



COURT OF APPEAL FOR ONTARIO

CITATION: Trotter Estate, 2014 ONCA 841

DATE: 20141126

DOCKET: C56823

van Rensburg, Hourigan and Benotto JJ.A.



In the matter
of the Estate of Audrie Jean Trotter, deceased

BETWEEN

William
John Trotter, Catherine Ruth Trotter


and Robert Trotter

Applicants (
Appellants
)

and

Johnstone
Dempsey Trotter personally, and Johnstone Dempsey Trotter and James Bell in
their capacity as estate trustees with a will in the estate of

Audrie Jean Trotter

Respondents (Respondents
in Appeal)



Application under Rule 14

of the
Rules
of Civil Procedure



AND

In the matter
of the Estate of Audrie Jean Trotter, deceased

BETWEEN

William John Trotter, Catherine and Ruth Trotter

Applicants (Appellants)

and

Johnstone
Dempsey Trotter personally, and Johnstone Dempsey Trotter and James Bell in
their capacity as estate trustees with a will in the estate of

Audrie Jean Trotter



Respondents (Respondents
in Appeal)



Application under Rule 14

of the
Rules
of Civil Procedure



Martin Teplitsky, Q.C., for the appellants

Brian A. Schnurr and Jordan D. Oelbaum, for the
respondent estate trustees

Michael Adams, for the respondent Johnstone Dempsey
Trotter

Heard: September 23, 2014

On appeal from the judgment of Justice
Margaret
Eberhard of the Superior Court of Justice, dated February 22, 2013, with
reasons reported at 2013 ONSC 1182.



Benotto J.A.:

[1]

The parties to this appeal are family members embroiled in a bitter
dispute over their mothers estate. In two related actions, the appellants
challenged the validity of her wills and certain
inter vivos
transfers
of land. They alleged undue influence in both the will and transfer actions,
and also argued that the two impugned transfers were procured by fraud. Vastly
differing factual assertions are put forward by those who attack and those who
defend the dispositions.

[2]

The appellants actions were dismissed with costs of $400,000 after the
respondents brought a successful motion for summary judgment. This appeal
concerns the process by which the motion judge determined that there was no
genuine issue requiring a trial.

[3]

The appellants assert that the action was not capable of being resolved
on the basis of the written record, as evidenced by the motion judges failure
to make the credibility findings necessary to support her conclusion on undue
influence. The appellants also allege that the motion judge erred in dismissing
the transfer action on the basis that it was subsumed within the wills action. Finally,
the appellants submit that the motion judges reasons raise a reasonable
apprehension of bias and that the costs order was excessive.

[4]

The respondents argue that there was evidence from which the motion
judge could, in her discretion, conclude that there was no issue requiring a
trial. Further, the
inter vivos
transfer action did become moot once
the wills action was dismissed. Even if the transfers were set aside, the
respondent Johnstone Dempsey Trotter would still inherit the properties by way
of the 2005 will.

[5]

I have concluded that the motion judge erred in her approach to the
summary judgment determination. She undertook the analysis in a conclusory
fashion and failed to make the findings of credibility necessary to support her
ultimate decision. This conclusion is dispositive of the appeal and it is not
necessary to address the dismissal of the transfer action or the award of
costs. I will nonetheless briefly address the allegation of reasonable
apprehension of bias.

I.

Background

(1)

The Parties

[6]

Audrie and Ty Trotter had five children: William (Bill), Catherine (Kate),
Robert, Phillip and Johnstone (John). Ty died in 1996, and Audrie died in
2008. The challenged wills and
inter vivos
transfers were executed by
Audrie.

[7]

Kate and Bill, the appellants in this appeal, brought the initial
application to challenge Audries wills. Robert was added as a plaintiff and was
represented by separate counsel. He takes no part in this appeal. The
respondents are John in his personal capacity as well as John and James Bell in
their capacity as estate trustees. Phillip was not a party to the proceedings
but gave evidence as a witness for John.

