COURT OF APPEAL SUMMARIES (August 31 – September 4, 2020)Middleton Estate v. Middleton, 2020 ONCA 552 (CanLII)
[Feldman, van Rensburg and Thorburn JJ.A.]
Robert J. Reynolds, for the appellant
Charles Hammond and Jennifer Ng, for the respondent
Keywords: Wills and Estates, Contracts, Interpretation, Debtor-Creditor, Promissory Notes, Civil Procedure, Fresh Evidence, Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.)
This was an appeal from a trial judgment that concluded that the first of two promissory notes reflected the true intention of the deceased, EM: the first note provides that a loan to her daughter, the appellant, LM, was repayable on her death, while the second provides that the loan be forgiven on death. There were six witnesses who testified on the circumstances of the signing of the promissory notes and EM’s discussions of her intentions relating to the notes.
Did the trial judge erred in his assessment of the evidence that corroborated her account of EM’s intentions and, in particular:
1. in rejecting JW’s evidence about what EM said in respect of the second promissory note; and
2. in his assessment of the evidence about the December 12, 2014 email, leading to his conclusion that EM did not send the email.
1. No. There was no reversible error in the trial judge’s conclusions on this issue. The credibility and reliability of the evidence of the witnesses is the province of the trial judge to which the Court owes deference. The appellant asserted that the trial judge erred in his treatment of the evidence of JW that would have supported her version of the events, in particular that the second promissory note was signed after her mother had decided that the note would be forgiven upon her death. JW witnessed the signing of both promissory notes at EM’s request but she did not read either of them. Nor did she have any discussions with EM about gifts to her children. The only relevance of JW’s evidence was to address the issue of what EM believed the second note said and any conversation she may have had with JW about why there was a second note. However, even if the trial judge had accepted JW’s evidence, there was nothing EM said to JW that indicated that EM intended to forgive the loan on her death or that the new note contained such a provision. Nor could what she said have overcome the direct evidence of EM’s intention. That evidence was EM’s subsequent actions in delivering her will and the first note to the lawyer who would handle her estate, and confirming her intentions to him.
2. No. The new evidence the appellant sought to introduce regarding the authenticity of the December 12, 2014 email did not meet the requirements for admitting fresh evidence. The appellant knew before the hearing commenced that CS would be testifying about EM’s emails. She was provided with copies of the emails that CS had exchanged with his grandmother and advised that the emails would be tendered to demonstrate that the December 12, 2014 email was fabricated by the appellant. The appellant was asked whether she wished to proceed in the face of this new allegation, and she agreed to proceed without an adjournment. The fact that EM was in the hospital on December 17, 2014 is information that was available to the appellant before and at the trial – EM was staying at her home, and the appellant testified that her mother was very sick, and went to the hospital the day after the December 12, 2014 email. Indeed, the evidence at trial was that EM was in and out of the hospital for the month of December. The appellant and her counsel had the opportunity to question the authenticity of the emails tendered by CS at the trial. The fact that they may not have turned their minds to the issue they now raise does not justify the admission of the proposed fresh evidence.
In any event, the admission of the proposed fresh evidence would not have changed the outcome of the trial. Even had the trial judge accepted the December 12, 2014 email as a genuine message from EM to the appellant, there could have been many explanations for it in the context of her illness. As with JW’s evidence, sentiment expressed vaguely in an email could not displace the only direct evidence of EM’s intention with respect to the loan and her estate, which was her delivery, just a couple of weeks earlier, of the first promissory note and her will to her lawyer. Even if EM had told the appellant that her intention was to forgive the loan on her death, based on the evidence that was available, the appellant was not able to prove that intention at trial in the face of her mother’s act of relying on the first note by giving it to her lawyer.