Estates & Trusts Reports

ESTATES & TRUSTS REPORTS Fourth Series/Quatrième série Recueil de jurisprudence en droit des successions et des fiducies VOLUME 17 (Cited 17 E.T.R. (4th)) EDITOR-IN-CHIEF/REDACTRICE´ EN CHEF Sharon Yale, LL.B., M.A. Barrister and Solicitor Toronto, Ontario ONTARIO EDITOR/REDACTRICE´ POUR L’ONTARIO Lori M. Duffy, B.A., LL.B., LL.M. Weir Foulds LLP Toronto, Ontario ASSOCIATE EDITORS/REDACTEURS´ ADJOINTS Timothy G. Youdan, M.A., LL.M. Hugh S. McLellan, B.COMM., LL.B. Davies Ward Phillips & Vineberg McLellan Herbert Toronto, Ontario Vancouver, British Columbia Ian M. Hull, B.A.(HONS.), LL.B. John E. S. Poyser, B.A., LL.B. Hull & Hull Tradition Law LLP Toronto, Ontario Winnipeg, Manitoba EDITORIAL STAFF/REDACTION´ Cheryl L. McPherson, B.A.(HONS.) Rebecca Y. Tobe, B.A., LL.B. Director, Primary Content Operations Product Development Manager Nicole Ross, B.A., LL.B. Julia Fischer, B.A.(HONS.), LL.B. Supervisor, Legal Writing Supervisor, Legal Writing Peggy Gibbons, B.A.(HONS.), LL.B. Barbara Roberts, B.A.(HONS.), LL.B. Senior Legal Writer Lead Legal Writer Martin-Fran¸cois Parent, LL.B., LL.M., Donna Dickson DEA (PARIS II) Content Editor Bilingual Legal Writer ESTATES & TRUSTS REPORTS, a national series of topical law reports, is Recueil de jurisprudence en droit des successions et des fiducies, une published 12 times per year. Subscription rate $493.00 per bound volume in- série nationale de recueils de jurisprudence spécialisée, est publié 12 fois par cluding parts. année. L’abonnement est de 493 $ par volume relié incluant les fascicules.

Editorial Offices are also located at the following address: 430 rue St. Pierre, Le bureau de la rédaction est situé a` Montréal — 430, rue St. Pierre, Mon- Montréal, Québec, H2Y 2M5. tréal, Québec, H2Y 2M5.

NOTICE AND DISCLAIMER: All rights reserved. No part of this publica- MISE EN GARDE ET AVIS D’EXONERATION´ DE RESPON- tion may be reproduced, stored in a retrieval system, or transmitted, in any SABILITE´ : Tous droits réservés. Il est interdit de reproduire, mémoriser sur form or by any means, electronic, mechanical, photocopying, recording or un système d’extraction de données ou de transmettre, sous quelque forme ou otherwise, without the prior written consent of the publisher (Thomson par quelque moyen que ce soit, electronique´ ou mécanique, photocopie, enre- Reuters Canada, a division of Thomson Reuters Canada Limited). gistrement ou autre, tout ou partie de la présente publication, a` moins d’en avoir préalablement obtenu l’autorisation ecrite´ de l’éditeur, Thomson A licence, however, is hereby given by the publisher: Reuters Canada, une division de Thomson Reuters Canada Limitée. Cependant, l’éditeur concède, par le présent document, une licence :

(a) to a lawyer to make a copy of any part of this publication to give to a a) a` un avocat, pour reproduire quelque partie de cette publication pour judge or other presiding officer or to other parties in making legal submis- remettre a` un juge ou un autre officier-pr´esident ou aux autres parties dans sions in judicial proceedings; une instance judiciaire;

b) a` un juge ou un autre officier-président, pour produire quelque partie de (b) to a judge or other presiding officer to produce any part of this publication cette publication dans une instance judiciaire; ou in judicial proceedings; or c) a` quiconque, pour reproduire quelque partie de cette publication dans le cadre de délibérations parlementaires. (c) to anyone to reproduce any part of this publication for the purposes of parliamentary proceedings. « Instance judiciaire » comprend une instance devant une cour, un tribunal ou une personne ayant l’autorité de décider sur toute chose affectant les droits ou les responsabilitiés d’une personne. “Judicial proceedings” include proceedings before any court, tribunal or person having authority to decide any matter affecting a person’s legal rights or Ni Thomson Reuters Canada ni aucune des autres personnes ayant participé a` liabilities. la réalisation et a` la distribution de la présente publication ne fournissent quelque garantie que ce soit relativement a` l’exactitude ou au caractère actuel Thomson Reuters Canada and all persons involved in the preparation and sale de celle-ci. Il est entendu que la présente publication est offerte sous la ré- of this publication disclaim any warranty as to accuracy or currency of the serve expresse que ni Thomson Reuters Canada, ni le ou les auteurs de cette publication. This publication is provided on the understanding and basis that publication, ni aucune des autres personnes ayant participé a` son elaboration´ none of Thomson Reuters Canada, the author/s or other persons involved in n’assument quelque responsabilité que ce soit relativement a` l’exactitude ou the creation of this publication shall be responsible for the accuracy or cur- au caractère actuel de son contenu ou au résultat de toute action prise sur la rency of the contents, or for the results of any action taken on the basis of the foi de l’information qu’elle renferme, ou ne peuvent etreˆ tenus responsables information contained in this publication, or for any errors or omissions con- de toute erreur qui pourrait s’y etreˆ glissée ou de toute omission. tained herein. La participation d’une personne a` la présente publication ne peut en aucun cas etreˆ considérée comme constituant la formulation, par celle-ci, d’un avis No one involved in this publication is attempting herein to render legal, ac- juridique ou comptable ou de tout autre avis professionnel. Si vous avez counting, or other professional advice. If legal advice or other expert assis- besoin d’un avis juridique ou d’un autre avis professionnel, vous devez tance is required, the services of a competent professional should be sought. retenir les services d’un avocat ou d’un autre professionnel. Les analyses The analysis contained herein should in no way be construed as being either comprises dans les présentes ne doivent etreˆ interprétées d’aucune fa¸con official or unofficial policy of any governmental body. comme etant´ des politiques officielles ou non officielles de quelque organ- isme gouvernemental que ce soit.

8 The paper used in this publication meets the minimum requirements of 8 Le papier utilis´e dans cette publication satisfait aux exigences minimales American National Standard for Information Sciences — Permanence of Pa- de l’American National Standard for Information Sciences — Permanence of per for Printed Library Materials, ANSI Z39.48-1984. Paper for Printed Library Materials, ANSI Z39.48-1984.

ISSN 0706-5655 ISBN 978-0-7798-5832-3 Printed in Canada by Thomson Reuters

THOMSON REUTERS CANADA, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com Contact www.carswell.com/email ESTATES & TRUSTS REPORTS Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit des successions et des fiducies

[Indexed as: Scott v. Vanston] Ryan Montague Scott, Appellant (Defendant) and Deborah Carol Vanston, Respondent (Plaintiff) Saskatchewan Court of Appeal Docket: CACV2530 2016 SKCA 75 Richards C.J.S., Herauf, Whitmore JJ.A. Heard: January 14, 2016 Judgment: June 14, 2016 Estates and trusts –––– Estates — Miscellaneous –––– Domicile of origin — Deceased was born in Alberta, worked in British Columbia, then worked in Sas- katchewan — Deceased listed condo in Saskatchewan for sale and moved into rented accommodation in BC — Later that year, deceased died in BC and dispute arose over his estate — At trial to determine domicile of deceased at date of death, judge determined that deceased had abandoned Saskatchewan but had not yet established BC as new domicile of choice, therefore domicile reverted back to domicile of origin which was Alberta — Deceased’s son and current wife appealed — Appeal allowed in part — Son sought to have domicile as BC whereas wife sought to have domicile as Saskatchewan — Trial judge did not err in finding that deceased had not acquired domicile in British Columbia, nor in finding that deceased had abandoned Saskatchewan as domicile of choice — Trial judge erred in finding that deceased’s domicile of origin was based on location of his birth, as it was to be deceased’s parents’ domicile at time of his birth — Trial judge erred in refusing to re-open trial to hear fresh evidence on issue of domicile of origin, and this decision was error of law as parties were not given opportunity to call evidence on issue going to merits of case and which was ultimately dispositive of case — Matter was remitted to trial judge on specific issue of deceased’s domicile of origin only. Conflict of laws –––– General principles — Domicile — Revival of domicile of origin –––– Deceased was born in Alberta, worked in British Columbia, then worked in Saskatchewan — Deceased listed condo in Saskatchewan for sale and 2 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

moved into rented accommodation in BC — Later that year, deceased died in BC and dispute arose over his estate — At trial to determine domicile of deceased at date of death, judge determined that deceased had abandoned Sas- katchewan but had not yet established BC as new domicile of choice, therefore domicile reverted back to domicile of origin which was Alberta — Deceased’s son and current wife appealed — Appeal allowed in part — Son sought to have domicile as BC whereas wife sought to have domicile as Saskatchewan — Trial judge did not err in finding that deceased had not acquired domicile in British Columbia, nor in finding that deceased had abandoned Saskatchewan as domicile of choice — Trial judge erred in finding that deceased’s domicile of origin was based on location of his birth, as it was to be deceased’s parents’ domicile at time of his birth — Trial judge erred in refusing to re-open trial to hear fresh evidence on issue of domicile of origin, and this decision was error of law as parties were not given opportunity to call evidence on issue going to merits of case and which was ultimately dispositive of case — Matter was remitted to trial judge on specific issue of deceased’s domicile of origin only. Cases considered by Herauf J.A.: Davison v. N.S.G.E.U. (2005), 2005 NSCA 51, 2005 CarswellNS 266, 231 N.S.R. (2d) 245, 733 A.P.R. 245, 46 C.C.E.L. (3d) 1, 35 C.C.L.T. (3d) 73, [2005] N.S.J. No. 110 (N.S. C.A.) — considered Foote Estate, Re (2009), 2009 ABQB 654, 2009 CarswellAlta 1854, 16 Alta. L.R. (5th) 249, 53 E.T.R. (3d) 19, [2010] 7 W.W.R. 63, 475 A.R. 273, [2009] A.J. No. 1250 (Alta. Q.B.) — considered Foote Estate, Re (2011), 2011 ABCA 1, 2011 CarswellAlta 8, (sub nom. David v. Foote Estate) 328 D.L.R. (4th) 695, 40 Alta. L.R. (5th) 153, [2011] 6 W.W.R. 453, 66 E.T.R. (3d) 183, 493 A.R. 354, 502 W.A.C. 354, 4 C.P.C. (7th) 205 (Alta. C.A.) — followed Gunn v. Gunn (1956), 18 W.W.R. 85, 2 D.L.R. (2d) 351, 1956 CarswellSask 10 (Sask. C.A.) — considered Housen v. Nikolaisen (2002), 2002 SCC 33, 2002 CarswellSask 178, 2002 Car- swellSask 179, [2002] S.C.J. No. 31, 286 N.R. 1, 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, [2002] 7 W.W.R. 1, 219 Sask. R. 1, 272 W.A.C. 1, 30 M.P.L.R. (3d) 1, [2002] 2 S.C.R. 235, REJB 2002-29758, 2002 CSC 33 (S.C.C.) — referred to Koval v. Koval (1992), 1992 CarswellAlta 690, [1992] A.J. No. 971 (Alta. C.A.) — considered L. (H.) v. Canada (Attorney General) (2005), 2005 SCC 25, 2005 CarswellSask 268, 2005 CarswellSask 273, [2005] S.C.J. No. 24, 24 Admin. L.R. (4th) 1, 8 C.P.C. (6th) 199, 251 D.L.R. (4th) 604, 333 N.R. 1, [2005] 8 W.W.R. 1, 262 Sask. R. 1, 347 W.A.C. 1, EYB 2005-89538, [2005] 1 S.C.R. 401, 29 C.C.L.T. (3d) 1, REJB 2005-89538, 2005 CSC 25 (S.C.C.) — referred to Lord v. Colvin (1859), 62 E.R. 141, 4 Drew. 366 (Eng. Ch. Div.) — considered Scott v. Vanston Herauf J.A. 3

Osvath-Latkoczy v. Osvath-Latkoczy (1959), [1959] S.C.R. 751, 19 D.L.R. (2d) 495, 1959 CarswellOnt 84 (S.C.C.) — considered Parlee v. McFarlane (1999), 1999 CarswellNB 74, [1999] N.B.J. No. 88, 171 D.L.R. (4th) 292, 23 R.P.R. (3d) 205, 210 N.B.R. (2d) 284, 536 A.P.R. 284 (N.B. C.A.) — considered Rich v. Bromley Estate (2013), 2013 NLCA 24, 2013 CarswellNfld 149, 360 D.L.R. (4th) 51, 1043 A.P.R. 107, 336 Nfld. & P.E.I.R. 107, [2013] N.J. No. 216, 1 C.C.L.T. (4th) 79 (N.L. C.A.) — considered Scott v. Cook (1970), [1970] 2 O.R. 769, 12 D.L.R. (3d) 113, 1970 CarswellOnt 253, [1970] O.J. No. 1487 (Ont. H.C.) — distinguished Trottier v. Rajotte (1939), [1940] S.C.R. 203, [1940] 1 D.L.R. 433, 1939 Car- swellQue 47 (S.C.C.) — followed W. (S.L.) v. W. (W.N.) (2007), 2007 ABCA 282, 2007 CarswellAlta 1220, 43 R.F.L. (6th) 274 (Alta. C.A.) — referred to Wadsworth v. McCord (1886), 12 S.C.R. 466, 1886 CarswellQue 15, [1886] S.C.J. No. 18 (S.C.C.) — followed Wyman v. Vancouver Real Estate Board (1961), [1961] S.C.R. 418, 28 D.L.R. (2d) 85, 1961 CarswellBC 193 (S.C.C.) — considered Zhu v. Li (2007), 2007 BCSC 1467, 2007 CarswellBC 2367, 43 R.F.L. (6th) 376, [2007] B.C.J. No. 2150 (B.C. S.C.) — considered 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (2001), 2001 SCC 59, 2001 CarswellOnt 3357, 2001 CarswellOnt 3358, 11 C.C.E.L. (3d) 1, [2001] 4 C.T.C. 139, 204 D.L.R. (4th) 542, 274 N.R. 366, 17 B.L.R. (3d) 1, 55 O.R. (3d) 782 (headnote only), 150 O.A.C. 12, 12 C.P.C. (5th) 1, 8 C.C.L.T. (3d) 60, [2001] S.C.J. No. 61, [2001] 2 S.C.R. 983, (sub nom. Sagaz Industries Canada Inc. v. 671122 Ontario Ltd.) 2002 C.L.L.C. 210-013, REJB 2001- 25875, 55 O.R. (3d) 782, 2001 CSC 59, 55 O.R. (3d) 782 (note) (S.C.C.) — considered

APPEAL by son and wife of deceased from judgment reported at Vanston v. Scott (2014), 2014 SKQB 64, 2014 CarswellSask 207, 97 E.T.R. (3d) 148, [2014] 7 W.W.R. 796, 439 Sask. R. 236 (Sask. Q.B.), concerning determination of domicile of deceased.

Jordan Hardy, Lynsey Gaudin, for Appellant Valerie Watson, for Respondent

Herauf J.A.: I. Introduction 1 Ryan Montague Scott, the appellant, appeals the decision of the trial judge where he found that Dr. James Montague Scott was not domiciled in British Columbia at the time of his death, but was domiciled in Alberta 4 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

(Dr. Scott’s domicile of origin). Deborah Carol Vanston, the respondent, submits that Dr. Scott was domiciled in Saskatchewan at the time of his death and concurs with the appellant that the trial judge erred in finding that Dr. Scott’s domicile was Alberta. Both parties submit that the trial judge should have exercised his residual authority to avoid an absurdity in this case. Alternatively, both parties request that a new trial be ordered as the trial judge erred in failing to re-open the trial to hear new evidence on the issue of domicile of origin, on which neither party had adduced evidence. 2 After careful consideration and based upon the standard of review, I do not agree with the appellant that the trial judge erred in concluding that Dr. Scott had not acquired a domicile of choice in British Columbia, or with the respondent that Dr. Scott had not abandoned his domicile of choice in Saskatchewan. However, I agree with both parties that the trial judge erred in refusing to re-open the trial as neither party had an opportunity to lead evidence on the issue of Dr. Scott’s domicile of origin, which was the determinative issue. In the result, I would order a new trial on the narrow issue of Dr. Scott’s domicile of origin. In view of this disposition, it is not necessary to determine whether the trial judge should have exercised his residual authority to avoid the absurdity, assuming such authority exists in law, that Dr. Scott’s domicile of origin was actually Alberta.

II. Facts 3 The facts of the case are taken from the decision of the trial judge dated March 3, 2014 (see Vanston v. Scott, 2014 SKQB 64, 439 Sask. R. 236 (Sask. Q.B.)). 4 Dr. James Montague Scott died on September 22, 2012. He was 58 years old at the time of his death. Dr. Scott was born in Calgary, Alberta, but there is no indication that he had any connection to Alberta for the last several decades of his life. 5 Beginning in the 1980s, Dr. Scott was practicing as a radiologist in British Columbia. In 1988, he began working for a group of radiologists in Kelowna. He was, however, in constant conflict with his colleagues at the Kelowna General Hospital and his hospital privileges were rescinded in 1991. Dr. Scott appealed the decision, which was upheld. 6 In 1998, the British Columbia College of Physicians and Surgeons (College) removed Dr. Scott from the Medical Register and placed him Scott v. Vanston Herauf J.A. 5

on the Temporary Register. It appears that the College later placed him on permanent probation. 7 In 1999, Dr. Scott began working in Saskatoon, Saskatchewan, with a group of radiologists. Dr. Scott moved to Saskatoon alone as his first marriage had ended. Dr. Scott had two children from his first marriage: Ryan, the appellant, and Elise, who stayed in Kelowna with their mother. 8 In 2000, Dr. Scott met the respondent while visiting in Kelowna and the two began a seven-year long-distance relationship, eventually mar- rying. During the relationship, Dr. Scott was located in Saskatoon while the respondent remained in Kelowna. The respondent moved to Saska- toon in 2008 to live with Dr. Scott. 9 In March 2012, the group of radiologists Dr. Scott was working with in Saskatoon fired him. Thereafter, he and the respondent decided it would be impossible for him to find work as a radiologist in Saskatchewan. 10 Dr. Scott spent the next six months looking for jobs in Canada. He came close to securing a position in Powell River, British Columbia, but was ultimately not hired. 11 In the summer of 2012, Dr. Scott and the respondent decided to move to Kelowna where they had family and friends. They listed their condo in Saskatoon for sale, cancelled internet and cable services, sold furniture, and put the rest of their belongings in storage in Saskatoon. On August 1, 2012, they moved a large number of their possessions into a residence they had rented in Kelowna. The lease for the residence was three months followed by a month-to-month tenancy thereafter. They also registered their vehicle in British Columbia and the respondent changed her driver’s licence to reflect their Kelowna address. 12 A week after arriving in Kelowna, Dr. Scott and the respondent trav- elled to Mexico and Costa Rica looking for a place where Dr. Scott could work as a radiologist. According to the respondent, they came very close to purchasing a house in Costa Rica before someone else purchased it. 13 Dr. Scott and the respondent returned to Kelowna in mid-September 2012. A week later Dr. Scott died. In January 2013, the respondent moved back into the Saskatoon condo. 14 Dr. Scott executed a will three months before his death in which he left everything to the respondent, as well as $5,000 to each of her two adult daughters. He specified in the will that the appellant and his sister 6 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

were to receive nothing as the appellant had dishonestly taken money from him and the appellant’s sister had disowned him.