(2)

The Assets

[8]

Audrie and Ty Trotter lived in Gilford, Ontario. They operated a gas
station and garage at Fennells Corner at the junction of Highway 11 and
Highway 89. The garage business was held in the name of Trotters Garage Inc.
The garage was on a lot owned by Trotters Holdings Inc. Ty owned the shares of
both corporations. John worked with his father in the garage business. At some
point, Johns friend George Pohle also began working at the garage. George was
a beneficiary under several of Audries wills.

[9]

Ty and Audrie owned approximately 100 acres of farm land adjacent to the
garage. The farm contained an old barn and a rental house. Their home of many
years was on a separate property across the road from the farm. Next to this residential
property was another lot that contained a residence (the "white house")
and a small barn. This lot was typically used as a rental property.

(3)

The Wills and Transfers

[10]

In
1995, Ty and Audrie signed mirror wills prepared by their local family lawyer,
Roy Gordon. The wills left each of their children an equal share of their
assets, excluding all the shares in Trotters Garage Inc. and 50% of the shares
in Trotters Holdings Inc., which were left to John.

[11]

Ty
died in 1996. The Trotters Garage Inc. shares vested in John, who continued to
operate the garage. The rest of Tys estate, including 50% of the shares in
Trotters Holdings Inc., went to Audrie. Johns entitlement to the shares relating
to the garage business has never been at issue.

[12]

In
October 1999, Audrie made a new will, also prepared by Mr. Gordon. This will left
John the farm and surrounding properties on the condition he pay $50,000 to
both Kate and Phillip and $5,000 to George Pohle. Audrie named John and
Audrie's brother, Douglas Dempsey, as co-executors. The residue of the estate
was divided equally among the five children.

[13]

The
following year, Audrie changed lawyers. She was concerned that Mr. Gordon was
not keeping her matters confidential. She arranged to travel to Toronto to meet
with a lawyer, Earl Heiber. Audrie gave Mr. Heiber instructions for a new will.
It was signed in May 2000. This time, the will entitled both Kate and Phillip to
one-acre parcels of the farm and to 25% of the residue of the estate. John
received the remaining shares in Trotters Holdings Inc., the residence
property, the rental property containing the white house and the remaining 50%
of the residue of the estate. The remainder of the farm and a time share
property in Florida were to be sold, with the proceeds accruing to the residue
of the estate. George Pohle was to receive $5,000. John was no longer an
executor.

[14]

Audrie
told Mr. Heiber that John was trying to manipulate her and was being selfish,
but was taking good care of her. Audrie did not tell John about her visit to
Mr. Heiber. She made efforts to ensure that John would not find out about the
new will by having Mr. Heiber send all the documents to her brother's residence
and by asking her brother to pay the legal bill.

[15]

In
November 2000, Audrie returned to Mr. Gordon and asked him to transfer her
residence to herself and John as joint tenants. She signed the transfer in
January 2001.

[16]

In
December 2002, Audrie executed a new will, again prepared by Mr. Heiber in
Toronto. This will was similar to the previous will, but increased the
entitlements of Kate and Phillip. Kate and Phillip were each left ten-acre
parcels of the farm. John was to receive an eight-acre parcel of the farm
containing the rental house and the barn. If severance of these parcels was
impossible, John was to pay Kate and Phillip each 12% of the appraised value of
the farm should he desire to keep the property. In the event John did not pay
this amount, the farm was to be sold with the proceeds accruing to the residue
of the estate. The residue was to be divided as follows: 40% to Kate, 40% to
Phillip and 20% to John.

[17]

In
July 2003, Audrie asked Mr. Gordon to prepare a transfer of the farm to herself
and John as joint tenants. She signed the transfer in August 2003.

