Trotter Estate, Re, 2014 ONCA 841

• Judge: van Rensburg, Hourigan and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 26, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 841;(2014), 328 O.A.C. 167 (CA)

Trotter Estate, Re (2014), 328 O.A.C. 167 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.004

In The Matter Of the Estate of Audrie Jean Trotter, deceased.

William John Trotter, Catherine Ruth Trotter and Robert Trotter (applicants/ appellants ) v. 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)

William John Trotter, Catherine and Ruth Trotter (applicants/appellants) v. 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)

(C56823; 2014 ONCA 841)

Indexed As: Trotter Estate, Re

Ontario Court of Appeal

van Rensburg, Hourigan and Benotto, JJ.A.

November 26, 2014.

Summary:

In two related actions, the applicants challenged the validity of their mother's wills and certain inter vivos transfers of land. The applicants alleged undue influence by their respondent brother and fraud in obtaining the two transfers. The brother and executors applied for summary judgment to dismiss the actions.

The Ontario Superior Court, in a judgment reported [2013] O.T.C. Uned. 1182, granted summary judgment dismissing both actions with costs of $400,000. The trial judge determined that on the written record there was no genuine issue requiring a trial. The applicants appealed. They argued that the action was not capable of being resolved on the written record and that the trial judge erred in finding that the transfer action was subsumed in the wills action. The applicants also argued that the trial judge's reasons raised a reasonable apprehension of bias and that the costs order was excessive.

The Ontario Court of Appeal allowed the appeal and set aside the trial judge's decision granting summary judgment. The trial judge erred in her approach to granting summary judgment by undertaking a conclusory analysis and failed to make findings of credibility necessary to support the ultimate decision that there was no genuine issue requiring a trial. It was unnecessary to address the issues involving the transfer action or costs. Although unnecessary to decide, the court opined that the trial judge did make a serious and admittedly baseless comment that should not have been made.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - A mother's wills favoured one brother over his siblings - The brother also received various inter vivos transfers of property - The siblings brought actions challenging the wills and transfers, alleging undue influence and fraud - A motions judge granted summary judgment dismissing the actions, finding that there was no genuine issue required for trial (rule 20.04) - The Ontario Court of Appeal allowed the appeal and quashed the decision - The evidence was limited to affidavits, cross-examination transcripts and documents - There was no oral evidence - There was conflicting evidence of undue influence and fraud - The brother argued that his leaving university to care for his mother and run the family business was the reason for his favour - The siblings argued that there was a pattern of isolation, domination and influence exerted over their mother - The motions judge, without giving reasons or making credibility findings, determined that undue influence was not supported by the "bald allegations" - The court held that "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 judge's conclusory findings do not provide the analysis or reasoning necessary to support her ultimate conclusion that there was no undue influence. ... 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." - See paragraphs 24 to 80.

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - [See Practice - Topic 5702 ].

Wills - Topic 1714

Preparation and execution - Undue influence - Evidence and proof - The Ontario Court of Appeal stated that "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. ... 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' ... A person may appreicate what she is doing but be doing it as a result of coercion or fraud" - See paragraphs 58, 62.

Cases Noticed:

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 45].

Sagl v. Cosburn, Griffiths & Brandham Insurance Brokers Ltd. et al. (2009), 249 O.A.C. 234; 2009 ONCA 388, refd to. [para. 55].

Wingrove v. Wingrove (1885), 11 P.D. 81 (Eng. Prob. Ct.), refd to. [para. 58].

Cousins Estate, Re, [2001] O.T.C. 9; 37 E.T.R.(2d) 113 (Sup. Ct.), refd to. [para. 58].

Scott v. Cousins - see Cousins Estate, Re.

Gironda v. Gironda, [2013] O.T.C. Uned. 4133; 2013 ONSC 4133, refd to. [para. 61].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 62].

Vout v. Hay - see Hay Estate, Re.

Boyse v. Rossborough (1857), 10 E.R. 1192 (H.L.), refd to. [para. 63].

Zerbinati v. Doherty, 2014 ONSC 4565, refd to. [para. 63].

Baywood Homes Partnership et al. v. Haditaghi et al. (2014), 322 O.A.C. 322; 120 O.R.(3d) 438; 2014 ONCA 450, refd to. [para. 78].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 20.04(2.1), rule 20.04(2.2) [para. 47].

Rules of Court (Ont.) - see Rules of Civil Procedure (Ont.).

Authors and Works Noticed:

Williams, E.V., Mortimer, C., and Sunnucks, J.H.G., Executors, Administrators and Probate (17th Ed. 1993), p. 184 [para. 58].

Counsel:

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.

This appeal was heard on September 23, 2014, before van Rensburg, Hourigan and Benotto, JJ.A., of the Ontario Court of Appeal.

On November 26, 2014, Benotto, J.A., released the following judgment for the Court.