III. The Court of Queen’s Bench Decision 15 The trial judge stated that the precise issue before him was where Dr. Scott was domiciled at the time of his death. The appellant submitted that it was British Columbia while the respondent submitted that it was Saskatchewan. 16 The trial judge began by setting out the law of domicile as follows: (a) A person will always have one, and only one, domicile at any point in his or her life. A person begins with a “domicile of origin”, which is generally the place where he or she was born. (b) A domicile of origin can be displaced by the acquisition of a “domicile of choice”, a place where a person has acquired a residence in fact in a new place and has the intention to live there indefinitely. (c) A person abandons a domicile of choice by ceasing to reside there in fact and by ceasing to intend to reside there permanently or indefinitely. (d) A person can lose his or her domicile of choice by abandonment even though a new domicile of choice has not been acquired. 17 The trial judge proceeded to break the issue down into two questions according to the applicable law: (a) Did Dr. Scott abandon Saskatchewan as his domicile of choice in the summer of 2012? (b) If so, did British Columbia become Dr. Scott’s new domicile of choice? 18 On the first question, the trial judge found as fact that Dr. Scott had abandoned Saskatchewan as his domicile of choice when he listed his condo for sale, emptied it, and left for Kelowna in the summer of 2012. The trial judge noted that it is not necessary for a person to sever every thread of attachment to cease to live in a location. 19 The trial judge further found that Dr. Scott did not intend to reside in Saskatchewan indefinitely. Dr. Scott died with an estate that was insufficient to meet his retirement needs. Therefore, it is clear that he needed to find work, which he could not in Saskatchewan. Scott v. Vanston Herauf J.A. 7

20 On the second question, the trial judge found that Dr. Scott did not intend British Columbia to be his domicile of choice. Rather, Kelowna was a stopover until he could find work in Central America. 21 The trial judge found that Dr. Scott had established residence in Brit- ish Columbia but that he did not intend to stay there indefinitely. As in Saskatchewan, Dr. Scott could not find work as a radiologist in British Columbia. Instead he chose to look for positions in Mexico and Costa Rica. 22 The trial judge informed the parties of his findings at the end of the trial, including that without more his conclusion would be that Dr. Scott’s domicile at time of death would revert to his domicile of origin: Alberta. In fairness the trial judge required that each party be given an opportunity to make further representations on this issue. Therefore, he issued a fiat on October 8, 2013, setting out his findings and allowing the parties to make representations on the following questions: (a) If, in these circumstances, the domicile does not revert back to the domicile of origin, what is the test by which Dr. Scott’s domicile at the time of his death ought to be determined? (b) Was sufficient evidence adduced to establish Dr. Scott’s domicile at the time of his death? If not, should the hearing be re-opened? 23 While neither party argued that the trial judge was incorrect on the applicable law, the appellant submitted that (i) it was open to the trial judge to depart from established law as it would be absurd to designate a place from Dr. Scott’s distant past as his domicile and (ii) the trial should be re-opened to hear more evidence related to Dr. Scott’s early years. 24 On the appellant’s first point, the trial judge held that the law of domicile is clear. He conceded that the decision might appear arbitrary or odd but that it was the law and nothing in the circumstances of this case distinguished it from previous authorities that had applied the law for more than 100 years. 25 The trial judge further stated that he was bound by the doctrine of stare decisis to make decisions consistent with prior decisions of higher courts in order to promote consistency, certainty and predictability in the law. 26 On the appellant’s second point, the trial judge cited Zhu v. Li, 2007 BCSC 1467 (B.C. S.C.) at para 20, (2007), 43 R.F.L. (6th) 376 (B.C. S.C.) [Zhu], for the relevant principles on re-opening a trial: 8 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

(a) Prior to the entry of the formal order, a trial judge has a wide discretion to re-open the trial to hear new evidence. (b) This discretion should be exercised sparingly and with the greatest care so as to prevent fraud and abuse of the court’s process. (c) The onus is on the applicant to show, first, that a miscarriage of justice would probably occur if the trial is not re-opened and, second, that the new evidence would probably change the result. (d) The credibility of the proposed fresh evidence is a relevant consideration in deciding whether its admission would probably change the result. 27 The trial judge held that the appellant did not establish grounds for re- opening the trial. The appellant was required to set out with some partic- ularity the specific nature of the evidence that would be adduced but did not do so. As such, the trial judge could not find that relevant, credible evidence would be adduced if the trial was re-opened. 28 In conclusion, the trial judge held that Dr. Scott’s domicile of origin, being Alberta, was his domicile at the time of his death. Therefore, Al- berta law would determine how Dr. Scott’s estate is divided.

IV. Arguments of the Parties A. Appellant 29 The appellant requests the following relief: (a) that the appeal be allowed and the decision of the trial judge quashed and that the Court of Appeal substitute a decision that Dr. Scott’s domicile at time of death was British Columbia for the trial judge’s decision; (b) alternatively, that a new trial be ordered on the issue of Dr. Scott’s domicile of origin; and (c) solicitor-client costs of the appeal from the estate of Dr. Scott. 30 The appellant summarizes the issues on appeal as follows: (a) Did the trial judge err in refusing to hold that Dr. Scott’s domicile at the time of his death was British Columbia? (b) If not, did the trial judge err in refusing to allow the appellant to call additional evidence on the issue of domicile, including on the issue of domicile of origin, after inviting counsel for submissions on this point in his fiat dated October 8th, 2013? Scott v. Vanston Herauf J.A. 9

1. Domicile at time of death in British Columbia 31 The appellant submits that the evidence at trial supports the conclusion that Dr. Scott abandoned his domicile of choice in Saskatchewan and acquired a new domicile of choice in British Columbia. Therefore, the trial judge erred in holding that Dr. Scott’s domicile at his time of death was not British Columbia. 32 The appellant makes two primary submissions in support of its position under this heading. The first is that the trial judge made palpable and overriding errors of fact by ignoring relevant evidence, making findings unsupported by the evidence, overemphasizing and underemphasizing aspects of the evidence, and drawing erroneous conclusions from the evidence. The second is that the trial judge misapprehended the test for acquiring a domicile of choice and erred in applying the legal standard regarding intention to acquire a domicile of choice. 33 In relation to the first submission, the appellant contends that the trial judge erred by failing to consider all of the circumstances before him and took a narrow view of the evidence. The appellant cites Davison v. N.S.G.E.U., 2005 NSCA 51 (N.S. C.A.) at para 63, (2005), 231 N.S.R. (2d) 245 (N.S. C.A.) [Davison], for the proposition that a failure to consider relevant evidence constitutes an error warranting appellate intervention. 34 The appellant points to examples of evidence not considered in the trial judge’s decision: Facebook posts by the respondent demonstrating an intention to live in Kelowna, and changes made by the respondent in vehicle and licence registration reflecting residence in British Columbia. The appellant further submits that the trial judge overemphasized Dr. Scott’s disciplinary record and underemphasized or misapprehended his connections to British Columbia. The appellant references Donald J.M. Brown, Q.C., Civil Appeals, loose-leaf (Rel 2014-2, October 2014) (To- ronto: Carswell, 2009) at para 13:2252 citing Campbell Soup Co. v. In- ter-City Gas Utilities Ltd., (1989) 4 W.W.R. 298, for the proposition that appellate courts need not show deference where a trial judge misappre- hends evidence. The appellant cites Rich v. Bromley Estate, 2013 NLCA 24, 360 D.L.R. (4th) 51 (N.L. C.A.), for the proposition that appellate courts may intervene where a factor is overemphasized or underemphasized by the trial judge. 35 In regard to the second submission, the appellant argues that the trial judge improperly framed the issue of intention to acquire a new domicile as an either/or proposition, namely whether Kelowna was an indefinite 10 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

residence or a stopover to somewhere else. The appellant also contends that the trial judge erred in his interpretation of the meaning of “indefinite.” He argues that by interpreting “indefinite” to mean “permanent,” the trial judge improperly raised the threshold for the test for intention since indefinite only requires an intention to reside at a place for a time that is not fixed rather than permanently (see Foote Estate, Re, 2009 ABQB 654, [2010] 7 W.W.R. 63 (Alta. Q.B.) [Foote Estate QB]).

2. Refusing to re-open the trial 36 The appellant submits that the trial judge erred in refusing to allow the appellant to tender evidence and give full submissions as to the issue of domicile of origin. The appellant references Parlee v. McFarlane (1999), 171 D.L.R. (4th) 292 (N.B. C.A.) [Parlee], for the proposition that it is an error of law for a trial judge to raise an issue of his or her own accord going to the merits and decide the same without allowing counsel to lead evidence on the issue. The appellant argues that after the trial judge issued his fiat, he ultimately decided not to accept further evidence before reviving Dr. Scott’s domicile of origin. 37 The appellant also contends that the record was severely lacking in regard to Dr. Scott’s domicile of origin being Alberta other than that it was his place of birth. In this regard, the appellant submits that place of birth does not itself lead to the determination of an individual’s domicile of origin. As such, more evidence was required. 38 The appellant further argues that the trial judge erred in his application of Zhu as the refusal to allow more evidence in that decision was a refusal to hear fresh evidence on an issue that was already before the court. The present case is distinguishable as the doctrines of domicile of origin and revival were not before the court at trial.

B. Respondent 39 The respondent requests the following relief: (a) that the appeal be allowed and the decision of the trial judge quashed and that the Court of Appeal substitute its decision that Dr. Scott’s domicile at time of death was Saskatchewan for the trial judge’s decision; (b) alternatively, that a new trial be ordered on the issue of Dr. Scott’s domicile of origin; and Scott v. Vanston Herauf J.A. 11

(c) solicitor-client costs of the appeal to be paid from the estate. 40 The respondent addresses the same issues as the appellant, as well as the following issue: Did the trial judge err in concluding that Dr. Scott had abandoned his domicile of choice in Saskatchewan?

1. Domicile at time of death in British Columbia 41 The respondent submits that the trial judge was correct in finding that Dr. Scott did not acquire a domicile in Kelowna. The respondent, however, also submits that the trial judge erred in determining that Dr. Scott had acquired a domicile in Kelowna in fact by failing to take into account important facts. In this respect, the respondent concurs with the appellant that the trial judge’s failure to consider all relevant facts is an error that warrants appellate intervention. The respondent states that the circumstances established that Dr. Scott’s residence in Kelowna was merely temporary and analogous to vacation homes maintained by Dr. Scott throughout the time he resided in Saskatchewan. 42 The respondent contends the trial judge was correct in determining that Dr. Scott had not acquired a domicile in Kelowna by intention. The respondent references Osvath-Latkoczy v. Osvath-Latkoczy, [1959] S.C.R. 751 (S.C.C.) [Osvath], and Wadsworth v. McCord (1886), 12 S.C.R. 466 (S.C.C.) [Wadsworth], in support of the proposition that there must be a clear intention to make the residence permanent and not merely temporary or for some specific purpose. The respondent further relies on Trottier v. Rajotte (1939), [1940] S.C.R. 203 (S.C.C.) [Trottier], for the proposition that the intention necessary requires strict and conclusive proof. 43 The respondent concedes that an intention to remain domiciled in a particular place permanently may be too high a threshold as the appellant submits. The respondent, however, argues that Kelowna was not an indefinite residence for Dr. Scott as the appellant contends. Rather, it was a temporary residence before establishing a new home in Central America. I note in relation to this submission that it appears to be somewhat inconsistent with the respondent’s previous submission that there must be a clear intention to establish permanent residence to acquire a domicile. 44 The respondent also takes issue with the Facebook and vehicle licenc- ing evidence cited by the appellant in relation to intention. The respondent submits that the trial judge determined this evidence was not material as it pertained to the respondent and not Dr. Scott and it was contradicted at trial. 12 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

2. Abandonment of Saskatchewan as domicile at time of death 45 The respondent also contends the trial judge erred in holding that Dr. Scott was not domiciled in Saskatchewan at his time of death. The respondent relies on Davison and submits that the trial judge failed to consider relevant evidence in so holding. The respondent cites the following as relevant facts that the trial judge did not consider in his decision: Dr. Scott maintained his golf club membership, he maintained his Faculty Club membership, he maintained his standing as a medical doctor in Sas- katchewan, he declared Saskatchewan as his residence in his June 2012 will, and he declared Saskatchewan as his residence in his personal tax returns the year before his death. 46 The respondent further submits that the trial judge committed palpable and overriding errors in holding that Dr. Scott intended to abandon Saskatchewan as his domicile of choice. The respondent submits that in order to abandon a domicile of choice, one must leave with the intention never to return to a permanent residence there (see Foote Estate QB at para 40). The respondent argues that Dr. Scott needed to have an intention to continue residence in another place for an indefinite period of time before his domicile ceased to be Saskatchewan. The evidence only established that Dr. Scott intended to leave Saskatchewan once he acquired employment elsewhere. 47 Like the appellant, the respondent argues that the trial judge erred in overemphasizing and underemphasizing vital pieces of evidence and in ignoring or not considering vital pieces of evidence. The respondent further agrees with the appellant that a material misapprehension of evidence constitutes a palpable and overriding error. The respondent, however, submits that such error occurred in the determination that Dr. Scott had abandoned Saskatchewan as his domicile. Specifically, the trial judge’s preoccupation with Dr. Scott’s employment was overemphasized and further resulted in other significant facts being underemphasized.

3. Refusing to re-open the trial 48 In the alternative to the previous submissions, the respondent agrees with the appellant for the same reasons cited by the appellant that a new trial should be ordered as the trial judge erred in refusing to allow the parties to lead evidence as to the issue of Dr. Scott’s domicile of origin. Scott v. Vanston Herauf J.A. 13

V. Standard of Review 49 There are multiple standards of review applicable on this appeal. With respect to findings of fact made by the trial judge, the standard of review is that such findings are not to be reversed unless the trial judge committed a palpable and overriding error (see L. (H.) v. Canada (Attorney General), 2005 SCC 25 (S.C.C.) at paras 53-55 and 110, [2005] 1 S.C.R. 401 (S.C.C.); see also Housen v. Nikolaisen, 2002 SCC 33 (S.C.C.) at para 10, [2002] 2 S.C.R. 235 (S.C.C.) [Housen]). 50 In regard to findings of law made by the trial judge, the standard of review is correctness (see Housen at para 8). In relation to questions of mixed law and fact, where the legal question is extricable from the factual question, the standard of review is correctness. However, where the legal principle is not readily extricable and it is truly a matter of mixed law and fact, then the trial judge’s interpretation of the evidence as a whole should not be overturned absent palpable and overriding error (see Housen at para 36).

VI. Applicable Law 51 The parties raise several issues in relation to the law of domicile, including the acquisition of a domicile of choice, abandonment of a domicile of choice, and revival of a domicile of origin. The parties also raise the issue of re-opening a trial to adduce fresh evidence. Therefore, I will set out the applicable law on domicile and re-opening trials.

A. The law of domicile 1. Domicile of choice 52 Wadsworth is the earliest decision of the Supreme Court on the law of domicile in Canada. In Wadsworth, all five judges authored opinions but Ritchie C.J. largely sets out the opinion of the three-two majority. Chief Justice Ritchie begins by stating that the law of domicile is well-settled in Canada, having previously been established by the courts of England. He then cites numerous authorities for the principles that form the law of domicile. 14 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

53 In regard to acquiring a domicile of choice, Ritchie C.J. sets out the law at 475-76: What will constitute a change of domicile has been frequently enun- ciated in the highest courts. Thus in Lord v. Colvin the Vice Chancel- lor: I would venture to suggest that the definition of an acquired domicile might stand thus: “That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home.” I am disposed to think that the definition thus modified would be found to be in accordance with most, if not all, of the leading decisions on the subject of acquired domicile. But whatever may be the most correct and proper terms in which to frame a definition of domicile, this at least is clear and beyond controversy, that to constitute an acquired domicile two things are requisite, act and intention, factum et animus. To use the language of an eminent jurist, to whose admirable writings I have before referred, “two things must concur to constitute domicile (of course he is speaking of acquired domicile); first, residence; and secondly, the intention of making it the home of the party” There must be the fact and the intent; for, as Pothier has truly observed, a person cannot establish a domicile in a place, except it be animo et facto. ... Sir J. Romilly, the Master of the Rolls: It is quite settled that two things are necessary to constitute a change of domicile; first, the factum of the change of residence; and next, the animus manendi. In other words, in order to effect a change of domicile, the person must have settled in a residence out of his former domicile, whether it be the domicile of origin or an acquired domicile; and he must also have the intention of making that residence his permanent home. 54 Therefore, based on the preceding analysis, a person establishes a domicile of choice by voluntarily choosing to reside in a location, not temporarily or for some special purpose, with the intention of making it Scott v. Vanston Herauf J.A. 15

his permanent home unless and until something unexpected or uncertain induces him to adopt some other permanent home. 55 This same principle has been cited and followed in numerous subsequent cases. In Trottier, Duff C.J. states at 207: The principles which ought, I think, to be kept steadily in view and rigorously applied in this case are, first, that a domicile of origin cannot be lost until a new domicile has been acquired; that the process of the acquisition of a new domicile involves two factors, — the acquisition of residence in fact in a new place and the intention of permanently settling there: of remaining there, that is to say, as Lord Cairns says, “for the rest of his natural life,” in the sense of making that place his principal residence indefinitely. 56 In Osvath, which is a relatively brief decision, the central principle cited is that quoted by Ritchie C.J. in Wadsworth from Lord v. Colvin (1859), 62 E.R. 141 (Eng. Ch. Div.). Further, this Court previously applied the same principle in Gunn v. Gunn (1956), 2 D.L.R. (2d) 351 (Sask. C.A.) at 353, and quoted Duff C.J.’s formulation of it from Trot- tier at 207. 57 Most recently, the Alberta Court of Appeal summarized the law in relation to domicile of choice in Foote Estate, Re, 2011 ABCA 1 (Alta. C.A.) at paras 20-22, [2011] 6 W.W.R. 453 (Alta. C.A.) [Foote Estate CA]: [20] One’s domicile of origin can be displaced by a “domicile of choice”, a place where a person has chosen to live. The classic description of domicile of choice is found in Udny v. Udny (1869), 1866-69 L.R. 1 Sc. 441 (U.K. H.L.): Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. ... There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. [21] Of particular relevance to this appeal is the requirement that the choice to change domicile must be voluntary, not dictated by business, debts or health. Some authorities speak of one’s domicile of choice as a place where one intends to “end one’s days”. That lan- 16 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

guage is unhelpful where, as here, a person with a fatal and fast-moving illness makes a trip shortly before his death for treatment. Deter- mining an intention to change domiciles in such a situation is not a simple matter of saying the deceased intended to “live out his days” in the new location. It could not, in most cases, be described as a voluntary move. [22] The acquisition of a domicile of choice involves two factors: “the acquisition of residence in fact in a new place and the intention of permanently settling there ... in the sense of making that place [one’s] principal residence indefinitely”: Trottier v. Rajotte, [1940] S.C.R. 203 (S.C.C.), at 206, [1940] 1 D.L.R. 433 (S.C.C.) [emphasis added]. 58 The onus of proving that a person has acquired a domicile of choice is on the party alleging the acquisition (see Wadsworth at 470-71). 59 Regarding permanency versus indefiniteness in relation to intention, it was noted in Foote Estate QB that “indefinite” has been interpreted in a number of cases and that different case law has applied different standards but that ultimately it is a factual inquiry (para 46). The high standard that has been applied is that of “living out one’s days” in a jurisdiction (para 47). While the lower standard that has been applied is that of “no fixed intention of leaving” (para 48). I would settle any controversy relating to the proper standard to be applied in determining intention to acquire a domicile of choice by endorsing the test set out in para 22 of Foote Estate CA, namely, “‘... the intention of permanently settling there ... in the sense of making that place [one’s] principal residence indefinitely’”.