[18]

In
July 2005, Audrie executed a final will. This time it was Mr. Gordon, not Mr.
Heiber, who prepared the will. In this will Audrie left no real or personal
property to Kate or Phillip. Earlier wills had divided the majority of Audries
personal property between Kate, Phillip and John. In contrast to the previous
will, the 2005 will left the entire residue to John. The will confirmed that
ownership of the residence and the farm vested in John through survivorship. John
was directed to pay Kate and Phillip $50,000 each in consideration for these
transfers. Audrie left the rental property containing the white house to George
Pohle.

[19]

Audrie
died on March 6, 2008.

(4)

The Barn Invoices

[20]

The
old barn on Audrie's farm was apparently in bad shape, having been damaged in a
storm. Johns evidence was that the barn needed to be demolished and this would
have been very expensive. He claimed that he and his mother agreed that he
would try to rebuild the barn. In order to protect his interests in the event of
a future dispute over his entitlement to the farm property, he asserted that he
and his mother arrived at an arrangement. John would record his time and
expenses and produce invoices for Audrie to sign.

[21]

John
started the barn renovation project in the summer of 2001 and worked until the
end of 2002. He prepared two invoices: the first on November 13, 2001, signed
by Audrie on April 29, 2002, and the second on December 23, 2002, signed by
Audrie on December 28, 2002. The invoices totalled approximately $740,000, and
included GST and PST. John stated he did not know the actual cost of the work
on the barn, what he paid out of pocket or why he included GST and PST.

[22]

John
explicitly stated in his affidavit that the transfer of the residence and the
farm to him and his mother jointly was in lieu of payment for the invoices.
John estimated that the total value of the farm property was $500,000 to $600,000.
John agreed that the barn was used almost exclusively for storage.

[23]

The
appellants allege that John fraudulently issued the invoices to obtain title to
the house and farm. The appellants argue that the amount cannot be
substantiated and that it would have been illogical to spend more on the barn
than the property was worth. Kate testified that it would have bothered her
mother a great deal to have a debt outstanding, let alone one of this
magnitude.

II.

The Summary Judgment Motion

[24]

In
December 2009, the two related actions challenging the validity of Audries
wills and the
inter vivos
transfers were ordered to be tried together.
Robert was added as a plaintiff. In April 2012, Johns counsel brought a motion
for summary judgment in the wills action. The evidence filed on the motion included
affidavits, cross-examination transcripts and documentary exhibits. The motion
was heard over six days commencing in October 2012 and ending in January 2013. The
motion judge did not hear any oral evidence. Costs submissions followed.

(1)

Johns Position

[25]

John's
position on the motion was that a trial was not required. The unequal treatment
of Audries children was not surprising since Bill and Robert were estranged
from Audrie and Kate did not provide care or attend upon Audrie with any
regularity. Most importantly, it was John who cared for and looked after Audrie,
supporting her financially and investing time, resources and energy into
improving her properties.

[26]

John
left university in order to help run the garage and look after his parents. The
other siblings moved away. As a result of Johns work at the garage, his
parents standard of living improved. They were able to travel and purchase the
time share in Florida.

[27]

The
transfers were reasonable in light of the 18 months John spent working on the
barn. Although he presented invoices to his mother for $740,000, he did not
make a demand for payment.

(2)

The Appellants Response

[28]

The
appellants evidence portrayed a pattern of isolation, domination and influence
that John exerted over Audrie. There were detailed descriptions of Johns explosive
anger and temper. There was evidence of Audries fear of displeasing John.

[29]

In
May 1999, a few years after Ty died, Kate took Audrie to lunch. Audrie informed
Kate she could not stay too long because John would become angry and
suspicious. When Kate brought Audrie home, John rushed into the house, slammed
the door and asked where Audrie had been. He searched Audries purse. A few
months later, Audrie executed her 1999 will which named John as a co-executor
and gave him the farm. When John learned that he was not the sole executor, he became
angry with Audrie.

[30]

The
following year, Audrie went to Mr. Heiber. Her comments to Mr. Heiber about
Johns attempts to manipulate her, as well as her steps to keep Mr. Heiber's
involvement secret, demonstrate her fear of John.

