estate would effectively leave the
    respondent with nothing. The trial judge nevertheless exercised his discretion
    to order that a part of the appellants costs be paid from the estate. We see
    no error in the trial judges discretionary decision, which is entitled to
    deference. Further, the appellant has not identified any reviewable error in
    the amount of costs ordered by the trial judge.

[22]

Accordingly,
    the appeal and leave to appeal are dismissed.

[23]

The
    respondent is entitled to her partial indemnity costs in the amount of $15,000.00,
    inclusive of disbursements and applicable taxes.

G.R. Strathy C.J.O.

L.B. Roberts J.A.

David M. Paciocco
    J.A.