2. Abandonment 60 Just as a person can acquire a domicile of choice, he or she may also abandon a domicile of choice. The principle of abandonment is not fully addressed in any of the three Supreme Court decisions on domicile except in reference to the abandonment of a domicile of origin in favour of a domicile of choice. The principle is, however, considered in Foote Estate CA and Foote Estate QB. The Court in Foote Estate CA sets out the principle of abandonment: [25] The following rule is set out in Dicey, Morris and Collins on The Conflict of Laws, 14th ed. (London: Sweet & Maxwell, 2006) at 151: Rule 13 - (1) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to in- Scott v. Vanston Herauf J.A. 17

tend to reside there permanently or indefinitely, and not otherwise. [26] The test for loss of domicile of choice is two-fold: it requires an intention to cease to reside in a place coupled with acts that end one’s residence. It is described in Dicey as follows: A domicile of choice is lost when both the residence and the intention which must exist for its acquisition are given up. It is not lost merely by giving up the residence nor merely by giving up the intention. [Emphasis added] [27] Castel & Walker, in their Canadian Conflict of Laws at s. 4.8, 6th ed. (Markham, Ont.: LexisNexis Butterworths, 2005), describe the process of abandonment of a domicile of choice as “the converse of its acquisition”. They also note the dual nature of the test. To para- phrase, for Mr. Foote to have abandoned his domicile of choice on Norfolk Island, it would be necessary for him to cease to reside there and also to cease to have the intention to return to Norfolk Island as his permanent home. “Absence without the intention of abandonment is of no effect, nor is intention without any actual change of residence”: Castel & Walker at s. 4.8. 61 In Foote Estate QB, Graesser J. cites other authorities to support the above proposition: [51] It is certainly possible to abandon a domicile of choice or origin in favour of a new domicile of choice, but such change involves more than a change in intention and requires some act of abandonment. That requirement to take some tangible step to abandon was identified in Fedeluk v. Fedeluk as relating to the dual prerequisites to adopt a new domicile of choice: [12] It is clear that the abandonment of a domicile of choice requires, as does its acquisition, the combination of factum and intention: See Jones v. Kline, [1938] 3 W.W.R. 65, at 75 (Alta.) and other cases cited at p. 409 of Power on Divorce, 2nd ed. The intention to abandon is insufficient in itself to effect the abandonment so long as the person remains within the domicile or territory: See Zanelli v. Zanelli (1948) 64 TLR 556, 92 Sol J 646. [Emphasis added.] ... 18 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

[53] Howson J. in Jones v. Kline (Jones), at para. 16, stated the rule as: ... in order to lose the domicile of choice and revive the domicile of origin, it is not sufficient for the person to form the intention of leaving the domicile of choice, he must actually leave it with the intention of leaving it permanently. [Emphasis added.] 62 As noted above, a person need not acquire a new domicile of choice for a prior domicile of choice to have been abandoned. Rather, a person may abandon a domicile of choice not having any other domicile but for their domicile of origin (see Foote Estate QB at para 77). Important, as well, is the point that a person need not completely cease to reside in a location to abandon it as his or her domicile (see Foote Estate CA at para 33).

3. Domicile of origin and revival 63 Domicile of origin is of particular importance because no person can ever have more than one domicile but, at the same time, a person must always have a domicile (see Wadsworth at 468). It is often the case then that a person’s domicile of origin becomes relevant where no domicile of choice has been established or it has been abandoned. 64 Justice Graesser in Foote Estate QB summarizes the importance of a domicile of origin at para 24: The domicile of origin, that is the domicile when one is born, has a special status in the common-law, and courts have required special indications that a person has abandoned their domicile of origin. This rule, and its requirements were indicated by the Supreme Court of Canada in Trottier v. Rajotte, at p. 208-209: I think it is important also to emphasize this: the requirement of strict and conclusive proof is one which is natu- rally exacted owing to the very grave consequences entailed by a change of domicile. Lord Buckmaster says in Ramsay v. Liverpool [[1930] A.C. 588, at 590.]: The law upon the matter is settled. A domicile of origin can be changed and in its place a domicile of choice acquired, but the alteration is a serious matter not to be lightly assumed, for it results in a complete change of law in relation to two of the most important facts of Scott v. Vanston Herauf J.A. 19

life, marriage and devolution of property. This is admirably expressed by Lord Curriehill in Donaldson v. McClure [(1857) 20 D. 307, at 321.] in words unnecessary to repeat, which were expressly approved by Lord Halsbury in Marchioness of Huntly v. Gaskell [[1906] A.C. 56, at 66.]. And, to quote once more from Lord Macnaghten’s judgment in Winans v. Attorney General [[1904] A.C. 287, at 291.], he says: “And,” says his Lordship (referring to Lord Westbury in Bell v. Kennedy [(1868) L.R. 1 Sc. App. 321.]) “unless you are able to shew that with perfect clearness and satisfaction to yourselves, it follows that a domicil of origin continues.” So heavy is the burden cast upon those who seek to shew that the domicil of origin has been su- perseded by a domicil of choice! And rightly, I think. A change of domicil is a serious matter serious enough when the competition is between two domicils both within the ambit of one and the same kingdom or country more serious still when one of the two is altogether foreign. The change may involve far reaching consequences in regard to succession and distribution and other things which depend on domicil. [Emphasis added.] See also Bowie v. Liverpool Royal Infirmary, [1930] All E.R. Rep. 127; J. Castel & J. Walker, at p. 4-3; A.V. Dicey, J.C. Morris & L. Collins, at p. 132; and G.C. Cheshire, P.M. North, J.J. Fawcett & J. Carruthers, at p. 171. 65 While a domicile of origin is acquired at birth, it is not a person’s place of birth that determines his or her domicile of origin. A child’s domicile is the domicile of his or her parents when the child is born (see Wadsworth at 469 and 473). Therefore, a person may be born in Sas- katchewan while having a domicile of origin in Alberta if that is the domicile of his or her parents at the time of his or her birth. 66 The doctrine of revival applies when a person has abandoned a domicile of choice but has failed to acquire a new domicile of choice. Simply stated, the doctrine is that where no domicile of choice is established the 20 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

domicile of origin is revived and serves as a person’s domicile (see Wad- sworth at 471 and 474). In essence, the domicile of origin remains latent or in abeyance and is automatically revived where a new domicile of choice is not immediately created (see Foote Estate QB at para 77).

B. Re-opening a trial to permit fresh evidence and submissions on an issue raised by the trial judge 67 In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983 (S.C.C.) [Sagaz], the Supreme Court considered this issue in a case where a party sought to have a trial re-opened to adduce fresh evidence after the trial judge had released his reasons but not entered a formal judgment: [60] This Court provided in Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, at para. 26: It has long been established that, absent an error of law, an appellate court should not interfere with the exercise by a trial judge of his or her discretion in the conduct of a trial. Appellate courts should defer to the trial judge who is in the best position to decide whether, at the expense of finality, fairness dictates that the trial be reopened. See Clayton v. British American Securities Ltd., [1934] 3 W.W.R. 257 (B.C.C.A.), at p. 295: [The trial judge] would of course discourage unwarranted attempts to bring forward new evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant after discovering the effect of a judgment to re-establish a broken-down case with the aid of further proof. [61] Further, the case law dictates that the trial judge must exercise his discretion to reopen the trial “sparingly and with the greatest care” so that “fraud and abuse of the Court’s processes” do not result (see Clayton, supra, at p. 295, cited in Scott, at p. 774). [62] In this case, the trial judge decided not to exercise his discretion to reopen the trial because neither of the two steps of the test in Scott, supra, was met to his satisfaction. First, he found that he could not say that the new evidence, if presented at trial, would probably have changed the result, only that it may have changed the result ... Sec- ond, the trial judge found that Landow’s evidence could have been obtained before trial. ... Scott v. Vanston Herauf J.A. 21

68 The test referred to in the last paragraph above comes from Scott v. Cook (1970), 12 D.L.R. (3d) 113 (Ont. H.C.) [Scott], and its two steps involve asking: (i) would the fresh evidence, if presented at trial, probably have changed the result; and (ii) could the evidence have been obtained before trial by the exercise of reasonable diligence? 69 Further, several courts of appeal in Canada have raised other considerations where the circumstances are such that a party has not been able to lead evidence or make submissions in relation to an issue going to the merits of the case. 70 The Alberta Court of Appeal has stated that it is an error of law for a judge to make an order without giving a party the opportunity to present evidence or to respond to the judge’s concerns (see W. (S.L.) v. W. (W.N.), 2007 ABCA 282 (Alta. C.A.) at para 5, (2007), 43 R.F.L. (6th) 274 (Alta. C.A.)).

VII. Analysis A. Did the trial judge err in concluding that Dr. Scott had not established a domicile of choice in British Columbia? 71 In my view, the trial judge did not err in finding that Dr. Scott had not acquired a domicile in British Columbia. The trial judge did not commit any palpable or overriding errors of fact when interpreting the evidence or drawing inferences. The record demonstrates that there was conflicting evidence in relation to Dr. Scott’s ability and intention to reside and work in British Columbia. The trial judge was cognizant of Dr. Scott’s inability to retire due to lack of resources. The trial judge specifically dealt with the issue of Dr. Scott’s inability to obtain employment in Brit- ish Columbia due to his prior discipline record in British Columbia and his firing in 2012 in Saskatchewan. His ultimate conclusion at para 35 that Kelowna was “nothing more than a stopover - a temporary place ... until he could find a job in Central America” was amply supported by the evidence. 72 Further, the trial judge did not err in his interpretation or application of the test for acquiring a domicile of choice. The trial judge described the test as follows: “[a] domicile of origin can be displaced by the acquisition of a ‘domicile of choice’, a place where a person has acquired a residence in fact in a new place and has the intention to live there indefinitely” (trial decision at para 20). It is, in substance, the test adopted by the Supreme Court in Trottier and the Alberta Court of Appeal in Foote Estate CA. In my view, it is the proper test to be applied when determin- 22 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

ing whether a new domicile of choice has been acquired. In stating that the question was whether Kelowna was an indefinite residence or a stopover, the trial judge did not misapprehend the test for acquiring a domicile of choice.

B. Did the trial judge err in concluding that Dr. Scott had abandoned his previous domicile of choice in Saskatchewan? 73 Once again, in my view, the trial judge did not err in finding that Dr. Scott had abandoned Saskatchewan as his domicile of choice. As with his finding that British Columbia was not acquired by Dr. Scott as a domicile of choice, the trial judge did not commit any palpable or overriding errors in interpreting the evidence before him. Not only was there evidence that Dr. Scott had left Saskatchewan in fact but the respondent’s own evidence discloses that Dr. Scott did not intend to return to Saskatchewan as he was planning to move to Central America and had put his Saskatoon condo up for sale to fund living there. The fact that Dr. Scott maintained some ties to Saskatoon, such as his club memberships, does not preclude this finding by the trial judge as a person need not sever all ties to a location to have abandoned it as his domicile (seeFoote Estate QB at para 77). 74 I would also note on this point that the respondent is actually incorrect in her submission that Dr. Scott needed to have an intention to reside in some other place for an indefinite period of time before he could abandon Saskatchewan as his domicile. The reason the doctrine of revival exists is because a person may abandon a domicile of choice without having an intention to reside in another location, which means that person’s domicile of origin must revive (see Wadsworth at 471 and 474).

C. Did the trial judge err in failing to exercise residual authority to avoid an absurdity? 75 As alluded to in the introduction, both parties raised the issue of whether the revival of Dr. Scott’s domicile of origin (Alberta) would lead to an absurdity and whether the trial judge can exercise residual authority to avoid an absurdity. While the potential for this residual authority has found support from two lower courts in Ontario and Alberta, there appears to be no case where such authority has actually been applied if it exists. That said, since the residual authority has never been considered by a higher court in Canada, it has also not been found to be inconsistent with the law of domicile. In view of the disposition of this appeal, I find Scott v. Vanston Herauf J.A. 23

it unnecessary to make a determination on this issue as it may be a factor in the new trial relating to Dr. Scott’s domicile of origin. 76 The caveat to this point, however, is that the trial judge erred in his analysis of whether Alberta was Dr. Scott’s domicile of origin. Reference can be made to paras 65 and 66 of this judgment. The trial judge stated that a person’s domicile of origin is generally where he or she is born. In concluding that Dr. Scott’s domicile of origin was Alberta because he was born in Calgary, the trial judge erred in law because domicile of origin is not determined by place of birth but by a person’s parents’ domicile at the time of his or her birth (see Wadsworth at 469 and 473). The record only discloses that Dr. Scott was born in Alberta and not whether Alberta was his parents’ domicile at the time of his birth. Therefore, before it can be argued that reviving Dr. Scott’s domicile of origin leads to an absurd result, there would need to be an evidentiary basis for concluding that his domicile of origin was Alberta.

D. Did the trial judge err in refusing to re-open the trial to hear fresh evidence related to Dr. Scott’s domicile of origin? 77 In my opinion, the trial judge erred in refusing to re-open the trial to hear fresh evidence on the issue of domicile of origin. The trial judge, in his fiat dated October 8, 2013, does appear to demonstrate that he was concerned with providing the parties a further opportunity to adduce evidence and make submissions. The trial judge’s final decision to not re- open the trial to hear further evidence, however, is an error of law as the parties were not given an opportunity to call evidence on an issue going to the merits of the case and which was ultimately dispositive of the case. 78 Further, in regard to the potential evidence that may have been adduced by the parties, it may be worth noting that this case is distinguishable in one sense from circumstances where the test from Scott (cited in Sagaz at para 62) was applied. As the parties did not contemplate that Dr. Scott’s domicile of origin would be in issue, it cannot be said that the evidence could have been obtained before trial with reasonable diligence because neither party knew such evidence would be relevant to an issue at trial. In my view, a new trial is warranted on the issue of domicile of origin. 24 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

E. Can this Court order a new trial on the specific issue of domicile of origin? 79 In Donald J.M. Brown, Civil Appeals, loose-leaf (Rel 2016-1, March 2016) vol 2 (Toronto: Canvasback Publishing, 2009) at para 6:2131, the author states the following: An order may be for a complete new trial, either unconditionally or on conditions, or that the new hearing be on the existing record, or the order may limit the number of issues to be reheard and determined, as, for example, where the court affirms a decision as to liability but orders a new trial on the issues of damages. Indeed, the order may be quite specific as to the issues that are to be the subject of the new trial. In that regard, the critical question is whether the issues are sufficiently discrete to permit making the requisite findings without risk of taint or confusion from the findings that were left undisturbed. (Footnotes omitted) 80 On ordering a new trial for a specific issue, the author cites Wyman v. Vancouver Real Estate Board, [1961] S.C.R. 418 (S.C.C.), where the Su- preme Court of Canada upheld the British Columbia Court of Appeal’s decision to order a new trial on the issue of damages alone. 81 The author cites several appellate court decisions in support of the above proposition as well, including Koval v. Koval, [1992] A.J. No. 971 (Alta. C.A.) [Koval]. In Koval, the Alberta Court of Appeal remitted four specific issues to the same trial judge for further consideration and fact findings since most of the trial judge’s reasons for judgment were not appealed and the expense and acrimony involved in a full new trial would have been prohibitive. 82 Therefore, it appears that a new trial can be ordered on the specific issue of domicile of origin.

VIII. Conclusion 83 The matter is remitted to the trial judge for a new trial on the specific issue of Dr. Scott’s domicile of origin only. Both parties are entitled to reasonable solicitor-client costs of the appeal to be paid out of the estate.