[31]

John
had a violent streak. In 2001, he attacked his 15 year old cousin during a
family trip to Florida. While she was joking with him, John grabbed her neck without
warning until her face turned red. She was finally released when she was able
to kick him in the groin.

[32]

On
December 31, 2002, Audrie returned to Mr. Heiber, again without John's
knowledge. She signed the second will prepared by Mr. Heiber which substantially
increased the entitlements of Kate and Phillip, and gave them each significant
parcels of the farm. However, seven months later, she removed the farm from her
estate when she instructed Mr. Gordon to transfer it into a joint tenancy with
John. John stated in his affidavit that the transfer was in lieu of payments
for invoices totalling over $740,000, which he charged her for the barn
renovation. The appellants allege that he provided insufficient basis for the reasonableness
of the repair costs.

[33]

In
2004, Audries niece and Kate planned a birthday party for Audrie's brother,
Douglas Dempsey, in Toronto. Audrie originally planned to attend, but changed
her mind out of concern that she would have trouble with John if she went.

[34]

When
Audrie changed her will again in 2005 with the assistance of Mr. Gordon, she
was frail and in a wheelchair. Just a week before the signing, she had been in
the hospital.

[35]

Roy
Gordon was Johns lawyer on other matters, and the two were friends. Mr. Gordon
acted for both Audrie and John in the property transfers.

[36]

In
2007, Kate went to Florida to visit Audrie. Kate's uncle Doug told her that
Audrie did not want John to know that Kate had visited. Later the same year, Kate
arranged a doctor's appointment in Toronto to deal with cancerous sores on
Audrie's feet and legs. At the last minute, Audrie left the following voicemail
for Kate:

Don't bother making the appointment with [the doctor] please
because I have upset John so much. I ran it by him and he's not very happy with
the whole deal and I can't stand fighting anymore about it. He gets so upset

[37]

Johns
actions rendered Audrie physically dependent and vulnerable. As her health
deteriorated, John looked after her personal care even though female caregivers
were available. Audrie was a dignified and private person who would have found
this embarrassing.

[38]

Audrie
told Kate that she did not want the improvements done to the barn. She thought
it was a waste of money. She told her niece it was easier just to let John do
what he wanted.

[39]

In
March 2008, Audrie was admitted to the hospital and John instructed the
hospital staff not to contact any family members. She died a few days later.

(3)

Reasons of the Motion Judge

[40]

The
motion judge allowed the respondent's motion, thereby dismissing the claim of
undue influence. She reviewed nine points regarding undue influence raised by
the appellants: (1) relationship of dependency and control between Audrie and
John, (2) drastic change to the wills, (3) evidence of testamentary intention,
(4) Audrie's character, (5) John's character, (6) John's anxiety to get the
benefits under the will, (7) the absence of independent legal advice received
by Audrie, (8) evidence of John's dishonesty and his inconsistencies and (9)
the moral claims of the other potential beneficiaries. She summarized the
evidence with respect to each heading.

[41]

The
motion judge determined that the claim of undue influence was based on bald
allegations. She found that Audrie was an independent person who made her own
plans for her will. She organized her life to her liking. There was no evidence
that John had pressured Audrie or that Audrie had been affected by any
influence from John. Audrie openly expressed her opinion on Johns changes to
the barn and often won arguments with him. She changed executors because she
lost respect for one of her trustees. Her one failing was that her children did
not get along, and had been distant with each other for some time. Audrie
managed these relationships by not telling her children about her contact with
the others, but was tired of the fighting.

[42]

The
motion judge then turned to the allegedly fraudulent invoices. She found that
the invoices were for John's work as well as money he spent. Audrie was present
to observe the changes made to the barn, and signed off on the invoices. There
was no evidence of any demand for payment being made, and nothing supported the
appellants contention that John compelled the transfers of property. Audrie
expressly stated her reason for the farm transfer in a letter to her lawyer: John
paid off the mortgage and put work and money into the barn and the house on
that property.

