Hill v. Hill Family Trust et al.,

• Judge: C,Costigan,Hughes
• Neutral Citation: 2013 ABCA 137
• Citation: (2013), 553 A.R. 16,2013 ABCA 137,553 AR 16,(2013), 553 AR 16,553 A.R. 16
• Date: 05 April 2013
• Court: Court of Appeal (Alberta)

Hill v. Hill Family Trust (2013), 553 A.R. 16; 583 W.A.C. 16 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.101

Daniel Walter Hill (appellant/plaintiff) v. Paul James Hill, Richard P. Rendek, Rand Flynn, Famhill Investments Limited and Harvard Developments Inc. (respondents/defendants)

(1201-0146-AC; 2013 ABCA 137)

Indexed As: Hill v. Hill Family Trust et al.

Alberta Court of Appeal

Côté and Costigan, JJ.A., and Hughes, J.(ad hoc)

April 23, 2013.

Summary:

The plaintiff sued his brother Paul Hill, the trustees of the Hill Family Trust created in 1975, and others, claiming a one-quarter interest in the trust's assets.

The Alberta Court of Queen's Bench, in a decision reported at 540 A.R. 158, dismissed the action. The plaintiff appealed.

The Alberta Court of Appeal dismissed the appeal.

Editor's Note: In a decision reported at 501 A.R. 227 (Q.B.), an application by the plaintiff to amend his pleadings to add as defendants the executors under the last will and testament of Fred Hill, a named defendant who had died, was dismissed.

In a decision reported at 543 A.R. 1 (Q.B.), the defendants were awarded costs of the proceedings based on four times Schedule C, Column 5, with the exception of 29 half days after the plaintiff had essentially closed his case and discontinued a number of claims.

Deeds and Documents - Topic 1521

Execution - Sealing - General - [See Deeds and Documents - Topic 1603 ].

Deeds and Documents - Topic 1603

Execution - Delivery - What constitutes delivery - The Hill Family Trust was created by Fred Hill, father and patriarch of the Hill family, in December 1975 - The plaintiff sued his brother Paul Hill and the trustees of the Hill Family Trust, among others - He claimed a one-quarter interest in the trust's assets (Famhill) by virtue of a 1976 Deed of Appointment in favour of four of the five Hill children - This document was either destroyed, lost or misplaced - However, a Stock Power of Attorney existed, whereby the trustees authorized the transfer of 950 of the 3,800 common shares of Famhill to each of four of the five Hill children - Fred Hill was now deceased - His lawyer testified that the purpose of the Stock Power of Attorney was solely to secure the transfer of the shares on Famhill's books - The trial judge dismissed the action, holding that no appointment of the trust assets occurred in 1976-77; the Deed of Appointment had not been proceeded with - Rather, the trust continued to operate as it was created until the valid Appointment of the trust assets upon Paul in 1995 - Fred's wife (Shirley), his son Paul and a family friend (Sneath) were the three trustees under the 1975 trust - Sneath and Shirley were also deceased - The judge found, inter alia, that the Deed, while signed, had been neither sealed nor delivered - While a seal was affixed to the document, the process of sealing also required "acts or words sufficient to show that it is intended by the party to be executed as his deed presently binding on him" - Shirley, due either to mistake, misapprehension or oversight, was ignorant that the effect of her signature would be to appoint the assets in an unacceptable, discriminatory fashion - Once she realized that, she made it clear that she never had such an intention (i.e., she did not intend that the words in the document would be binding upon her) - Thus, as it related to Shirley, there was no sufficient act of sealing and no good seal in the eyes of the law - Paul's testimony was that he signed and had his signature "sealed", but before any decision appointing assets had been made - Thus his signature under seal was meaningless and of no legal effect - The requirement of "delivery" also referenced any act or conduct from which an intention to be bound by the terms of the deed might be inferred - The comments regarding the absence of a factually and lawfully effective sealing applied equally to delivery - As a result, there was no factually nor legally effective delivery - The plaintiff appealed - The Alberta Court of Appeal dismissed the appeal - See paragraphs 25 to 36.