Richards C.J.S.:

I concur. Scott v. Vanston Whitmore J.A. 25

Whitmore J.A.:

I concur. Appeal allowed in part. 26 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

Do Canadian doctors have a right to refuse to refer patients to physicians who will assist them to commit suicide? Charles B. Wagner* Aaron Pearl**

The unanimous decision in Carter v. Canada (Attorney General),1 released on February 6, 2015, drastically changed the landscape of Cana- dian law with respect to physician-assisted death (“PAD”). The first paragraph of Carter underscores why the Supreme Court of Canada’s (“SCC”) set aside those provisions in the Criminal Code2 that criminal- ized PAD: It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.3 Carter found that provisions in the Code which prohibiting PAD infringed on s. 7 of the Canadian Charter of Rights and Freedoms,4 and were not justified under s. 1 of the Charter. The SCC called on Parlia- ment to enact “legislation consistent with the constitutional parameters

* Charles B. Wagner is a Certified Specialist in Estates and Trusts Law. He is a partner at Wagner Sidlofsky LLP, a boutique litigation firm located in Toronto, Ontario. ** Aaron Pearl is an associate at Wagner Sidlofsky LLP. 1 2015 SCC 5 (S.C.C.) (“Carter”). 2 R.S.C. 1985, c. C-46 (“Code”) 3 Carter, at para 1. 4 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”) Do Canadian doctors have a right to refuse to refer patients to physicians 27

set out in these reasons.”5 The Court suspended its declaration of invalidity for 12 months, and then granted a further four-month extension.6 In part, in response to the issues raised by such interveners as the Catho- lic Civil Rights League, the Faith and Freedom Alliance, the Protection of Conscience Project, and the Catholic Health Alliance of Canada. The SCC7 stated: In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures. However, we note — as did Beetz J. in addressing the topic of physician participation in abortion in R. v. Morgentaler — that a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief (pp. 95-96). In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgment. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled. (Emphasis added) Nothing in this decision compels physicians to help patients commit suicide. But that’s not the end of the story. The SCC made it clear it is not pre-empting the role of the legislative and regulatory bodies to reconcile the conflict between patients’ right to PAD and certain physicians’ conscience and religious beliefs. If The College of Physicians and Surgeons of Ontario (“College”) have their way then those health care profession- als have reason to be concerned. The College is the body that regulates the practice of medicine in On- tario. On their website they published an article outlining their position

5 Carter, at para 126. 6 Subsequently, due to the new government being voted into office in the 2015 election, the SCC extended the suspension of invalidity an additional 4 months. See Carter v. Canada (Attorney General), 2016 SCC 4 (S.C.C.) at para 7. 7 Carter, at para 132. 28 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

on Professional Obligations and Human Rights. We have excerpted certain portions of the article8 relevant to our discussion: Conscience or Religious Beliefs The Canadian Charter of Rights and Freedoms (the “Charter”) protects the right to freedom of conscience and religion. Although physicians have this freedom under the Charter, the Supreme Court of Canada has determined that no rights are absolute. The right to freedom of conscience and religion can be limited, as necessary, to protect public safety, order, health, morals, or the fundamental rights and freedoms of others. Where physicians choose to limit the health services they provide for reasons of conscience or religion, this may impede access to care in a manner that violates patient rights under the Charter and Code. The courts have determined that there is no hierarchy of rights; all rights are of equal importance. Should a conflict arise, the aim of the courts is to respect the importance of both sets of rights to the extent possible. The balancing of rights must be done in context. In relation to freedom of religion specifically, courts will consider the degree to which the act in question interferes with a sincerely held religious belief. Courts will seek to determine whether the act interferes with the religious belief in a manner that is more than trivial or insubstantial. The less direct the impact on a religious belief, the less likely courts are to find that freedom of religion is infringed. Conduct that would potentially cause harm to and interfere with the rights of others would not automatically be protected. While the Charter entitles physicians to limit the health services they provide for reasons of conscience or religion, this cannot impede, either directly or indirectly, access to these services for existing patients, or those seeking to become patients. Physicians have a fiduciary duty to their patients. The College requires physicians, who choose to limit the health services they provide for reasons of conscience or religion, to do so in a manner that . . . Ensures access to care.. Physicians must provide information about all clinical options that may be available or appropriate to meet

8 For those interested in the full article I refer the reader to the College’s website at http://www.cpso.on.ca/policies-publications/policy/professional-obligations- and-human-rights Do Canadian doctors have a right to refuse to refer patients to physicians 29

patients’ clinical needs or concerns. Physicians must not withhold information about the existence of any procedure or treatment because it conflicts with their conscience or religious beliefs. Where physicians are unwilling to provide certain elements of care for reasons of conscience or religion, an effective referral to another health-care provider must be provided to the patient. An effective referral means a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency. The referral must be made in a timely manner to allow patients to access care. Patients must not be exposed to adverse clinical outcomes due to a delayed referral. Physicians must not impede access to care for existing patients, or those seeking to become patients. The College expects physicians to proactively maintain an effective referral plan for the frequently requested services they are unwilling to provide. In summary, the Carter decision specifically does not impose any obligation on doctors to participate in any way in PAD and leaves the balancing of patients’ and doctors’ rights to first be addressed by the legislature and regulating bodies. In its newly introduced legislation, Bill C-14, Prime Minister Trudeau’s Liberal government chose not to address the issue. The College wants to impose an obligation on physicians to make referrals to patients seeking PAD. The rationale? In their view, making a referral of PAD is sufficiently trivial or insubstantial that it has a less direct impact on a religious belief. In this article, the authors are specifically not addressing any metaphysi- cal or religious analysis. But what is being attempted is to review the position taken by the College and assess whether imposing the obligation to refer patients out for PAD violates certain doctors’ freedom of conscience and religion which are guaranteed in the Charter.

Background

i) — Criminal Code The Code provisions challenged and declared invalid in Carter were ss. 14 and 241(b). Section 14 of the Code states: No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given. 30 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

Section 241(b) of the Code states: Every one who (a) [. . .], or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

ii) — Rodriguez v. British Columbia (Attorney General)9 In 1992, the validity of s. 241(b) of the Code was challenged by Sue Rodriguez, a woman with amyotrophic lateral sclerosis (ALS). Ms. Rod- riguez was seeking to avoid the future stress and loss of dignity caused by the prospect of the death which usually results from ALS. In her application for an order declaring s. 241(b) of the Code invalid, Ms. Rodri- guez relied on ss. 7, 12 and 15(1) of the Charter.10 Ms. Rodriguez’s application was dismissed,11 as was her appeal.12 The SCC, in a five-to-four decision, also dismissed Ms. Rodriguez’s appeal. The majority of the SCC held that although s. 241(b) of the Code deprived Ms. Rodriguez of her security of the person protected under s. 7 of the Charter, any resulting deprivation was not contrary to the principles of fundamental justice. Despite differing views on the issue of PAD, it was found that there is consensus in Canadian society that human life

9 1993 CarswellBC 1267 (S.C.C.) (“Rodriguez”). 10 Section 7 of the Charter states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 12 of the Charter states: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” Section 15(1) of the Charter states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” 11 Rodriguez v. British Columbia (Attorney General), 1992 CarswellBC 2292 (B.C. S.C.). 12 Rodriguez v. British Columbia (Attorney General), 1993 CarswellBC 20 (B.C. C.A.). Do Canadian doctors have a right to refuse to refer patients to physicians 31 must be respected and that the prohibition against PAD upholds this principle and protects vulnerable individuals.13 The majority of the SCC in Rodriguez also assumed that Ms. Rodri- guez’s equality rights under s. 15(1) of the Charter had been infringed, but found that this infringement was justified under s. 1 of the Charter. Justice Sopinka, writing for the majority, wrote that s. 241(b) of the Code protects all individuals against the control of others, and any exception to the blanket protection would create an inequality.14 iii) — Carter v. Canada (Attorney General) In Carter, the SCC revisited the PAD issue, now brought to the court by Ms. Gloria Taylor. Like Ms. Rodriguez, Ms. Taylor was diagnosed with ALS, which causes progressive muscle weakness. Ms. Taylor had brought her claim before the British Columbia Supreme Court to challenge the constitutionality of the Code provisions prohibiting PAD. In 2012, Justice Smith of the British Columbia Supreme Court ruled that the Code provisions prohibiting PAD contravened the constitutional rights that ought to be afforded to the seriously ill.15 Justice Smith determined that a legal regime that is well-designed and administered properly and permissively could protect those vulnerable people, including those seeking a PAD, from any potential errors and abuses which the overly broad present legal regime seeks to protect against. If this new legal regime were put in place, there would be no need for the criminal sanctions that at present attach to PAD. Justice Smith gave Parliament one year to rewrite the laws in the Code. The federal government thereafter appealed Justice Smith’s decision.16 In its appeal, the federal government relied on the SCC decision in Rod- riguez for the proposition that only the SCC has the right to consider whether the criminal sanctions related to PAD were constitutional. The Court of Appeal agreed and the trial decision was overturned. The SCC then granted the plaintiffs leave to appeal.

13 Rodriguez, at paras 58-59. 14 Ibid, at para 74. 15 Carter v. Canada (Attorney General), 2012 BCSC 886 (B.C. S.C.). 16 Carter v. Canada (Attorney General), 2013 BCCA 435 (B.C. C.A.). 32 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

The question before the SCC this time was: “Whether the criminal prohibition that puts a person to this choice [of taking their own life prematurely, or suffering until death from natural causes] violates her Charter rights to life, liberty and security of the person [s. 7] and to equal treatment by and under the law [s. 15].”17 The SCC determined that the current criminal legislation forces individuals to make a choice between either intolerable suffering or a premature natural death. By decriminalizing PAD, the SCC rejected the notion that the right to life requires an absolute prohibition on PAD. The SCC stated that it does not agree that “individuals cannot “waive” their right to life”, and continued that, “This would create a “duty to live”, rather than a “right to life”, and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment.”18 The SCC found that the prohibition of PAD violated the rights enshrined in s. 7 in two ways: a. The current laws force some people to prematurely take their own lives, in anticipation of the suffering that they will later face; and b. The prohibitions in the Code interfere with one’s ability to make their own decisions regarding their body and medical care, which is not in accordance with principles of fundamental justice. The Court’s reasoning therefore necessitated a finding that the violations contained in the Code were overbroad, in that it catches those vulnerable people the law is seeking to protect, as well as those who have a fully- informed and competent desire to terminate their lives. In determining that PAD ought to be decriminalized, the SCC set out a declaration that ss. 14 and 241(b) of the Code are void insofar as they prohibit PAD for: 1. A competent adult; 2. who clearly consents to the termination of his/her life; and 3. has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to that person in his/her condition.19

17 Carter, at para 2. 18 Carter, at para 63. 19 Carter, at para 127. Do Canadian doctors have a right to refuse to refer patients to physicians 33

Conscientious Objector Health Practitioners i) — The Joint Committee’s Recommendation When the SCC declared ss. 14 and 241(b) of the Code void for infringing the claimants’ rights under s. 7 of the Charter, the Court stated that it was for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.”20 Parliament struck a committee to make recommendations that would “reconcile the rights of patients and physicians in accordance with Carter”. On December 11, 2015, Parliament passed motions to establish a joint committee (“Joint Committee”), for the purpose of making recommendations on the framework of federal legislation regarding PAD.21 The Re- port of the Joint Committee, entitled “Medical Assistance in Dying: A Patient-Centred Approach” was released in February 2016 (“Joint Com- mittee Report”). The Report makes 21 recommendations for a legislative response from Parliament to Carter. Part of the Joint Committee’s mandate was to make recommendations that would “reconcile the rights of patients and physicians in accordance with Carter”. One of those recommendations were as follows: That the Government of Canada work with the provinces and territories and their medical regulatory bodies to establish a process that respects a health care practitioner’s freedom of conscience while at the same time respecting the needs of a patient who seeks medical assistance in dying. At a minimum, the objecting practitioner must provide an effective referral for the patient (Emphasis added).22 The Joint Committee heard evidence from numerous individuals who ob- jected to this conclusion. For example, Imam Sikander Hashmi, a spokesperson for the Canadian Council of Imams, stated the following: We would say that there should definitely be protection for individual physicians who want to avoid any type of participation in this

20 Carter, 2015, para. 126. 21 Medical Assistance in Dying: A Patient-Centred Approach, Report of the Special Joint Committee on Physician-Assisted Dying, Hon. Kelvin Kenneth Ogilvie and Robert Oliphant, February 2016, 42nd Parliament, 1st Session (the “Report”), at pg 2. 22 Report, at pg 26. 34 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

type of procedure. I would also extend that to health care facilities that are faith-based to ensure that . . .. Again, it’s a balance of rights. Those who want to stay away to whatever degree they feel is important for them, their faith, and their conscience, should have the ability to do so.23 Speaking on behalf of the Coalition for HealthCARE and Conscience, His Eminence Thomas Cardinal Collins echoed the concerns for the rights and values of health care practitioners: [. . .] it is clear that reasonable people, with or without religious faith, can have a well-founded moral conviction in their conscience that prevents them from becoming engaged in any way in the provision of assisted suicide and euthanasia. They deserve to be respected. It is essential that the government ensure that effective conscience protection be given to health care providers, both institutions and individuals. They should not be forced to perform actions that go against their conscience or to refer the action to others, since that is the moral equivalent of participating in the act itself. It’s simply not right or just to say, “You do not have to do what is against your conscience, but you have to be sure it happens”24 Despite the pleadings for respect and protection of health practitioners’ rights, the Joint Committee recommended to Parliament a regime of mandatory referrals.

ii) — What does Bill C-14 say with Respect to Health Practitioners’ Rights? On April 14, 2016, Prime Minister Trudeau’s government introduced Bill C-14,25 a proposed legislative response to the Carter decision. Bill

23 Special Joint Committee on Physician-Assisted Dying, Evidence, February 3, 2016, 1905. 24 Special Joint Committee on Physician-Assisted Dying, Evidence, February 3, 2016, 1705. 25 Bill C-14: An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying). 1st Reading, April 14, 2016, 42nd Parliament, 1st Session, 2015-2016. Available: http://www.parl.gc.ca/ HousePublications/Publication.aspx?Mode=1&DocId=8183660&Language=E Do Canadian doctors have a right to refuse to refer patients to physicians 35

C-14 received Royal Assent on June 17, 2016.26 Bill C-14 does not adopt many of the recommendations made in the Joint Committee’s Re- port. For instance the draft legislation does not include: • That individuals not be excluded from eligibility for medical assistance in dying based on the fact that they have a psychiatric condition; • That the Government of Canada implement a second stage of the legislative process allowing competent mature minors to request PAD within three years; • That the permission to use advance requests for medical assistance in dying be allowed any time after one is diagnosed with a condition that is reasonably likely to cause loss of competence or after a diagnosis of a grievous or irremediable condition but before the suffering becomes intolerable; • That the Government of Canada work with the provinces and territories and their medical regulatory bodies to establish a process that respects a health care practitioner’s freedom of conscience while at the same time respecting the needs of a patient who seeks medical assistance in dying. At a minimum, the objecting practitioner must provide an effective referral for the patient. These conditions were each recommended in the Joint Committee Report. There are no specific provisions stating what steps an objecting health practitioner should take if he or she receives a request for PAD from a patient. On the one hand, the legislation does not require health practitioners to make a referral, thereby forcing them to participate in a practice with which they object. On the other hand, it is concerning that there are no provisions providing health practitioners with express religious and conscientious protections. The government provided some clarification on this issue on the Govern- ment of Canada, Department of Justice website. The government released a “Questions and Answers” section online concurrently with the draft Bill C-14. With respect to the question of whether health care prov-

26 An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), Statutes of Canada: 2016, c. 3. 36 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

iders would be able to decline PAD requested by a patient, the government answered as follows: There is nothing in the proposed legislation that would compel a health care provider to provide medical assistance in dying or refer a patient to another medical practitioner. Balancing the rights of medical providers and those of patients is generally a matter of provincial and territorial responsibility. However, the federal government has committed to work with provinces and territories to support access to medical assistance in dying, while respecting the personal convictions of health care providers.27 The website then features the question of how patients can access PAD if their health care practitioner objects to providing it. This answer appears to suggest that the government may be prepared to infringe on the freedom of conscience of health care practitioners: The Supreme Court of Canada was clear that nothing in its reasons would compel physicians to provide medical assistance in dying and there is nothing that compels physicians to provide medical assistance in dying in the proposed legislation. However, physicians and nurse practitioners exercising their conscience rights may constitute a barrier to access for those who are seeking medical assistance in dying. The government will work with provinces and territories to ex- plore options to facilitate access and care coordination, while recog- nizing the personal convictions of health care providers.28 Following Royal Assent of Bill C-14, the Government of Canada published further commentary on its website addressing this issue. The website states as follows: Not all health care providers will be comfortable with giving or helping to provide medical assistance in dying. The practice may not be consistent with a provider’s beliefs and values. The legislation does not force any person to provide or help to provide medical assistance in dying. However, this could create problems for patients who want to access medical assistance in dying.

27 Government of Canada, Department of Justice, Medical Assistance in Dying: Questions and Answers, Available: http://www.justice.gc.ca/eng/cj-jp/ad-am/ faq.html. 28 Ibid. Do Canadian doctors have a right to refuse to refer patients to physicians 37

The federal government will work with provinces and territories to develop a national coordination system for end-of-life care services. The system would guide people to information about where they can find help.29 The suggestion that health practitioners exercising their rights may constitute a barrier to access to medical services raises concern for those that may be affected. The current legislative limbo leaves many health practitioners in the dark on the regulations that may be developed by Canada or by the provinces and territories. iii) — Freedom of Religion and Conscience in Canada Pursuant to s. 2(a) of the Charter, everyone has the fundamental freedom of conscience and religion. The seminal case regarding s. 2(a) of the Charter is R. v. Big M Drug Mart Ltd.30 At para. 95 of Big M Drug Mart, in discussing the meaning of a freedom in the Charter, the majority of the SCC stated, “freedom can primarily be characterized by the absence of coercion or constraint.”31 If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free.”32 If health practitioners are required to make a referral for a patient who is seeking PAD, the Parliament would be forcing those doctors to participate in a course of action that may be contrary to their beliefs or their conscience. This may constitute an infringement of s. 2(a) of the Charter. In the SCC decision R. v. Morgentaler,33 the seminal case on abortion in Canada, the SCC discusses Canadian freedom of conscience in relation to abortion. Writing for the majority, Justice Beetz stated, “Given that the decision to appoint a [abortion] committee is in part one of conscience, and in some cases one which affects religious beliefs, a law cannot force

29 Government of Canada, Medical assistance in dying commentary. Available: http://healthycanadians.gc.ca/health-system-systeme-sante/services/palliative- pallatifs/medical-assistance-dying-aide-medicale-mourir-eng.php 30 [1985] 1 S.C.R. 295, 1985 CarswellAlta 316 (S.C.C.) [“Big M Drug Mart”]. 31 Ibid, at para 95. 32 Big M Drug Mart, at para 95. 33 [1988] 1 S.C.R. 30 (S.C.C.) [“Morgentaler”]. 38 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th) a [hospital] board to appoint a [abortion] committee, any more than it could force a physician to perform an abortion.”34 This is authority for the proposition that Parliament is precluded from forcing physicians to provide procedures to which they object based on their freedom of religion or freedom of conscience. iv) — The Medical Community’s Position The Canadian Medical Association (“CMA”)35 has demonstrated that they stand for the protection of the freedom of conscience and religion for health practitioners in Canada. Prior to the release of the Joint Com- mittee’s Report, on January 21, 2016 the CMA released its own set of recommendations for a Canadian approach to PAD.36 These recommendations included a section on a doctor’s moral opposition to PAD. The recommendation put forth by the CMA regarding conscientious objection by a physician is: Physicians are not obligated to fulfill requests for assisted dying. This means that physicians who choose not to provide or participate in assisted dying are not required to provide it or to participate in it or to refer the patient to a physician or a medical administrator who will provide assisted dying to the patient. There should be no discrimination against a physician who chooses not to provide or participate in assisted dying.37 The CMA also carried out a dialogue with its members in order to get positions directly from doctors on the issue. The CMA released a summary report of this member dialogue, which shows that the views of physician-members differed greatly. The summary report specifically explored the issue of mandatory referrals since this had been recommended by the Joint Committee. One viewpoint expressed by a doctor which is

34 Morgentaler at p. 112. 35 Information on the CMA can be found online at: https://www.cma.ca/En/ Pages/about-cma.aspx 36 Principles-based Recommendations for a Canadian Approach to Assisted Dy- ing, Canadian Medical Association. Available: https://www.cma.ca/Assets/assets-library/document/en/advocacy/cma-framework_assisted-dying_final- jan2016.pdf 37 Ibid, at s. 5.2. Do Canadian doctors have a right to refuse to refer patients to physicians 39 included in the Summary Report emphasizes that a referral can often constitute participation in the view of a health practitioner: When a doctor makes a referral, she puts her name behind the request and, in effect, indicates that she believes a patient would benefit overall from the service being sought . . . making a referral is a deliberate action undertaken by a doctor that has intended consequences for the patient. Although the referring doctor does not directly provide the requested service to the patient, in making a referral her actions are closely linked to and play a causal role in what ultimately happens . . . the principle that one shares responsibility for an action performed by another person if one facilitates or arranges that action is engrained in our society’s norms and legal code. Carrying out an activity oneself or arranging for someone else to do it are morally equivalent. Therefore, requiring doctors to refer for services to which they morally object coerces them to become active participants in acts that they believe to be wrong and, hence, to grossly violate their consciences. The Coalition for HealthCARE and Conscience (“CHCC”), which repre- sents over 5,000 physicians across Canada, has also expressed concern for doctor’s rights. The CHCC released a statement following the introduction of Bill C-14 on April 14, 2016, calling for strong protection for conscientious objectors. Included in this statement is the observation that no other foreign jurisdiction in the world that has legalized euthanasia/assisted suicide forces health care workers to act against their conscience, mission, or values.38 The statement also points out that a Nanos Research poll found that 75% of Canadians agree that doctors should be able to opt out of offering assisted dying. Many health practitioner Christian and Catholic groups have also been outspoken about the rights of health practitioners. The Christian Medical and Dental Society of Canada, the Catholic Health Alliance of Canada and the Catholic Health Sponsors of Ontario have all called for legislative protections for conscientious objectors. On the other hand, the College of Physicians and Surgeons of Ontario (“CPSO”) has shown support for a mandatory referral system. The CPSO

38 “Conscience protection still at risk with assisted death legislation: Coalition for HealthCARE and Conscience”, News Release, Ottawa, Ontario (April 14, 2016). 40 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th) released its “Interim Guidance on Physician-Assisted Death”39 in Janu- ary 2016. With respect to conscientious objection, the Interim Guide provides that where a physician declines to provide PAD, an effective referral must be provided. Like the Joint Committee’s recommendation, this shows a disregard for the Charter rights of health practitioners. As further discussed below, it is the position of the authors that the rights of patients can be adequately protected without infringing the rights of health practitioners. v) — Is it Legal to Force Conscientious Objectors to Participate in PAD? If Parliament is to reconcile the rights of health practitioners and patients, it is important to consider whether it is necessary to force conscientious objectors to participate in PAD. In the United States, the two states that have had PAD regimes in place for the longest period of time are Oregon and Washington. By extrapolating the amount of PAD cases in these states, it can be estimated how widespread PAD may be in Canada in the coming years. A look at the statistics demonstrates that there is no reason that it is necessary to force conscientious objector health practitioners to participate in a PAD regime. The state of Oregon passed the Death with Dignity Act40 in 1994. This statute legalized PAD with certain restrictions, making it the first state in the U.S. to permit certain terminally ill patients to choose the time of their death. The Oregon Public Health Division is required to release an annual report which includes statistics on PAD in the state from the year. According to Oregon’s annual report for 2014, 155 individuals received prescriptions for lethal doses of medications in 2014 as a result of Ore- gon’s Death with Dignity Act. These numbers have also grown incre- mentally almost every year. In 1998, 4 years after Oregon legalized PAD, 24 individuals received lethal prescriptions.