[43]

The
motion judge determined that the challenge to the
inter

vivos
transfers was subsumed within the challenge to the will and therefore failed
along with the wills action.

III.

Analysis

[44]

The
issues in this appeal raise one main question: did the motion judge use the
proper approach to summary judgment in the face of
highly
contested facts?
I will explain my conclusion on the summary judgment
motion and then make brief comments regarding the allegation of a reasonable apprehension
of bias.

(1)

Summary Judgment

[45]

This
motion was heard and decided before the Supreme Court of Canada released its
decision in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, which
expanded the availability of summary judgment. This might, at first view, lead
to the conclusion that judgment granted under a stricter regime would attract
significant deference on appeal. However, the motion judges approach to her
conclusion was fundamentally flawed. She made palpable and overriding errors in
relation to her analysis of the evidence, erred in her conclusion regarding the
legal requirements for undue influence and made conclusory determinations on
important factual and legal issues in dispute without conducting a credibility
analysis.

[46]

I
begin by reviewing the evolution of motion judges powers in the context of summary
judgment. Next, I review the motion judges approach in the present case.
Finally, I address her analysis with the benefit of the
Hryniak
framework. As will be explained, even pursuant to the more expansive approach
to summary judgment, the decision cannot stand.


i.

Expanded Powers Pursuant to the Rules

[47]

The
2010 amendments to the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
expanded the availability of summary judgment by altering the wording of the
test and vesting motion judges with enhanced powers to assess conflicting
evidence. The test under rule 20.04(2)(a) is no longer whether there is a
genuine issue for trial but rather whether there is a genuine issue
requiring
trial. The additional powers granted to motion judges under rules
20.04(2.1) and (2.2) are as follows:

Powers

(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)

(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.

[48]

These
changes were designed and implemented to improve access to justice by providing
a mechanism to resolve issues more expeditiously than through a traditional
trial. In appropriate cases, the motion for summary judgment provides an
alternative model of adjudication that has the benefit of streamlining the process
for litigants and making the civil justice system more accessible and
affordable.

[49]

However,
the fact that the new process of adjudication is well-intentioned and can be beneficial
cannot impose an imperative on the court to use it in every case. There is a
risk that, in an effort to dispose of the case, the evidence will not be
properly analysed. The Supreme Court affirmed in
Hryniak
, at para. 28,
that [t]he principal goal remains the same: a fair process that results in a
just adjudication of disputes.


ii.

The Motion Judges Analysis

[50]

The
motion judge erred in fact and law. She incorrectly labelled the appellants
evidence bald allegations, failed to make credibility findings, erred in her
analysis of undue influence and failed to properly consider the barn invoices.

(a)

The bald allegations

[51]

There
are repeated references in the motion judges reasons to the appellants bald
allegations, implying that the evidence before her on its face was sufficient
for her to conclude that there was no genuine issue requiring a trial. A review
of the record, however, reveals that the allegations were not bald. There was
evidence concerning Johns anger, his temper, his efforts to keep Audrie
isolated from Kate, Audrie's fear of him, her dependency upon him, his attempts
to manipulate her and her fear of being sent to a nursing home. There was
evidence that Audrie transferred the farm property to John because she felt
indebted to him for money he put into the barn. He sent her invoices for an
amount that was approximately $200,000 more than the value of the property
itself. The invoices alone support the appellants claims of undue influence
and fraud.

[52]

There
was evidence of control and domination on the one hand and fear and
vulnerability on the other. These are key components of an allegation of undue
influence, as will be discussed below.

[53]

The
motion judges conclusion that the evidence raised by the appellants  standing
on its own  consisted only of bald allegations and did not give rise to the
requirement for a trial reflects a misapprehension of the evidence.

(b)

Conclusory Findings

[54]

Since
the evidence adduced by the appellants was capable of supporting an allegation
of undue influence, it was incumbent upon the motion judge to explain why she
rejected it. This, of necessity, requires a credibility analysis pursuant to the
expanded judicial powers under rule 20.04(2.1) to weigh the evidence, evaluate
the credibility of the appellants deponents and draw reasonable inferences.