Evidence - Topic 1226

Relevant facts - Relevance and materiality - State of mind - General principles - [See Evidence - Topic 1527 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Hill Family Trust was created by Fred Hill, father and patriarch of the Hill family, in December 1975 - The plaintiff sued his brother Paul Hill and the trustees of the Hill Family Trust, among others - He claimed a one-quarter interest in the trust's assets by virtue of a 1976 Deed of Appointment in favour of four of the five Hill children - This document was either destroyed, lost or misplaced - However, a Stock Power of Attorney existed, whereby the trustees authorized the transfer of 950 of the 3,800 common shares of the trust's holding company (Famhill) to each of four of the five Hill children - Fred Hill was now deceased - His lawyer (MacAuley) testified that the purpose of the Stock Power of Attorney was solely to secure the transfer of the shares on Famhill's books - The trial judge dismissed the action, holding that no appointment of the trust assets occurred in 1976-77 - Rather, the trust continued to operate as it was created until the valid Appointment of the trust assets upon Paul in 1995 - The court found that the Deed of Appointment had not been proceeded with - Fred's wife (Shirley), his son Paul and a family friend (Sneath) were the three trustees under the 1975 trust - The court found, inter alia, that there was nothing in place for the fifth (mentally ill) child and Shirley had refused to execute anything that would treat her children unequally - The court relied upon her comments to MacAulay for their truth under the principled exception to the hearsay rule - The parties agreed that threshold "necessity" was met where Shirley was deceased - The court found that threshold "reliability" was established - Shirley's words to MacAulay also reflected what Fred had said to him as well, that the matter not proceed; it had been aborted - Shirley's comments, even if not admissible for their truth, reflected her commitment to not discriminate as between her children - The purported Appointment allegedly being aborted would be reflective of Shirley's commitment to equal treatment of the children - On appeal, the plaintiff submitted that the trial judge erred in admitting this evidence as the reliability tests for hearsay were not met - The Alberta Court of Appeal rejected the submission - "The disputed topics are factual and no reversible error is shown, only a dispute about weight. In any event, the mother's statements were about her desires, will, and state of mind. If that was hearsay, such statements have always been an exception to the hearsay rule. No other direct evidence of a person's state of mind is possible. The lawyer was a perfectly neutral witness and far from a casual or idle bystander ignorant of the significance of what he heard." - See paragraph 17.

Practice - Topic 9232

Appeals - New trials - Bars - The plaintiff's action was dismissed - He appealed, complaining, inter alia, that the trial judge did not rule on a particular issue - He asked that the topic be sent to "try" - The Alberta Court of Appeal rejected the request - There was nothing about the topic in the prayer for relief, nor in argument - The plaintiff's trial counsel expressly declined to make any argument on the topic, despite several chances to do so - So none of the defendants argued the topic either - The trial judge did not err in not ruling on the issue - The plaintiff was asking the court to open up the suit and create a further trial because he was now represented by a different law firm which had more confidence in arguing the issue than his first trial counsel had - The court stated that "We have heard of Courts of Appeal deciding new legal questions where all the evidence was available (though it happens rarely). But we have never heard of a plaintiff not advancing a branch of his old statement of claim at trial, and then opting to raise it again with all new evidence on the topic. The appellant cites no authority to support such a novel proceeding. That would take litigation by instalments to a new height, freed from any judicial control. It would make a mockery of the rule that res judicata covers both what was raised, and what should have been raised, at the first trial. Sometimes the courts give a litigant an indulgence to cure some slip or accident (on stiff terms), but not even that is alleged here. 'I and my new lawyers are better than my previous lawyers' is not enough. Nor is 'I've changed my mind.' Nor is 'let's play double or nothing'." - See paragraphs 55 to 62.

Cases Noticed:

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 17, footnote 1].

Pitt v. Holt, [2011] 2 All E.R. 450 (C.A.), refd to. [para. 52, footnote 4].

Authors and Works Noticed:

Phipson on Evidence (17th Ed. 2010), pp. 993, 995 to 997 [para. 17, footnote 1].

Sopinka, John, Lederman, Sidney M., and Bryant, Alan W., The Law of Evidence in Canada (3rd Ed. 2009), pp. 330 to 337 [para. 17, footnote 1].

Counsel:

C.J. Popowich and K. Reiffenstein, for the appellant, Daniel Walter Hill;

M.O. Laprairie, Q.C., and J.R. Wildeman, for the respondents, Paul James Hill, Richard P. Rendek and Rand Flynn;

F.R. Foran, Q.C., and J.G. Hopkins, for the respondents, Famhill Investments Limited and Harvard Developments Inc.

This appeal was heard on April 5, 2013, by Côté and Costigan, JJ.A., and Hughes, J.(ad hoc), of the Alberta Court of Appeal. The court delivered the following memorandum of judgment on April 23, 2013.