39 Interim Guidance on Physician-Assisted Death, The College of Physicians and Surgeons of Ontario Policy Number 1–16. (Approved by council January 2016). 40 ORS 127.800-995. Do Canadian doctors have a right to refuse to refer patients to physicians 41

The state of Washington’s Death with Dignity Act41 came into effect on March 5, 2009. Similar to Oregon, the Washington Department of Health collects information from healthcare providers and produces an annual statistical report. According to the Washington State Department of Health 2014 Death with Dignity Act Report Executive Summary,42 176 individuals are known to have received lethal medication in 2014. According to the U.S. government census data, in 2014 Oregon had a population of 3,971,202 people, and Washington had a population 7,063,166.43 According to Statistics Canada,44 the population of Canada as of 2015 is 35,851,800 people. By extrapolating the Oregon PAD statistics compared with its population, Canada’s population may be receiving approximately 1,399 requests for PAD after 20 years of legalization, at which time the Canadian population will have grown. By extrapolating Washington’s 2014 numbers, which come five years after the legalization of PAD, Canada can expect approximately 893 requests for PAD per year in the nearer future. According to CMA Canadian physician statistics, as of January 2016 there were 80,544 active physicians in Canada.45 With the amount of physicians in the country and the projected amounts of PAD requests based on extrapolated U.S. data, there is no reason why doctors and other health practitioners who object to PAD should be forced against their will to participate, either by way of a referral or otherwise. There are no statistics at this time showing how many doctors and health practitioners in Canada will be willing to participate in PAD, but it is expected that a great deal of physicians will be willing to do so. Health practitioners’ freedom of conscience and religion should not be violated when there is enough doctors to provide the service in question.

41 RCW 70.245. 42 Washington State Department of Health 2014 Death with Dignity Act Report Executive Summary, Available: http://www.doh.wa.gov/portals/1/Documents/ Pubs/422-109-DeathWithDignityAct2014.pdf 43 Annual Estimates of the Resident Population: April 1, 2010 to July 1, 2015, U.S. Census Bureau, Population Division (December 2015). 44 Government of Canada, Statistics Canada, Table 051-0001. Available: http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo02a-eng.htm. 45 “Number of Physicians by Province/Territory and Specialty, Canada, 2016”, CMA Masterfile, January 2016, Canadian Medical Association. 42 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th) vi) — What is a Solution to Reconcile the Rights of Health Practitioners and Patients? The SCC stated that the Charter rights of patients and physicians will need to be reconciled. The Joint Committee’s recommendation does not reflect reconciliation of these rights. Bill C-14 leaves the door open for provinces and territories to force health practitioners to make referrals against their conscience. A system is needed which allows patients to access PAD and that allows conscientious objectors to refrain from participation. The CMA has already proposed an alternative to a mandatory referral system. Dr. Jeffrey Blackmer, an executive director at CMA, has discussed the creation of a central mechanism to facilitate access to PAD.46 Conscientious objecting health practitioners could then refer patients to this service but not directly to a doctor. The CHCC has also suggested the creation of a third-party agency that would give patients direct access to an assessment advisor who can provide resources and support and connect patients with health care practitioners and facilities that provide PAD.47 The Quebec legislation has also set out a system which does not force health practitioners to make a referral. Pursuant to An Act Respecting End-of-Life Care (the “ARELC”),48 which came into force in Quebec on December 10, 2015, a physician who receives a request for PAD and who does not perform PAD must notify the executive director of the in- stitution where they practice, or the executive director of the local authority serving the territory if the physician practices privately. The executive director must then take the necessary steps to find, as soon as possible, another physician willing to deal with the request.49 This takes the referral obligation out of the hands of individual health practitioners

46 Shelby Ubelacker, “Canadian Medical Association Disappointed With Latest Assisted Suicide Recommendation”, The Canadian Press. February 26, 2016. Available: http://www.huffingtonpost.ca/2016/02/26/assisted-suicide-canada_n_ 9331552.html 47 “Canadians Shouldn’t Have to Compromise Their Conscience”, Coalition for HealthCARE and Conscience. Available: http://www.canadiansforconscience. ca/the_issues 48 RSQ c S-32.0001. 49 ARELC, s. 31. Do Canadian doctors have a right to refuse to refer patients to physicians 43 and therefore does not force them to act against their conscience or religious beliefs. While the federal government should have protected the freedoms of health practitioners directly in its legislation, the systems discussed above provide provinces and territories with options aside from mandatory referral mandates.

Concluding Remarks While the SCC declared that PAD will be legalized in Canada in the Carter decision, the SCC was also clear that its decision did not impose on physicians and other health practitioners an obligation to participate. Instead, it called upon the legislature and regulatory bodies to balance health practitioners’ freedom of religion and patients’ rights to PAD. Given the silence of the legislation on the issue of referrals, it now falls upon the regulatory bodies. It remains to be seen if the regulatory bodies will endeavour to force physicians to make referrals for PAD. In our view, imposing an obligation to make such a referral contravenes doctors’ religious freedoms in a manner that is not demonstrably justifiable in a free and democratic society. We base this view on the Supreme Court of Canada decision of Syndicat Northcrest c. Amselem.50 In the Syndicat case there were Orthodox Jews living in Montreal who wanted to build a small hut outside their homes (“Succah”) to celebrate the holiday of Sukkot. The city by-laws forbade setting up these units on the balconies of the condominiums in question which, inter alia, prohibited decorations, alterations and constructions on the balconies. Those who opposed the Sukkahs asked for a permanent injunction prohibiting the Orthodox Jews from setting up succahs. At trial and at the court of appeal the application for the injunction was granted. The Supreme Court of Canada allowed the appeal of the Orthodox Jews and found that the principle that freedom of religion must be exercised within reasonable limits and with respect for the rights of others, subject to such limitations as are necessary to protect public safety, order and health and the fundamental rights and freedoms of others.

50 2004 SCC 47, [2004] 2 S.C.R. 551 (S.C.C.) (“Syndicat”). 44 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

We quote several paras. of Syndicat case which we hope will be instructive: 57 Once an individual has shown that his or her religious freedom is triggered . . ., a court must then ascertain whether there has been enough of an interference with the exercise of the implicated right so as to constitute an infringement of freedom of religion under the Quebec (or the Canadian) Charter. 58 More particularly, as Wilson J. stated in Jones, supra, writing in dissent, at pp. 313-14: Section 2(a) does not require the legislature to refrain from imposing any burdens on the practice of religion. Legislative or administrative action whose effect on religion is trivial or insubstantial is not, in my view, a breach of freedom of religion. [Emphasis added.] Section 2(a) of the Canadian Charter prohibits only burdens or impo- sitions on religious practice that are non-trivial. This position was confirmed and adopted by Dickson C.J. for the majority in R. v. Videoflicks Ltd., supra, at p. 759: All coercive burdens on the exercise of religious beliefs are potentially within the ambit of s. 2(a). This does not mean, however, that every burden on religious practices is offensive to the constitutional guarantee of freedom of religion . . .. Section 2(a) does not require the legislatures to eliminate every minuscule state-imposed cost associated with the practice of religion. Otherwise the Charter would offer protection from innocu- ous secular legislation such as a taxation act that imposed a modest sales tax extending to all products, including those used in the course of religious worship. In my opinion, it is unnecessary to turn to s. 1 in order to justify legislation of that sort . . .. The Constitution shel- ters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened. For a state-imposed cost or burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice. In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial: see, on this point, Jones, per, Wilson J. at p. 314. [Emphasis added.] 59 It consequently suffices that a claimant show that the impugned contractual or legislative provision (or conduct) interferes with his or her ability to act in accordance with his or her religious beliefs in a Do Canadian doctors have a right to refuse to refer patients to physicians 45

manner that is more than trivial or insubstantial. The question then becomes: what does this mean? 60 At this stage, as a general matter, one can do no more than say that the context of each case must be examined to ascertain whether the interference is more than trivial or insubstantial. But it is important to observe what examining that context involves. Arguably, compelling doctors to make PAD referrals places a coercive burden on the exercise of their religious beliefs bringing them within the ambit of s. 2(a) of the Charter. To anyone who believes in the sanctity of life, the state’s compelling participation of a physician in the ending of that life triggers a unwarranted substantive interference in that doctor’s freedom of conscience and religion. There are those health care profes- sionals who find PAD to be the antithesis of their mandate and view any participation in the process, whether direct or indirect, to be repugnant. These doctors would argue that they entered the profession to save lives — not end them. They would argue that compelling them to make a PAD referral constitutes interference that is certainly not trivial and not insubstantial. Furthermore, with the relatively small number of instances where patients want PAD and having in mind the large number of physicians willing to participate in that process there seems to be no demonstrably justifiable reason why the legislature or regulatory bodies need to compel reluctant doctors to participate. 46 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

[Indexed as: Dunn Estate v. TD Canada Trust] Catherine Dunn, Catherine Jean Crowe (N´ee Catherine Dunn, Jr.), Kenneth Terry Bullman, Margaret Elizabeth Beresford, Sandra Elizabeth Dunn, Christopher Robert Dunn, Carolyn Suzanne Stuart, Gregory Lewis Dunn and Sandra Elizabeth Dunn, Christopher Robert Dunn and Gregory Lewis Dunn as executors for the Estate of Robert Lewis Dunn, Kenneth Bullman and Margaret Elizabeth Beresford as executors for the Estate of Mary Bullman (Plaintiffs) and TD Canada Trust, The Canada Trust Company, TD Waterhouse, TD Waterhouse Private Client Services (Defendants) British Columbia Supreme Court Docket: Vancouver S-096983 2016 BCSC 270 Betton J. Heard: December 10-11, 2015 Judgment: February 19, 2016* Estates and trusts –––– Estates — Construction of wills — Fundamental issues — Testator’s intentions given effect — Determination of intent — Wording of will –––– Testator’s will included direction to retain in form in which they were at time of death all investments in stocks and bonds — Parties sought judicial interpretation of clause in will — Trustee was required to retain testator’s bonds and stocks in specie for lifetime of his daughters, subject to encroachment if balance of capital of estate was otherwise exhausted — If it were so that testator’s intention was to allow but not obligate trustee to retain bonds and stocks, there would have been no reason to specifically reference bonds and stocks — Testator did not know at time of execution of will or codicil whether he would, in fact, have bonds or stocks at date of his death — Testator began his expression of his intentions with direction to retain bonds and stocks that might exist at that time and proceeded to articulate what was to happen in terms of conversion of balance of estate thereafter — Use of phrase “to retain” was more indicative of duty than power.

* A corrigendum issued by the court on March 7, 2016 has been incorporated herein. Dunn Estate v. TD Canada Trust Betton J. 47

Cases considered by Betton J.: Ali Estate, Re (2014), 2014 BCSC 340, 2014 CarswellBC 532, 96 E.T.R. (3d) 146 (B.C. S.C.) — referred to Burke, Re (1959), 20 D.L.R. (2d) 396, [1960] O.R. 26, 1959 CarswellOnt 98, [1959] O.J. No. 706 (Ont. C.A.) — followed Fairfoull (No. 2), Re (1974), 44 D.L.R. (3d) 765, 1974 CarswellBC 367 (B.C. S.C.) — referred to Fairfoull Estate v. Bullman (1974), [1974] 6 W.W.R. 471, 18 R.F.L. 165, 1974 CarswellBC 214 (B.C. S.C.) — referred to Fairfoull Estate v. Bullman (1973), 41 D.L.R. (3d) 152, 1973 CarswellBC 314, [1973] B.C.J. No. 356 (B.C. S.C.) — referred to R.P. Johnson Family Trust (Trustees of) v. Johnson (2014), 2014 BCSC 1889, 2014 CarswellBC 2969, 1 E.T.R. (4th) 332 (B.C. S.C.) — referred to Smith Estate, Re (2010), 2010 BCCA 106, 2010 CarswellBC 500, 3 B.C.L.R. (5th) 93, 55 E.T.R. (3d) 1, 284 B.C.A.C. 182, [2010] B.C.J. No. 370 (B.C. C.A.) — followed TLC The Land Conservancy of British Columbia Inc. No. S36826, Re (2014), 2014 BCCA 473, 2014 CarswellBC 3568, 2 E.T.R. (4th) 52, 379 D.L.R. (4th) 101, 65 B.C.L.R. (5th) 284, 364 B.C.A.C. 82, 625 W.A.C. 82, [2015] 6 W.W.R. 69 (B.C. C.A.) — considered Thiemer Estate v. Schlappner (2012), 2012 BCSC 629, 2012 CarswellBC 1210, 77 E.T.R. (3d) 58 (B.C. S.C.) — referred to Statutes considered: Trustee Act, R.S.B.C. 1948, c. 345 s. 15 — considered Rules considered: Supreme Court Civil Rules, B.C. Reg. 168/2009 R. 9-7 — pursuant to

RULING on interpretation of clause in will.

R.A. Jarvis, for Plaintiffs A.S. MacKay, for Defendants

Betton J.: Introduction 1 Pursuant to Rule 9-7 of the British Columbia Supreme Court Civil Rules, the parties seek judicial interpretation of a clause in the will of Robert Fairfoull Sr. The specific language at issue is a direction to the 48 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

trustee “to retain in the form in which they are at the time of my death all investments in bonds and stocks...”.

Background 2 The will was executed October 23, 1951. A codicil was executed De- cember 30, 1954. The testator died August 14, 1957. 3 The Canada Permanent Trust Company (now Canada Trust Com- pany) was appointed executor and trustee and it obtained probate on No- vember 14, 1957. The defendants will be referred to collectively as the “Trustee”. 4 The plaintiffs are beneficiaries under the will and are unified in their position on this issue. 5 The testator was survived by two daughters, Mary Bullman and Cath- erine Dunn, and a son, Robert Fairfoull Jr. They were the principal beneficiaries of the will. The testator’s grandchildren were contingent beneficiaries. The ten plaintiffs/applicants are, by virtue of the terms of the will, beneficiaries. 6 The evolution of events affecting the beneficiaries and their entitle- ments is described in the following paragraphs from the written submissions of the applicants: 14. Pursuant to the Will, upon the death of the Testator, Mary and Catherine were both vested beneficiaries with respect to their 1/3 shares of the income of the Estate. 15. Mary and Catherine were also each contingent beneficiaries with respect to a 1/3 share of the capital of the Estate to the extent needed for their health or the health or education of their children. Both Mary and Catherine encroached on the capital of the Estate for health reasons on March 31, 2006 and March 23, 2009 respectively. Mary was paid $59,903.86 which represented the value of 1/3 of the capital of the Estate as of that date. Catherine was paid $55,967.07 which represented the value of 1/3 of the capital of the Estate as of that date. No other encroachments have been made on the capital of the Estate. 16. The Will provided that upon the deaths of each of the Daughters, 1/3 of the residue of the capital of the Estate would be paid to who- ever they directed in their wills, or failure direction, to their children. 17. The Daughters are both now deceased. Mary’s will directed that the residue of her Estate be divided into two equal shares between her children (Ken and Margaret). Catherine’s will directed that the residue of her estate be divided into two equal shares between her Dunn Estate v. TD Canada Trust Betton J. 49

daughter Catherine and her grandchildren, Christopher, Carolynn and Greg (in this application defined as the Great Grandchildren). There- fore, upon Mary’s death her children, Ken and Margaret, became vested residual beneficiaries with respect to any remaining portion of the 1/3 share of the capital of the Estate. As of Catherine’s death, Catherine Crowe (Catherine’s surviving daughter) and the Great Grandchildren became vested residual beneficiaries with respect to any remaining portion of the other 1/3 share of the capital of the Estate. 18. Because Mary and Catherine each encroached fully on the capital of the Estate for health reasons, nothing remained from those portions to vest in the Grandchildren or Great Grandchildren (although the claim is that if the Estate was properly managed and the investments and bonds and shares retained, there ought to have been significant capital remaining). However, because Robert Jr. died leaving no children, the Daughters or their children were entitled to his 1/3 share of the Estate. Because the Daughters are now deceased, Ken and Margaret (Mary’s surviving children) are each entitled to a 50% of Robert Jr.’s 1/3 of the capital of the Estate and Catherine Crowe (Catherine’s surviving daughter) is entitled to the other 50% share. 19. Robert Jr.’s portion of the capital of the Estate remains in trust with the Executor. Counsel for the Plaintiffs has requested that that portion be paid out but the Trustee has refused. 7 At the time of the testator’s death the value of the estate was $91,386.95. Of that, $76,780.37 was made up of various stocks and bonds. The bonds were from BC Tel, Canada Savings Bonds and various water districts and cities or municipalities and school districts. The stocks were in nine companies, including TD Bank and the Imperial Bank. 8 The Trustee initiated court proceedings before this Court in or about 1973. The Court was asked to resolve several questions relating to Rob- ert Fairfoull Jr.’s share of the estate on his death and the process to follow upon the death of one of the testator’s daughters. The decisions of Hutcheon J. are Fairfoull Estate v. Bullman (1973), 41 D.L.R. (3d) 152 (B.C. S.C.); Fairfoull (No. 2), Re (1974), 44 D.L.R. (3d) 765 (B.C. S.C.); and Fairfoull Estate v. Bullman, [1974] 6 W.W.R. 471, 18 R.F.L. 165 (B.C. S.C.) [Canada Permanent Trust Company]. The hearing consumed multiple court days and all parties, including Mary Bullman and Cathe- rine Dunn, were represented. Although Hutcheon J. did make the observation that portions of the will were “badly drawn” there is no indication that the issue before this Court was raised or considered at that time. 50 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

9 At various points in time between 1957 and 1979, Mary Bullman and Catherine Dunn received and/or approved the accounts of the Trustee and transactions that it had undertaken in the administration of the estate. 10 Between approximately 1957 and 1973, the Trustee sold most of the investments that existed at the testator’s death. No issue has been taken in respect of those actions by any past or present beneficiaries prior to the commencement of this action on September 23, 2009.