[55]

It
is not always a simple task to assess credibility on a written record. If it
cannot be done, that should be a sign that oral evidence or a trial is
required. The motion judge did not engage in a credibility analysis or attempt
to provide conclusions on credibility. Where important issues turn on
credibility, failure to make credibility findings amounts to reversible error: see
Sagl v. Cosburn, Griffiths and

Brandham

Insurance Brokers
Ltd
., 2009 ONCA 388, [2009] O.J. No. 1879, at paras. 98-100.

[56]

The
motion judge did not make proper use of the expanded powers under rule 20.04.
She reviewed the appellants evidence in support of the undue influence allegations,
but did not subject it to evaluation or make credibility findings. She did not
address the evidence of John's anger or its effect on Audrie. The motion judge
twice states that she is not going to place reliance on John's disputed
assertions, but accepts his uncorroborated evidence as to the legitimacy of the
barn invoices. She did not fully analyse the reasonableness of these invoices,
which I will discuss below.

[57]

There
was circumstantial evidence from which the court could infer that Audrie did
not want to prefer John over her other children. This was not addressed. Either
the motion judge failed to assess the evidence, which was improper in light of
the substantial evidence capable of supporting a claim of undue influence, or
her assessment of the evidence was wholly inadequate and unsubstantiated by her
reasons.

(c)

Undue Influence

[58]

Undue
influence involves the domination of the will of one person by another. Undue
influence exists when a testator is coerced into doing that which she does not
desire to do:
Wingrove

v. Wingrove
(1885), 11 P.D. 81 (Eng.
Prob. Ct.), at p. 82. As stated by Cullity J. in
Scott v. Cousins
, [2001]
O.J. No. 19, 37 E.T.R. (2d) 113 (S.C.), at para. 113, quoting E.V. Williams et
al.,
Williams, Mortimer and Sunnucks on Executors, Administrators and
Probate
, 17th ed. (London: Stevens & Sons, 1993), at p. 184:

There is no undue influence unless the testator if [she] could
speak [her] wishes would say this is not my wish but I must do it.

[59]

The
high burden of establishing undue influence rests with the party asserting it. However,
circumstantial evidence can be used by those challenging a will to discharge
their burden  otherwise, undue influence would cease to have much practical significance
in the law of wills:
Scott v.

Cousins
, at para 48.

[60]

The
motion judges conclusion that there was no undue influence is summed up in the
following statements, at paras. 145 and 180 of her judgment:

The inescapable finding that does not require a trial to fully
appreciate is that Audrie was nobody's fool.



I find that the record before me gives a full appreciation of
what Audrie wanted for herself and how she went about making it happen.

[61]

These
conclusions do not address the circumstances that were potentially indicative
of undue influence: Audries vulnerability and dependency, the allegations that
Audrie felt she had to please John despite her own wishes, the allegations of
domination and control, questions about the confidentiality and independence of
her legal advice and instructions, and Audries statements to an independent
lawyer that John was trying to manipulate her:
Scott v. Cousins
, at para.
114;
Gironda v. Gironda
, 2013 ONSC 4133, 89 E.T.R. (3d) 224, at para.
77.

[62]

Nor
do the motion judges conclusions accurately capture the law of undue
influence. Audrie could be nobodys fool and want certain things for herself,
yet still be subject to undue influence. Audrie could falsely believe that she
was heavily indebted to John as a result of his inflated invoices and thereby feel
obliged, contrary to her wishes, to do what he wanted. A person may appreciate
what she is doing but be doing it as a result of coercion or fraud: see
Vout
v. Hay
,

[1995] 2 S.C.R. 876, per Sopinka J., at para 29.

[63]

In
Boyse v. Rossborough
(1857), 10 E.R. 1192 (U.K. H.L.), Lord Cranworth
said, at p. 1211:

I am prepared to say that influence, in order to be undue
within the meaning of any rule of law which would make it sufficient to vitiate
a will, must be an influence exercised either by coercion or by fraud...