Issues and Positions of the Parties 11 Both sides of this dispute agree that the issue before the Court is appropriate for determination by way of summary trial. Each side has posed the question for determination in this application. 12 The applicants suggest that the question to be answered is: Did the Testator direct the Trustee to “retain all [the Testator’s] investments in bonds and stocks” in the form in which they were at the time of the [Testator’s] death and hold those “investments in bonds and stocks” in trust until the death of one of the Testator’s daughters? That question is paraphrased later in the submissions as being whether the Trustee was permitted to sell the investments in bonds and stocks that existed at the time of the testator’s death. 13 The defendants pose the question as follows: Does the Will require the Trustee to retain and hold the Testator’s bonds and stocks in specie for the lifetimes of his daughters, or does the Will give the Trustee the power to retain or sell as deemed advisable in the Trustee’s absolute discretion? 14 Both are generally accurate articulations, although the defendants’ more precisely captures the issue. 15 Both parties reviewed the authorities that provide guidance as to the proper approach to interpretation of wills and both agreed that the objective is to determine the subjective intent of the testator. There is no dispute as to those principles but the parties argue the application of them to the facts of this case should produce different results. 16 The full text of the clause in issue is as follows: 3. I GIVE, DEVISE AND BEQUEATH the whole of my property of every nature and kind and wheresoever situate, including any property over which I may have any power of appointment, to my said Trustee, upon the following trusts, namely: Dunn Estate v. TD Canada Trust Betton J. 51

(a) TO RETAIN in the form in which they are at the time of my death all my investments in bonds and stocks, and to sell, call in and convert into money all the rest and remainder of my estate not consisting of money and trustee investments at such time or times, in such manner and upon such terms, and either for cash or credit, or for part cash and part credit as my said Trustee may in its discretion decide upon, with power and discretion to postpone such conversion of such Estate or any part or parts thereof for such length of time as it may think best, and I hereby declare that my said Trustee may retain the whole or any portion of my Estate in the form in which it may be at my death (notwithstanding that it may not be in the form of an investment in which trustees are authorized to invest trust funds and whether or not there is a liability attached to any such portion of my estate), for such length of time as my said Trustee may in its discretion deem advisable, and my Trustee shall not be responsible for any loss that may happen to my estate by reason of it so doing. 17 The applicants say that the Trustee was required to retain the investments in stocks and bonds as they were at the testator’s death, subject to limited powers of encroachment for specific purposes and only after all other capital was exhausted. 18 The defendants argue that the Trustee had the power to retain the stocks and bonds but that it was not obligated to do so and had the discretion to deal with those stocks and bonds and the remainder of the estate in its absolute discretion. 19 The applicants introduced evidence said to be of the surrounding circumstances at the time of execution of the will. The defence takes the position that the evidence is inadmissible. Based on my analysis below, I do not find it necessary to address this issue as I am able to determine the intention of the testator without resort to the disputed evidence.

Analysis 20 As noted, the parties agree as to the rules of construction to be employed in determining the intention of the testator. Generally, it is to be a staged approach where a second or subsequent step or method is only employed where the previous has not allowed the court to determine the testator’s intention. 21 The first approach is to look at the ordinary meaning of the words used within the four corners of the will. Counsel referred to several cases 52 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

that have articulated this in slightly different ways with each articulation providing some assistance and clarity. Counsels’ presentation of the law, evidence and argument was concise and effective. 22 The defendants referenced TLC The Land Conservancy of British Columbia Inc. No. S36826, Re, 2014 BCCA 473 (B.C. C.A.) [TLC], as well as others in these paragraphs from the defendants’ written argument: 44. In TLC The Land Conservancy of British Columbia v. The Uni- versity of British Columbia, 2014 BCCA 473the Court stated: [45] The parties are also agreed as to the general principles governing the interpretation of wills. The basic principle was articulated by the Supreme Court of Canada in National Trust Co. Ltd. v. Fleury, 1965 CanLII 18 (SCC), [1965] S.C.R. 817 at 829: In the construction of wills, the primary purpose is to determine the intention of the testator and it is only when such intention cannot be arrived at with reasonable certainty by giving the natural and ordinary meaning to the words which he has used that resort is to be had to the rules of construction which have been developed by the Courts in the interpretation of other wills. [46] Other relevant principles include the following statements from James MacKenzie, Feeney’s Canadian Law of Wills, loose-leaf, 4th ed. (Markham, Ont.: LexisNexis, 2000): §10.43 ... the most influential rule of construction is that the court may construe the words used by the testator in their ordinary sense...... §10.60 The testator’s intention is to be gath- ered from a consideration of the will as a whole and not solely from the words used, say, in an unclear portion of the will. The ordinary meaning rule and other rules of construction are entirely subservient to the content of the will. This idea is often expressed by saying that the testator’s intention is to be ascertained, first of all, from the four corners of the will. ... Dunn Estate v. TD Canada Trust Betton J. 53

§10.61 It is reasonable to presume that the testator’s intention was that effect be given to every word of his or her will ... [Footnotes omitted.] [47] It is appropriate to consider surrounding facts and circumstances only if the language of the will is ambiguous: Feeney’s Canadian Law of Wills at §10.51. 45. There are a number of principles that the court utilizes in determining the testator’s intention from the plain meaning of the words used within the four corners of the will: (a) A cardinal principle of interpretation of a will is that each clause must be construed in the context of the will as a whole. It is incorrect to interpret a single clause in a will without reference to the will as a whole. TLC, supra, at para. 46; Feeney’s Canadian Law of Wills, loose-leaf, 4th ed. (Markham Ont: Lexis Nexis, 2000) at §10.60 (b) The court should interpret the will in a way which gives effect to all the words used in a will, and reject in- terpretations that would render certain words or phrases inoperable. Stark, Re, [1969] 2 O.R. 881, 7 D.L.R. (3d) 313 (C.A.) (c) In interpreting a will, the Court should not add or in- sert words unless it is “patently obvious” that there has been an inaccurate expression by the testator of his or her intention, and the words that should be read in are clearly what the testator had in mind. Laws v. Dobson Estate, 2006 BCSC 1519at para. 56 Brooks Estate, Re, 2011 BCSC 1606 (d) Where a testator repeats a word or phrase, it should be presumed that the testator intended to express the same idea. Middlebro v. Ryan (1924), [1925] 1 D.L.R. 589, [1925] S.C.R. 10 (e) Where a testator uses different words or phrases, it should be presumed that the testator intended to express difference ideas. Lanterman Estate v. Lanterman (19[9]7), 18 E.T.R. (2d) 254, 202 A.R. 285 (AB Surr. Ct.) 54 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

23 The applicants’ summary of the law on this point references some different authorities as follows: 27. It is well accepted that the primary purpose in the interpretation of a will is to determine the intention of the testator. This ought to be accomplished, where possible, based solely on the ordinary meaning of the words used within the four corners of the Will by reading it as a whole. If the testator’s intention can be determined in the context of the Will as a whole, it is unnecessary to look any further. Smith v. Smith Estate (Trustee of), 2008 BCSC 1189(“Smith BCSC”) at paras. 30-31; Smith v. Smith Estate (Trustee of), [2010] BCJ No. 370 (“Smith BCCA”) at paras. 18 & 28 Feeney’s Canadian Law of Wills (4th edition) (“Feeney’s”) at §10.60 28. The Supreme Court of Canada has commented that ordinary meaning often refers to a reader’s first impression meaning: Although the weight to be given to the ordinary meaning of words varies enormously depending on their context, in the instant case, a textual interpretation supports a com- prehensive analysis based on the purpose of the Act. Most often, “ordinary meaning” refers “to the reader’s first impression meaning, the understanding that spontaneously emerges when words are read in their immediate context” (R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 21; Marche v. Halifax In- surance Co., [2005] 1 S.C.R. 47, 2005 SCC 6, at para. 59). In Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724, at p. 735, Gonthier J. spoke of the “natural meaning which appears when the provision is simply read through”. Pharmascience Inc. v. Binet, 2006 SCC 48[at para. 30] 29. When interpreting a will, the court should consider the Will as a whole to garner the intention of the testator, rather than particular phrases in isolation. Smith BCCA supra, at para. 30 Henderson Estate v. Honeybourn, [2003] B.C.J. No. 783 at paras. 11 and 25 30. Where a clause is ambiguous and capable of two reasonable in- terpretations, one in harmony with the balance of the will and one at variance to it, the former is to be preferred. Feeney’s at §10.62 Dunn Estate v. TD Canada Trust Betton J. 55

Re Galt, Royal Trust Co. v. Martin (1957), 12 DLR (2d) 140 (BCCA) (“Galt”) at [142] 31. The law is that it is reasonable to presume that the Testator’s intention was that effect be given to every word of his or her will and that none of the words be rejected. This principle is outlined in Smith BCSC as follows: The court should make every effort to reconcile two apparently conflicting provisions of a will, rather than to ab- solutely ignore one or the other of them, or call either or both of them void for uncertainty. Feeney’s at §10.61 Smith BCSC at para. 34 32. Where in a will there is an omission that is plain on its face or an ambiguity, the Court may apply common sense to make a change or addition if the testator’s intention is clear. Laws v. Dobson Estate, [2006] BCJ No. 2700 at para. [55] 24 Where the intention of the testator cannot be determined from the language used in the will, resort may be had to the so-called “armchair rule” of construction, which has been described in Smith Estate, Re, 2010 BCCA 106 (B.C. C.A.) at para. 18, citing Burke, Re (1959), 20 D.L.R. (2d) 396 (Ont. C.A.) at 398, (1959), [1960] O.R. 26 (Ont. C.A.): Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so. 25 It is also well-established that in an application of the armchair rule, direct extrinsic evidence of intent is generally not admissible: Thiemer Estate v. Schlappner, 2012 BCSC 629 (B.C. S.C.) at para. 50; Ali Estate, Re, 2014 BCSC 340 (B.C. S.C.) at paras. 18-19; and R.P. Johnson Family Trust (Trustees of) v. Johnson, 2014 BCSC 1889 (B.C. S.C.)at para. 31. 56 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

26 Both parties in this application maintain that their respective positions on the proper interpretation of this will are established by the words alone and that I need not reference or rely on any other rule of construction, including the armchair rule to interpret this will. 27 If, after an examination of the language used within the four corners of the will and, if necessary, aided by the application of the armchair rule, the intention of the testator still has not been determined, other rules of construction may be employed. As will be seen from the analysis which follows, I do not find it necessary to resort to additional rules of construction; therefore, I will not address them further. 28 Clause 3(a) of the will quoted above is followed by clauses 3(b) through (h). Clauses (f) and (h) were modified by the codicil. 29 Clause 3(b) directs the Trustee to pay any debts or other obligations “out of the corpus of my Estate”. 30 Clause 3(c) directs the Trustee to pay $3,000 to a Mrs. Smith and provide her with the complete furnishings of her bedroom if she is living at the testator’s death. It is my understanding that Mrs. Smith was a housekeeper. 31 Clause 3(d) directs the Trustee to convert into money all the remainder of the estate not consisting of “money and investments authorized by this my will” with a broad discretion to determine when to do so and absolving the trustee of any liability attached to the exercise of that discretion. 32 Clause 3(e) directs the Trustee to invest the proceeds of any sale or conversion of investments in “investments authorized by law for the investment of funds of insurance companies”. 33 Clause 3(f) provides direction with respect to the use of the income from the estate. It gives the Trustee a discretion to retain 10% of the net annual income against the possibility of “shrinkage of capital” but then to provide $35 per month to Mrs. Smith for her lifetime and to divide the rest of the income into three equal parts and provide one of each of those parts to his children. This clause only entitles Robert Fairfoull Jr. to his share of the income provided he is no longer married to his wife. This provision was held by Hutcheon J. to be void as contrary to public policy (Fairfoull Estate v. Bullman at 154; Fairfoull Estate v. Bullman at 474). 34 Clause 3(g) permits the Trustee to encroach on the capital of the estate, if the trustee deems it necessary “by reason of the ill health of any of Dunn Estate v. TD Canada Trust Betton J. 57

my children or of their families or for the education of any children of my children”. 35 Clause 3(h) provides that after the death of either of the testator’s daughters, the Trustee is to divide the estate into three equal parts and pay one of those parts in accordance with the will of the deceased daughter or otherwise to her issue. It goes on to direct that on the death of the second daughter, to distribute the second and third shares in a similar fashion unless Robert Fairfoull Jr. remains married to his wife. Consider- ing the testator’s son died prior to both daughters, Hutcheon J. found at 156 that: ... the share of the son does not come into being until the death of the first of the daughters to die. Since the son predeceased both of the daughters his prospective share goes share and share alike to the two daughters. On the death of the first of them one part vests in the surviving daughter and the other in the children of the deceased daughter per stirpes. 36 Clause 4 reiterates that the Trustee is exonerated from any responsibility for loss or damage which may be occasioned by retaining his investments in the form in which the same may have been at the testator’s death or by reason of investments made in good faith. 37 The will employs different terms at different times in expressing the testator’s intentions. The critical words that are the foundation of this dispute, is a reference to “investments in bonds and stocks” in clause 3(a). Immediately thereafter but still in the same clause there is a reference to “money and trustee investments” and still further to “investment in which trustees are authorized to invest trust funds”. Later in clause 3(d), there is a reference to “money and investments authorized by this my will” and then in clause 3(e) to “investments authorized by law for investment of funds of insurance companies”. Counsel agree that the reference to trustee investments is a reference to the Trustee Act, R.S.B.C. 1948, c. 345, s. 15 in effect at that time which restricted the trustee in terms of the investments it was authorized to use unless a contrary intention appeared in the will. 38 It is apparent that, subject to the discretion afforded the Trustee by the terms of the will, the testator’s intention was that, at the conclusion of the conversion process, the Trustee would hold three possible types of assets: 1) the stocks and bonds that the testator held at the date of his death, if any (clause 3(a)); 58 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

2) trustee investments (clause 3(a)); and 3) any monies accumulated would be invested in investments that insurance companies could use (clauses 3(d) and (e)). 39 It is also clear that the testator intended to protect the Trustee from any liability associated to the exercise of the discretion granted by the will. 40 It must be understood when reading the will that the testator would not have known at the time of the execution of the codicil whether in fact he would hold any stocks or bonds at the time of his death. Anything other than those stocks and bonds that was not “money and trustee investments” was to be converted into money by virtue of clauses 3(a) and (d) and invested in “investments authorized by law for the investment of funds of insurance companies” pursuant to clause 3(e). 41 The issue here is really a matter of identifying the testator’s intention as to the scope of that discretion. I do not agree with the defendants that the intention was to allow but not obligate the Trustee to retain the bonds and stocks. If that were so, there would have been no reason to specifically reference the bonds and stocks in the opening portions of clause 3(a). That direction “to retain in the form in which they are at the time of my death all my investments in bonds and stocks” would be rendered meaningless if the intention of the testator was simply to have the Trus- tee follow the direction that immediately follows those words and “convert into money all of the rest and remainder of my estate not consisting of money and trustee investments”. In other words, the clause would simply have directed the Trustee to convert into money all of the estate not consisting of money and trustee investments. 42 I reiterate that the testator did not know at the time of the execution of the will or the codicil whether he would, in fact, have bonds or stocks at the date of his death. Recognition of that fact is responsive, at least in part, to the defendants’ argument that none of the other provisions grant- ing the Trustee discretion to hold or dispose of any portion of the estate make an exception for the bonds and stocks. In my view, the testator began his expression of his intentions with the direction to retain the bonds and stocks that might exist at that time and proceeded to articulate what was to happen in terms of conversion of the balance of the estate thereafter. 43 The defendants say that the Trustee was given discretion to retain the stocks and bonds but there was no imperative attached to the word “retain” to indicate there was a duty to do so. I observe that the use of the Dunn Estate v. TD Canada Trust Betton J. 59

phrase “to retain” is more indicative of a duty than a power. While the defendants note that clause 3(a) does not say that the Trustee “must retain” neither does it say that the Trustee “may retain”. The use of the word “retain” alone and unmodified and when read in context, in my view, is indicative of an obligation not a power. As noted above, however, the proper construction must be based on the whole of the will rather than individual words. 44 The defendants, correctly in my view, point out that clause 3(a) may be said to have three parts. Part one is the direction in respect of the stocks and bonds; part two is the power to sell and convert into money anything not consisting of money and trustee investments; and part three is the discretion to retain or to sell the whole or any portion of the estate. As indicated, however, I do not agree that part one is a discretionary power when read in context and if that direction to retain the stocks and bonds is to have any purpose. 45 The defendants stress that clauses 3(b) and (g) permit the Trustee to encroach on capital but make no specific reference to preserving the bonds and stocks. Instead they refer to conversion of the whole or any portion of the estate. The applicants suggest that the intention was that the bonds and stocks be the last of any capital to be encroached upon, if considered appropriate by the Trustee, but that encroachment was ultimately authorized if necessary for the purposes in clauses 3(g) or for ultimate distribution. 46 In the result, both the applicants’ and defendants’ positions require an inference regarding some aspect of the testator’s intention that is not specifically expressed by the testator. If I accept the applicants’ interpretation, the Trustee would be obligated to retain the bonds and stocks unless encroachment was necessitated by the depletion of all other capital. 47 If I accept the defendants’ position, I must, in my view, ignore the expressed intention in clause 3(a) or, at the least, read it down. 48 In my view, the former is the appropriate course and not the latter. 49 I will now address some additional points raised by the defendants in their argument challenging this conclusion. 50 The defendants argue that the testator does not identify anything special or unique about his bonds and stocks that would suggest a desire that they be retained for the lifetime of his daughters. To the contrary, the testator saw fit to make a specific reference and direction to retain the bonds and stocks, if indeed any existed. The fact that he chose to do so 60 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

suggests that he did view them as being special or unique. Obviously, it would have been preferable, in hindsight, if there had been more clarity. The task of interpretation must obviously still be undertaken in the face of less than perfect drafting. 51 The defendants suggest that this conclusion ignores the portion of clause 3(a) that follows the direction regarding bonds and stocks which states that the Trustee may retain the whole or any portion of the estate. As noted, the testator did not know if indeed there would be bonds and stocks and that portion of clause 3(a) must be read in light of the earlier portion and within the four corners of the will as a whole. In addition, the language “may retain” is, in my view, a reference to everything other than the bonds and stocks in the opening direction referencing them. 52 The defendants argue that the applicants’ interpretation requires me to determine “that the Testator, in referring to ‘money and trustee investments’ intended to include ‘bonds and stocks’, as clause 3(a) directs all property that does not consist of ‘money and trustee investments’ to be sold at the discretion of the Trustee.” In my view, however, that proposition ignores the specific direction to retain the bonds and stocks and to convert into money all of the rest of the estate not consisting of money and trustee investments, as described in para. 38 above.