It is, however, extremely difficult to state in the abstract
what acts will constitute undue influence in questions of this nature. It is
sufficient to say, that allowing a fair latitude of construction, they must
range themselves under one or other of these heads  coercion or fraud.

Recent cases echo the notion that undue influence can
be exercised by coercion
or
fraud: see
Vout v. Hay
, at para.
21;
Scott v. Cousins
, at para. 39;
Zerbinati v. Doherty
, 2014
ONSC 4565, at para. 15.

[64]

The
motion judge addressed the effect of the barn invoices in the context of fraud,
but there was insufficient discussion of the interplay between fraud and
coercion in the undue influence context. In any event, as I discuss below, her
analysis of the barn invoices was flawed.

(d)

The Barn Invoices

[65]

The
motion judge did not adequately address the reasonableness of the invoices, nor
their possible effects on Audries intentions. They were a significant feature
of the allegations of both fraud and undue influence.

[66]

The
motion judge found that the only way for the appellants to succeed at trial was
to show that John was overestimating the value of the work on the barn to
obtain a transfer of the farm. She apparently held that the invoices were
legitimate, or at least did not affect Audrie. In my view, this was a palpable
and overriding error.

[67]

The
motion judge found that Audrie did not mention any amount owing to John when
explaining to Roy Gordon her reasons for the transfers of the house and farm.
However, at para. 176, she referred to Audries letter to Mr. Gordon requesting
the farm transfer, in which Audrie specifically states that John had put a lot
of money into the barn. John explicitly noted in his affidavit that the
transfers were in lieu of payment for the invoices. This directly supports the
appellants position that Audrie was influenced by the amount owing to John
when she made the transfers.

[68]

There
was little, if any, evidence supporting the reasonableness of the invoices John
presented to Audrie for the renovations. He was unable to substantiate the
amounts. This was particularly problematic given the fact that the total cost
drastically exceeded his own estimation of the value of the entire farm property.
There was no evidence adduced to explain why Audrie would have voluntarily
spent more on the renovation of a barn  used primarily for storage  than the
underlying property was worth.

[69]

Johns
evidence on cross-examination was insufficient to conclusively refute the
appellants allegations that he inflated the cost of the renovations. For
example, he did not know why he added GST and PST and he was only pretty sure
the bill included labour. He had no idea what he paid out of pocket and could
not support his assertion that the price he charged per square foot was
reasonable.

[70]

In
sum, the motion judges finding that the barn invoices were not fraudulent and
did not unduly influence Audrie was conclusory in light of the evidence of the
appellants and the lack of evidence from John supporting the validity of the
invoices. She made palpable and overriding errors in her assessment of Audries
motivations for transferring the farm property.

[71]

I now turn to consider the trial judges analysis through
the lens of the
Hryniak
framework.


iii.

The
Hryniak
framework

[72]

In
Hryniak
, the Supreme Court established a two-step process that motion
judges must follow on a summary judgment motion. First, a motion judge is to
determine  based only on the evidence before her  whether there is a genuine
requiring a trial. If not, then summary judgment should be granted. There will
be no genuine issue requiring a trial when the written record (1) allows the
judge to make the necessary findings of fact, (2) allows the judge to apply the
law to the facts and (3) is a proportionate, more expeditious and less
expensive means to achieve a just result:
Hryniak
,

at para.
49.

[73]

The
motion judges reference to bald allegations implies that the written record
on its face was sufficient to conclude that there was no genuine issue
requiring a trial. This would be the equivalent to dismissing the action at
step one of
Hryniak.

[74]

However,
as set out above, the allegations were not bald. The evidence conflicted. The appellants
evidence demonstrated a genuine issue requiring a trial.