Conclusion 53 In the result, it is my finding that the Trustee was required to retain the testator’s bonds and stocks in specie for the lifetime of his daughters, subject to encroachment if the balance of the capital of the estate was otherwise exhausted. Order accordingly. Susin v. Susin 61

[Indexed as: Susin v. Susin] Fermino Susin, Applicant and Dorino Susin, John Susin, Anita Rahman, Dianne Susin, Sister Stella Marie, Gloria Devinz, Esther Susin and Theresa Lensborn, Respondents Ontario Superior Court of Justice Docket: Welland 3583/05 2016 ONSC 311 J.A. Ramsay J. Heard: January 12, 2016 Judgment: January 13, 2016 Civil practice and procedure –––– Judgments and orders — Setting aside — Grounds for setting aside — Fraud, perjury or collusion –––– Litigation arose after father died, leaving his residence to be divided among his eight children, including E, J, F and R — J took position he was beneficial owner of house — Order was made throwing J out of house and ordering it sold — J vowed to, and did, deplete estate by bringing dozens of motions to which estate had to respond — J was found to be vexatious litigant, but continued to bring proceedings through various siblings including E — E brought motion for directions against executors F and R — Motion was dismissed as abuse of process — E brought motion to set aside dismissal of motion on basis that it was obtained by fraud; F brought cross-motion — Motion dismissed — Fraud consisted of allegedly false representations made by F to court — Alleged representations were not misleading or deliberate — There was no evidence order was obtained by fraud or in contempt of court. Judges and courts –––– Contempt of court — Forms of contempt — Con- tempt in face of court –––– Litigation arose after father died, leaving his residence to be divided among his eight children, including E, J, F and R — J took position he was beneficial owner of house — Order was made throwing J out of house and ordering it sold — J vowed to, and did, deplete estate by bringing dozens of motions to which estate had to respond — J was found to be vexatious litigant, but continued to bring proceedings through various siblings — E brought motion for directions against executors, F and R — Motion was dismissed as abuse of process — E brought motion to set aside dismissal; F brought cross-motion to find E and J in contempt — J disrupted hearing by interrupting repeatedly — After number of warnings J was found in contempt instanter and committed to prison overnight — Motion against J adjourned to date to be arranged, and to be heard by different judge. 62 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

Judges and courts –––– Contempt of court — Forms of contempt — Disobe- dience of court — Mandatory orders –––– Litigation arose after father died, leaving his residence to be divided among his eight children, including E, J, F and R — J took position he was beneficial owner of house — Order was made throwing J out of house and ordering it sold — J vowed to, and did, deplete estate by bringing dozens of motions to which estate had to respond — J was found to be vexatious litigant, but continued to bring proceedings through various siblings — F and R were executors of father’s estate — E brought motion for directions against executors, which was dismissed as abuse of process — E brought motion to set aside dismissal; F brought cross-motion to find E and J in contempt — Motion dismissed on other grounds; cross-motion dismissed in part — J used E as agent on motion and facilitated his continuing campaign against estate in contravention of court order — However, it was not clear that E intended to subvert administration of justice — E was not in contempt of court, but she was not entitled to costs as there was good reason to suspect her of contempt — E not to bring any further motions with respect to estate without leave of court and without having satisfied outstanding orders for costs against her. Cases considered by J.A. Ramsay J.: Susin v. Susin (2014), 2014 ONCA 733, 2014 CarswellOnt 15019, 2 E.T.R. (4th) 175, 379 D.L.R. (4th) 308, 327 O.A.C. 61 (Ont. C.A.) — considered

MOTION by beneficiary to set aside order dismissing her motion for directions against executors; CROSS-MOTION by executor to find two beneficiaries in contempt.¶

Ms M. Hoy for Applicant Mr D. Freudman for Esther Susin John Susin for himself

J.A. Ramsay J.:

1 Esther Susin moved before me on September 23, 2015 for orders for directions against Fermino Susin and Habibur Rahman, who were then the executors of her father’s estate. Rahman has since been removed. Fermino remains. I dismissed her motion as an abuse of process with costs. I later gave reasons at 2015 ONSC 5896. Esther Susin now moves to set aside my order of September 23, 2015 on the ground that it was obtained by fraud. She also moves to cite Fermino Susin for contempt. She moved to cite Ms Hoy for contempt, but her counsel abandoned that motion in oral argument, and he saved his client from exposure to a puni- tive cost order by doing so. Esther Susin relies on the affidavit of her Susin v. Susin J.A. Ramsay J. 63

brother, John Susin, who was found to be a vexatious litigant in 2008 by reason of his constant repetitive and abusive motions involving the estate of the parties’ father. Esther also moves to settle my order of September 23. Finally, Fermino Susin, the executor, has filed cross-motions asking for findings of contempt of court against Esther and John. 2 I dismissed Esther’s motions at the beginning of the day without reference to the merits because she did not appear in person or by counsel. She did not have a lawyer of record at that point. Before hearing the cross motions, I got a message that Mr Freudman telephoned to say that he was delayed by the weather. I took a break, after which Mr Freudman appeared and the motions were argued on their merits. I dismissed Es- ther’s motions with reasons to follow and ordered her to pay $3,500 costs. Mr Freudman’s retainer is limited to arguing today’s motions.

Esther Susin’s motions Settling the order of September 23, 2015 3 The parties agree that the order of September 23, 2015 should go in terms stating that the motion for directions is dismissed, with $2,500 costs payable by Esther forthwith.

Setting aside the order of September 23, 2015 for fraud; contempt by Fermino Susin The history of the litigation 4 The history of the litigation is summarized in Susin v. Susin, 2014 ONCA 733 (Ont. C.A.). In briefest recapitulation, John Susin (senior) died in 1997, leaving his residence to be divided among his 8 children, subject to a life estate in his wife. John Susin (junior) took the position that he was the beneficial owner of his father’s house and continued to live in the house long after his parents were both dead. One executor, Fermino Susin, opposed John. The other, Dorino Susin, supported him. In 2007, Turnbull J. rejected John’s claim, threw him out of the house and ordered the house to be sold. He removed Dorino as executor and ordered that the proceeds of sale of the house be distributed among the beneficiaries subject to a first charge for the estate’s costs. The house was sold and the proceeds after expenses went into a trust fund. Fermino Susin deposes, and I accept, that when he was trying to get John out of the parental home, John said that he would deplete the estate. John has succeeded in doing this. John has brought dozens of motions to which the estate has been obliged to respond. For example, seven judges were 64 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

required to rule that the estate questions should be heard in Welland, as opposed to anywhere else. The system is hard pressed to cope with the exceptional litigant who is both energetic and ruthless. 5 After paying legal fees occasioned by successfully defending John’s litigation, about $30,000 is still in the trust account, but Ms Hoy, the accountant and the executor are owed at least that much. There are several cost orders outstanding against John, Dorino and now Esther. John owes the estate occupation rent ordered by Turnbull J. and Dorino Susin guaranteed that debt. This debt, too, is outstanding. The executor reasonably believes that he ought not to pass his accounts and wind up the trust without first making an effort to collect these debts. 6 In 2008 Quinn J. declared John a vexatious litigant and ordered that he not commence any judicial proceeding without leave of the court and that he could bring no proceeding against the estate without first satisfying all outstanding cost orders. John then began having his siblings file motions for him, motions that he would argue as their agent or as amicus curiae. On January 10, 2014 I ordered that John could not appear as agent for his siblings or as amicus curiae. Thereafter John continued liti- gating through siblings but always behind the scenes. In the present case, Dorino Susin appeared for Esther to adjourn what purported to be her motion made through her counsel, Mr Mostyn. Mr Mostyn later deposed that he did not consent to the filing of this motion under his name. John had initially consulted him. He told John that he would not act for him and he was never retained by Esther. Mr Mostyn has been a respected member of a regulated profession for 50 years. His evidence is convincing.

The alleged fraud 7 The fraud is said to consist of several allegedly false representations made to me by Fermino Susin, the executor, in his affidavit or through his lawyer. The deliberate misleading of the court is the basis of the alleged contempt. I deal with them in order.

Fermino’s assertion that the motion was res judicata 8 In alleging that the motion was res judicata, Fermino was talking about a conclusion of law, not a representation of fact. Whether I was right or wrong to say that the motion was res judicata, there was no misrepresentation of fact, let alone a deliberate misrepresentation. Susin v. Susin J.A. Ramsay J. 65

Ms Hoy’s assertion that Dorino Susin was the moving party on Esther’s motion 9 Esther Susin is the moving party. But in her oral submissions, Ms Hoy recognized that. She said, “I think Dorino Susin and John Susin are moving under her name to attempt to do indirectly what they can’t do directly.” Ms Hoy was making a legal submission. Nothing in it was misleading. There was no fraud.

Ms Hoy’s statement “Justice Ramsay made a vexatious order against Dorino Susin.” 10 Of course, there is no such thing as a “vexatious order.” That is simply a form of oral shorthand. I did not make an order against Dorino Susin under the Vexatious Litigants Act, nor did I find him in general to be a vexatious litigant. But as part of his sentence for contempt of court, I ordered him to take no further steps in this litigation. The Court of Ap- peal varied that order by adding the provision “without leave of the court.” So Ms Hoy’s oral utterance accurately captured what I had done and was in no way misleading.

Ms Hoy’s submission that the Susins brought the same motion in Newmarket to be heard the same day 11 Ms Hoy, in response to a question from the bench, said, “What they do, Your Honour, is they simultaneously put it in two different courts because they know I can’t be in two places at once.” What she said was essentially supported by Fermino Susin’s affidavit. Fermino referred to “a” motion, without specifying its subject matter. John Susin deposes that he moved in Newmarket for leave to file a motion while Esther brought the motion in Welland, and says, “The two motions are entirely unrelated.” 12 Dorino Susin and I had the following exchange on September 23, 2015: THE COURT: Why did you do that, Mr Susin? Why did you make two motions in different courts on the same day, what is the purpose of that? Mr Susin, I asked you a question. MR DORINO SUSIN: I did that on the advice of some help. 13 John deposes that Dorino did not mean to say this. He gave the wrong answer because of his health. In my assessment, the answer was responsive and coherent. I take it as an admission that Dorino was involved in both and I infer that John was the “help.” 66 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

14 The motion in Newmarket is certainly not unrelated to the present proceedings. The effect of the motions was to oblige Ms Hoy to be in two places at once. John knew about both. I infer that John scheduled both. Correspondence to the trial coordinator in the file purporting to be from Esther is signed “E. Susin per J.” Ms Hoy cannot be taken to have spoken dishonestly when she claimed that the two motions were brought at the same time as a tactic. That was just what it looked like. 15 There is no evidence that my order of September 23, 2015 was obtained by fraud or in contempt of court. The motion to set it aside is dismissed.

The executor’s cross-motions The motion to cite John Susin for contempt 16 John Susin disrupted the hearing by interrupting Ms Hoy’s oral submissions repeatedly. After a number of warnings I found him in contempt instanter and committed him to prison overnight. I adjourned the hearing of the motion against John to a date to be arranged and directed that it be heard by a different judge.

The motion to cite Esther Susin for contempt 17 Esther Susin is said to have breached the order of Quinn J. Quinn J. found John Susin to be a vexatious litigant and prohibited him from insti- tuting proceedings without leave of the court and, in the case of proceedings against the estate, without satisfying outstanding cost orders. It is submitted that Esther, by allowing John to sue in her name, was deliberately contravening that order and undermining the fair administration of justice. 18 Clearly, Esther used John as an agent on the present motion, although not as an agent to appear in court. John went to see Mr Mostyn in an unsuccessful attempt to retain him for Esther’s motion. John drafted and swore the affidavit that was filed for the motion to set aside my order of September 23, 2015. Esther’s factum for today’s appearance was taken verbatim from John’s affidavit. I infer that John sent Dorino to speak to the motion on September 23. 19 In so acting, Esther facilitated John’s continuing campaign against the estate and contravention of Quinn J.’s order. I am not sure, however, that she did so intending to subvert the administration of justice. Unlike Dorino, she may have thought that she had some prospect of legitimately recovering some money from the estate. As of today, she can no longer Susin v. Susin J.A. Ramsay J. 67

be under any such misapprehension. I dismiss the motion to find Esther in contempt of court. She is not, however, entitled to costs. There was good reason to suspect her of contempt and she deliberately chose to skate on thin ice.

Case management orders 20 Dealing with these motions gives me reason to believe that procedu- ral orders are necessary to attempt to bring this matter to a just and expe- ditious conclusion. There is no point in any further motion for directions until the executor has had a chance to attempt to collect on the estate’s remaining debts, which just today have increased by $6,000. Once the executors are ready, there is no reason why any protracted proceedings should ensue. The trust account records and the bills of the lawyers, accountant and executor will tell the whole story. Of my own motion, I order: a. Esther Susin shall not bring any further motions with respect to the estate without leave of the court and without having satisfied the outstanding orders for costs against her; b. When the executor moves to pass his accounts, the following procedure shall apply unless otherwise ordered by the motion judge: i. any objecting party may reply in writing by submitting a sworn affidavit not exceeding four pages in length and written argument not exceeding the same length; ii. there will be no cross examination on the executor’s affidavit or affidavits without leave of the court. 21 This order may be taken out without the approval of John Susin. Order accordingly. 68 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

[Indexed as: Kong v. Kong] Matthew Tak-Ming Kong, Tak-Shing Kong, Jack Tak-Fung Kong, Tak-Ching Kong, Plaintiffs and Jackson Tak-Shun Kong, Russell Graham Lew, Executor of the Estate of Shui Ping Kong, Irene Oi-Lin Kong, and Steven Tak-Choi Kong, Defendants British Columbia Supreme Court Docket: Vancouver S150452 2016 BCSC 215 Sharma J. Heard: January 29, 2016 Judgment: February 12, 2016 Estates and trusts –––– Estates — Dependants’ relief legislation — Practice and procedure — Costs — Payable by claimant –––– Testator changed will and transferred property to youngest son before he died — Other children alleged property transfers and changes to will were invalid because testator was under undue influence — Other children asserted testator failed to make adequate provision for them — Court concluded that testator did not make adequate provision because he did not exhaust his moral duties to them — Will was altered such that two of plaintiffs were entitled to five per cent share of estate — Claim of undue influence was dismissed — Property transfers were found to be gifts and no resulting trust was created — Parties made submissions as to costs — Defendant was awarded costs on usual scale — It was appropriate case for defendants to recover all their costs from plaintiffs — Two plaintiffs least involved in litigation were successful so their success was not due to their efforts — Neither testator nor beneficiaries of his will were cause of litigation and as such, costs were not awarded from estate — Award of special costs was not justified — Although there was animus among children, there was not direct link between that animus and positions taken in litigation. Cases considered by Sharma J.: Chang Estate v. Chang (2014), 2014 BCSC 1243, 2014 CarswellBC 1955, 3 E.T.R. (4th) 311 (B.C. S.C.) — considered Fotheringham v. Fotheringham (2001), 2001 BCSC 1321, 2001 CarswellBC 2148, 13 C.P.C. (5th) 302, [2001] B.C.J. No. 2083, [2001] B.C.T.C. 1321 (B.C. S.C.) — considered Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740, 9 B.C.L.R. (3d) 242, 14 C.C.E.L. (2d) 84, 41 C.P.C. (3d) 298, (sub nom. Kong v. Kong Sharma J. 69

Garcia v. Crestbrook Forest Industries Ltd. (No. 2)) 45 B.C.A.C. 222, (sub nom. Garcia v. Crestbrook Forest Industries Ltd. (No. 2)) 72 W.A.C. 222, 1994 CarswellBC 1184, [1994] B.C.J. No. 2486 (B.C. C.A.) — referred to Gold v. Gold (1993), 82 B.C.L.R. (2d) 180, 106 D.L.R. (4th) 452, 49 R.F.L. (3d) 56, 20 C.P.C. (3d) 61, (sub nom. Gold v. Gold (No. 2)) 32 B.C.A.C. 287, (sub nom. Gold v. Gold (No. 2)) 53 W.A.C. 287, [1993] B.C.J. No. 1792, 1993 CarswellBC 216 (B.C. C.A.) — considered Kouwenhoven Estate v. Kouwenhoven (2001), 2001 BCSC 1402, 2001 Car- swellBC 2234, 14 C.P.C. (5th) 154, [2001] B.C.T.C. 1402, [2001] B.C.J. No. 2070 (B.C. S.C.) — considered Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341, 50 E.T.R. 297, 1993 Car- swellBC 288, [1993] B.C.J. No. 1894 (B.C. Master) — referred to McLean v. Gonzalez-Calvo (2007), 2007 BCSC 648, 2007 CarswellBC 991, 36 E.T.R. (3d) 126, [2007] B.C.J. No. 956 (B.C. S.C. [In Chambers]) — considered Stanton v. Stanton Estate (2008), 2008 BCSC 470, 2008 CarswellBC 751, 39 E.T.R. (3d) 154 (B.C. S.C.) — considered Stanton v. Stanton Estate (2008), 2008 BCCA 362, 2008 CarswellBC 1942, 43 E.T.R. (3d) 1 (B.C. C.A.) — considered Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76, [1995] 3 W.W.R. 515, 6 E.T.R. (2d) 1, 121 D.L.R. (4th) 485, 54 B.C.A.C. 219, 88 W.A.C. 219, 1995 CarswellBC 8, [1995] B.C.J. No. 170, 1995 BCCA 2544 (B.C. C.A.) — referred to Westsea Construction Ltd. v. 0759553 B.C. Ltd. (2013), 2013 BCSC 1352, 2013 CarswellBC 2293 (B.C. S.C.) — followed

ADDITIONAL REASONS concerning costs to judgment reported at Kong v. Kong (2015), 2015 BCSC 1669, 2015 CarswellBC 2646 (B.C. S.C.), finding that testator did not make adequate provision for two of his children in his will.