[75]

At
this point, a motion judge may, at her discretion, move to step two of
Hryniak
,
where she must consider whether a trial can be avoided by using the powers
granted under rules 20.04(2.1) and (2.2) to weigh the evidence, evaluate
credibility, draw reasonable inferences and call oral evidence. These
discretionary powers are presumptively available unless it is in the interest
of justice to exercise them only at a trial.

[76]

In
the present case, the motion judge recited the evidence but did not weigh it,
evaluate it or make findings of credibility. Thus, even on the lower threshold
of
Hryniak
, the approach was flawed.


iv.

Conclusion on summary judgment

[77]

A
motion judge exercising the expanded powers under rule 20.04(2.1) is entitled
to deference on appeal. However, when a motion judge misdirects herself, errs
in principle or comes to a decision that is so clearly wrong that it results in
an injustice, the decision cannot stand:
Hryniak
, at paras. 83-84. In
my view, the motion judge took a conclusory approach to the summary judgment
motion. She ignored evidence relevant to the claim of undue influence and
failed to make the credibility findings necessary to support her conclusion. Her
analysis of the barn invoices was entirely unsatisfactory.

[78]

When
conflicting evidence is presented on factual matters, a motion judge is
required to articulate the specific findings that support a conclusion that a
trial is not required. The dangers of not doing so were highlighted by this
court in
Baywood Homes

Partnership v. Haditaghi
, 2014 ONCA
450, 120 O.R. (3d) 438, where Lauwers J.A. stated, at para 44:

Evidence by affidavit, prepared by a partys legal counsel,
which may include voluminous exhibits, can obscure the affiants authentic
voice. This makes the motion judges task of assessing credibility and
reliability especially difficult in a summary judgment and mini-trial context.
Great care must be taken by the motion judge to ensure that decontextualized
affidavit and transcript evidence does not become the means by which
substantive unfairness enters, in a way that would not likely occur in a full
trial where the trial judge sees and hears it all.

[79]

The
evidence in this case was extensive and conflicting. The allegations were not
bald and the motion could not be resolved on the basis that there was no
genuine issue requiring trial on the face of the evidence alone. Rather, credibility
assessments, a weighing of the evidence and possibly oral evidence were required.
The motion judges conclusory findings do not provide the analysis or reasoning
necessary to support her ultimate conclusion that there was no undue influence.

[80]

In
my view, the conflicts in this case could not be resolved on the basis of the
written record before the motion judge. While summary judgment may have been
appropriate had the motion judge exercised her powers under rule 20.04(2.2) to
hear oral evidence, she did not seek to do so. Her order must be quashed.

IV.

Apprehension of Bias

[81]

The
reasons of the motion judge contain disparaging remarks which appear to be
directed at the appellants. There were also direct attacks on the appellants
trial counsel. In light of my conclusion on the summary judgment issue, it is
not necessary to determine whether the comments rise to the high level that
would warrant overturning the decision. However, one comment in the reasons
must be addressed.

[82]

The
reasons refer to a homophobic undertone in the submissions as being especially
troubling. The implication is that the appellants counsel made inappropriate
remarks. The references to homosexuality arise from an affidavit filed by the
respondent wherein Bill is alleged to have referred to John and his homosexual
friends, and from questions on cross-examination regarding Johns relationship
with George Pohle. Somehow these comments seem to have been characterized as
homophobic submissions by the appellants counsel. Counsel for the respondent
agreed that the appellants counsel made no such submission. It is not
homophobic to inquire about the mere existence of a same-sex relationship.
Moreover, the allegation first appeared in the motion judges reasons, thereby
affording counsel no opportunity to respond. It was a serious and admittedly
baseless comment. It should not have been made.

V.

Disposition

[83]

I
would allow the appeal, set aside the summary judgment and costs order and
direct that the matter proceed to trial before a different judge.  I would
award costs of the appeal to the appellants fixed at $25,000 inclusive of
disbursements and applicable taxes.



Released: (KMvR) NOV 26, 2014                           M.L.
Benotto J.A.

I
agree K. van Rensburg J.A.

I
agree C.W. Hourigan J.A.