R.A. Kasting, for Plaintiffs No one for Defendant, Russell Graham Lew, Executor of the Estate of Shui Ping Kong T. Brayer, for Defendant, Jackson Tak-Shun Kong No one for Defendants, Irene Oi-Lin Kong and Steven Tak-Choi Kong

Sharma J.:

1 This is a decision about costs relating to the judgment indexed at Kong v. Kong, 2015 BCSC 1669 (B.C. S.C.). The opening paragraph summarizes the issues in that case: [1] This litigation arises from a dispute about changes made to a patriarch’s will and the transfer of property to his youngest son shortly 70 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

before he died. Some of the deceased’s other children allege the property transfers and changes to the will are invalid because the deceased was under undue influence. They also rely on the Wills Varia- tion Act, R.S.B.C. 1996, c. 490 to say the patriarch failed to make adequate provision for them. The beneficiary of the property transfers and altered will says his father was of sound mind, met his moral obligations to all his children, [and] was not under any undue influence. 2 The deceased, Shui Ping Kong (Mr. Kong) and his wife (who predeceased him) had seven children: six sons and one daughter. All but one of the children testified at trial. Four of the sons were the plaintiffs. The daughter and the youngest son were defendants. Because they share the same last name, I refer to Mr. Kong’s children by their first names, notwithstanding they are all adults and no disrespect is conveyed by doing so. 3 I concluded that with regard to two of the plaintiffs, Mr. Kong had not made adequate provision because he had not exhausted his moral duties to them. Accordingly, I altered the will such that each of those two plaintiffs were entitled to a 5% share of the estate. I dismissed the claim of undue influence, and found that the property transfers from the deceased to his youngest son were gifts and therefore no resulting trust was created. 4 Counsel for the plaintiffs suggest that because the success was split, no award should be made for costs; in the alternative if an award is made, they submit I must factor into that award the fact that two of the four plaintiffs were successful, even if only modestly. The defendant, Jackson Kong, submits he should be awarded special costs or, in the alternative, special costs in relation to that part of the litigation that dealt with undue influence, and usual scale for the rest. It is also his position that the costs should not be awarded from the estate.

Should the estate pay the costs? 5 I agree that any order for costs ought not to come out of the estate. The parties agreed that a helpful case on this issue is Chang Estate v. Chang, 2014 BCSC 1243 (B.C. S.C.) [Chang Estate]. That case reiter- ated the usual rule that costs follow the event such that a substantially successful litigant is entitled to recover costs from the unsuccessful op- posing party, unless a court otherwise orders, relying on Fotheringham v. Fotheringham, 2001 BCSC 1321 (B.C. S.C.) and Gold v. Gold (1993), 106 D.L.R. (4th) 452 (B.C. C.A.). Kong v. Kong Sharma J. 71

6 In Chang Estate, Justice Dardi also noted that there are some unique principles that apply in certain types of estate litigation. For instance, where the litigation has been brought about by the will-maker’s own conduct, such as ambiguous wording in the will, generally all parties should be awarded costs out of the estate: Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341 (B.C. Master); Vielbig v. Waterland Estate (1995), 121 D.L.R. (4th) 485 (B.C. C.A.). At paragraph 36 Justice Dardi summarized the legal principles: In probate actions, if the court finds either the will-maker or the re- siduary beneficiary was “the cause” of the litigation or the litigation was in some way encouraged by the will-maker’s conduct, for example, when there is confusion or uncertainty surrounding his or her testamentary documents, generally the costs of all parties will be paid from the estate. If the court finds challenge to the will was reasonable, for example because it was precipitated by highly “suspicious circumstances” surrounding the preparation of the will, typically the court will not make an order for costs against the unsuccessful party. With the exception of these prescribed circumstances, an action relating to the validity of a will is properly characterized as an adversarial dispute among the affected parties and the usual rule that costs follow the event will apply. In keeping with this analytical approach, the current judicial trend in this province has been to characterize an action over the validity of a will as an adversarial dispute among the affected parties: Mawdsley; Woodward v. Grant, 2007 BCSC 1549 at para. 16. 7 Although I concluded that Mr. Kong had not exhausted his moral duty towards Tak-Ching (known as Tak) and Tak-Shing (the two successful plaintiffs), I was mindful that Mr. Kong’s clear intent was to leave everything to Jackson. I awarded each of Tak and Tak-Shing a modest 5% share of Mr. Kong’s estate. I rejected the plaintiffs’ claims based on undue influence. 8 Taking into account the factors reviewed by Justice Dardi in Chang Estate, I am not satisfied that either Mr. Kong or the beneficiaries of his will are the cause of the litigation. As such, costs should not be awarded from the estate.

Special Costs 9 I am not satisfied that Jackson has established that an award of special costs for any part of the action is justified. He relies on the following cases to assert his entitlement to special costs: Garcia v. Crestbrook 72 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

Forest Industries Ltd., [1994] B.C.J. No. 2486 (B.C. C.A.); Chang Es- tate; McLean v. Gonzalez-Calvo, 2007 BCSC 648 (B.C. S.C. [In Cham- bers]); and Stanton v. Stanton Estate, 2008 BCSC 470 (B.C. S.C.). 10 There is little dispute about the legal principles on special costs. The award should only be made in exceptional circumstances, which generally include those where the court concludes an element of deterrence or punishment is necessary because the litigant has engaged in reprehensible conduct. “Reprehensible” is understood to mean scandalous or outra- geous, as well as milder forms of misconduct that deserve rebuke or re- proof: Chang Estate at paras. 41-42. In paragraph 43 of Chang Estate, Justice Dardi goes on to set out a summary of the principles from Justice Gropper’s decision in Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352 (B.C. S.C.): In Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352, Madam Justice Gropper canvassed the jurisprudence on special costs and provided a helpful distillation of the key principles: [73] ... Based upon my review of the authorities, I have derived the following principles for awarding special costs: a) the court must exercise restraint in awarding spe- cials costs; b) the party seeking special costs must demonstrate exceptional circumstances to justify a special costs order; c) simply because the legal concept of “reprehensibility” captures different kinds of misconduct does not mean that all forms of misconduct are encom- passed by this term; d) reprehensibility will likely be found in circumstances where there is evidence of improper motive, abuse of the court’s process, misleading the court and persistent breaches of the rules of professional conduct and the rules of court that prejudice the applicant; e) special costs can be ordered against parties and non-parties alike; and f) the successful litigant is entitled to costs in accordance with the general rule that costs follow the event. Special costs are not awarded to a success- Kong v. Kong Sharma J. 73

ful party as a “bonus” or further compensation for that success. 11 In McLean, the court refers to two lines of cases where special costs have been awarded against the plaintiff: (i) estate cases alleging undue influence, and (ii) cases bound to fail: McLean at para. 15. On my reading of all of the cases referred to me, however, no one factor is determinative in any case; rather, the court must examine all the circumstances in their proper context. 12 In relation to the first line of cases referred to in McLean, Justice MacKenzie discusses a number of cases where special costs were awarded because of an unsuccessful allegation of undue influence. The defendants point to Kouwenhoven Estate v. Kouwenhoven, 2001 BCSC 1402 (B.C. S.C.) (referred to in McLean at paras. 21-22) where the court commented that the plaintiff’s decision to litigate was motivated by dislike towards the defendant. That dislike was found to be an insufficient basis upon which to base litigation; special costs were awarded to the defendant. Jackson draws a parallel to this case because the unsuccessful plaintiffs (Matthew and Jack) had animus towards Jackson (see decision after trial para. 122). 13 In my view, the plaintiff’s conduct in Kouwenhoven Estate was more blameworthy. In addition to the allegation of undue influence, the plaintiff knew from a medical report that the testator had capacity to make the will, but still pursued a claim that the testator lacked capacity when the will was signed. The plaintiff also alleged forgery, and the judge in that case concluded the plaintiff’s case was based on “speculation and innu- endo”: Kouwenhoven Estate at para. 2. 14 The case before me was not as extreme. Although there was animus amongst the brothers, I do not see as direct a link between that animus and positions taken in this litigation. While I made findings that question the credibility of Matthew and Jack with regard to certain events in the case, I did not find their conduct or testimony to be reprehensible. It is true that Matthew made serious allegations impugning the character of his father, but those were made in relation to the prior litigation over who should be appointed committee of Ms. Kong before she died. That litigation (and some other events) led to significant disharmony between Mat- thew and Mr. Kong. 15 I also think it is relevant to consider comments about Jackson’s conduct. I noted (at paras. 120-121) that Jackson did not communicate with the plaintiffs when his father’s cancer returned, and was evasive about 74 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

his father’s whereabouts when his mother died. I found his behaviour demonstrated poor judgment, but was not malicious. Nonetheless, I think that behaviour is relevant to any assessment of Matthew and Jack’s conduct. 16 In relation to the second line of cases referred to above, the Court of Appeal stated in Garcia that an action that has little merit does not justify on its own an award of special costs. Instead the litigant must prove something more, such as improper allegations of fraud or improper conduct: Garcia at para. 23. 17 The defendant relies on the Stanton case for the proposition that where an allegation of undue influence fails because of a complete lack of evidence, special costs are warranted. However, the Court of Appeal overturned the trial judge on the award of special costs: Stanton v. Stanton Estate, 2008 BCCA 362 (B.C. C.A.). I acknowledge that reversal may have been because the issue was not pursued in the Court of Appeal with the same vigour as it was in front of the trial judge but the award was nevertheless overturned (at para. 12). More importantly, in this case I do not think the plaintiffs’ claim of undue influence completely lacked evidence. 18 In Chang Estate, Justice Dardi noted at para. 50 that: [w]hether a failed allegation of undue influence is sufficiently reprehensible that it warrants the court’s condemnation through a special costs award depends on the particular circumstances. 19 In Chang Estate special costs were awarded, but conduct in that case included the failure of the litigant to show up at trial, and ignoring or failing to comply with court directions. 20 Taking all these considerations into account, in my view this is not an appropriate case for an award of special costs.

Is an award of costs in favour of the defendant justified? 21 The plaintiffs suggested that because success was split, there ought to be no award for costs in this case. I do not agree. In my mind this is an appropriate case for the defendants to recover all their costs from the plaintiffs. 22 Although two of the plaintiffs were successful, in my view they were the two plaintiffs that were least involved in the litigation, so their success was not due to their efforts. In particular, one of them was in Hong Kong and I found him to be disabled. It is therefore questionable how Kong v. Kong Sharma J. 75

much involvement he had with the litigation. At paragraph 94, I observed that the two successful plaintiffs “presented as somewhat unsophisticated people” compared to the other two plaintiffs. 23 Moreover Tak and Tak-Shing’s success turned on whether Mr. Kong had exhausted his moral obligation to his adult children. In the discussion of the testator’s moral duty at paragraphs 75-82, I noted some lack of clarity in the law regarding what type of evidence can be viewed, and whether the test was completely objective or not. The plaintiffs argued the evidence relevant to the issue was restricted and supported their position. I disagreed and determined that Mr. Kong’s statement to Mr. Lew was not the only evidence I could consider. Yet, two of the plaintiffs succeeded notwithstanding their approach to the evidentiary issue was one I did not accept. This was a subtlety that only emerged during final submissions and deliberation.

Conclusion 24 In all these circumstances, I find it appropriate that the defendant Jackson Kong be awarded costs from the plaintiffs on the usual scale. Order accordingly. 76 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

[Indexed as: Royal Trust Corp. of Canada v. University of Western Ontario] In the Estate of Victor Hugh Priebe, Deceased Royal Trust Corporation of Canada, Applicant and The University of Western Ontario, University of Windsor, Windsor Public Library, Hotel-Dieu Grace Healthcare, Windsor Regional Hospital and Office of the Public Guardian and Trustee, Respondents Ontario Superior Court of Justice Docket: 2017/15 ES 2016 ONSC 1143 A.K. Mitchell J. Heard: February 3, 2016 Judgment: February 16, 2016 Estates and trusts –––– Estates — Legacies and devises — Conditional gifts — Grounds for invalidity — Public policy grounds — Miscellane- ous –––– Testator’s will established several charitable trusts — One provision sought to provide awards and bursaries subject to restrictions — Recipients of two bursaries had to be caucasian, single and heterosexual and female recipients could not be feminist — Trustee sought opinion, advice and direction of court on questions arising out of restrictive provision in last will and testament — Will did not provide trustee with discretion to choose whether or not to disperse funds for purposes of restrictive provision — Restrictive provision of will was void as being contrary to public policy by virtue of it being discriminatory on basis of race, gender and sexual orientation — Restrictive provision could not be saved by applying doctrine of cy pres — Will required that upon court’s declaration that qualifications were void as being contrary to public policy charitable trust failed in its entirety and was to be deleted — Beneficiaries of other charitable trusts established in will were to receive funds. Cases considered by A.K. Mitchell J.: Canada Trust Co. v. Ontario (Human Rights Commission) (1990), 69 D.L.R. (4th) 321, 12 C.H.R.R. D/184, 74 O.R. (2d) 481, 38 E.T.R. 1, (sub nom. Leonard Foundation Trust, Re) 37 O.A.C. 191, 1990 CarswellOnt 486, [1990] O.J. No. 615 (Ont. C.A.) — followed Goodman Estate v. Geffen (1991), [1991] 5 W.W.R. 389, 42 E.T.R. 97, (sub nom. Geffen v. Goodman Estate) [1991] 2 S.C.R. 353, 125 A.R. 81, 14 W.A.C. 81, 80 Alta. L.R. (2d) 293, (sub nom. Geffen v. Goodman Estate) 81 Royal Trust Corp. of Can. v. University of Western Ont. A.K. Mitchell J. 77

D.L.R. (4th) 211, 127 N.R. 241, [1991] S.C.J. No. 53, 1991 CarswellAlta 91, 1991 CarswellAlta 557, EYB 1991-85679 (S.C.C.) — referred to Statutes considered: Charities Accounting Act, R.S.O. 1990, c. C.10 s. 10 — referred to Trustee Act, R.S.O. 1990, c. T.23 s. 60 — referred to Rules considered: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 R. 14.05(3)(a) — considered R. 14.05(3)(b) — considered R. 14.05(3)(d) — considered

RULING on questions arising out of restrictive provision in last will and testament.

B. Duewel, for Applicant D. Desante, for Respondent, Office of the Public Guardian and Trustee

A.K. Mitchell J.: Nature of the Application 1 Pursuant to s. 60 of the Trustees Act1 , s. 10 of the Charities Account- ing Act2 and Rules 14.05(3)(a),(b) and (d) of the Rules of Civil Proce- dure3 , the applicant, Royal Trust Corporation of Canada, Trustee of the estate of Victor Hugh Priebe (the “Trustee”), seeks the opinion, advice and direction of the court upon the following questions arising out of the last will and testament of Dr. Priebe dated July 20, 1994: (a) does the Will provide the Trustee with a discretion to choose whether or not to disperse funds for the purposes of paragraph 3(d)(ii)(E) of the Will? (b) Are any of the provisions in paragraph 3(d)(ii)(E) of the Will void or illegal or not capable of being lawfully administered by the trustee because they are contrary to public policy, discriminatory on the basis of race, creed, citizenship, ancestry, place of origin,

1 R.S.O. 1990, c. T.23. 2 R.S.O. 1990, c. C.10. 3 R.R.O. 1990, Reg. 194. 78 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

colour, ethnic origin, sexual orientation, or otherwise and/or uncertain? (c) If so, who is entitled to the trust funds under the Will? (d) Is there a general charitable intention expressed in the Will sufficient to permit the court to exercise its inherent jurisdiction in the matter of charitable trusts and direct that the trust be administered cy-pres? (e) If the court exercises its inherent jurisdiction to direct that the trust be administered cy-pres, how should the Trustee administer the trusts? 2 The respondents, The University of Western Ontario, University of Windsor, Windsor Public Library, Hotel-Dieu Grace Healthcare and Windsor Regional Hospital take no position on the application. 3 Applicant’s counsel advises that, as a courtesy, the Human Rights Commission was served with a copy of the application record. The Com- mission did not appear on the return of the application and takes no position on the application. 4 The Office of the Public Guardian and Trustee asks the court that when giving its advice and direction to the Trustee the court declare paragraph 3(d)(ii)(E) of the Will void as being contrary to public policy. 5 It is important to note that the position taken by The Office of the Public Guardian and Trustee is not opposed by the Trustee. The Trus- tee’s position on the application is neutral in all respects. The Trustee seeks only such advice and direction of the court as will permit the Trus- tee to fulfil its duties and obligations in administering the estate of Dr. Priebe in accordance with the provisions of the Will. 6 Immediately following receipt of submissions on the application, I declared paragraph 3(d)(ii)(E) void as being contrary to public policy by virtue of it being discriminatory on the basis of race, gender and sexual orientation and held that this provision of the Will cannot be saved by applying the doctrine of cy-pres. I made these findings with written reasons to follow. These are those reasons.

Background 7 Dr. Priebe died on January 1, 2015. Royal Trust was appointed estate trustee pursuant to a Certificate of Appointment of Estate Trustee with a Will issued August 4, 2015. Royal Trust Corp. of Can. v. University of Western Ont. A.K. Mitchell J. 79

8 The Will contains, inter alia, the following provisions in respect of which the Trustee seeks the court’s opinion, advice and direction: Paragraph 3(d)(ii): My Trustee shall expend the balance of the income of my estate, and all income of my estate following the death of my sister, in the sole discretion of my Trustee, but after consultation with its Windsor Advisory Board, for so long as it exists, and thereafter, with a committee comprised of senior trust administrators of my Trustee and no more than two persons not ordinarily employed by my Trustee, such persons to be chosen from those with a science, industry or medical background, other than academics, administrators and government officials, for such one or more of the following purposes, it being my intention that my Trustee in its sole discretion may in any one year allocate a portion or all of the income to one or more of the following purposes so long as it is following a plan, to be updated from time to time to carry out all such purposes at such time and times as it determines: ... (E) To provide funds, from time to time and in the discretion of my Trustee for awards or bursaries to Caucasian (white) male, single, heterosexual students in scientific studies, including medicine, ge- netics, biology, chemistry, physics and those going into medical pharmacology research. The selection of these students shall be made by my Trustee’s Windsor Advisory Board, or with the committee it constitutes pursuant to this paragraph 3(d)(ii). It is my wish hereby expressed that the committee in determining the terms of such awards or bursaries that they take into consideration academic achievement, but not necessarily the highest marks, but a minimum cumulative average of at least 10.0 (B+) and an honest desire to work and achieve in his or her chosen profession and be of good character. Extracurricular activities (i.e. non-academic) of the applicant shall not be taken into consideration in qualifying a student for purpose of these awards or bursaries. In addition, students with the necessary academic qualifications who through work histories have demonstrated that they are not afraid of hard manual work in their selection of summer employment shall be given special consideration in the selection process. If no paid employment is available, then a full-time voluntary manual labour job may be considered as a substitute. These awards shall be directed to students who are going to attend the Uni- versity of Western Ontario or those for whom it may be a hardship to go to the University of Western Ontario then they can be awarded to these particular students who wish to attend the University of Wind- sor. No awards to be given to anyone who plays intercollegiate 80 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

sports. Further, to similarly provide funds for an award to be known as the Ellen O’Donnel Priebe Memorial Award in the discretion of my trustee, under the same terms as the awards above, except this award is to go to a hard-working, single, Caucasian white girl who is not a feminist or lesbian, with special consideration, if she is an immigrant, but not necessarily a recent one. This award is for someone going into a field the scientific study (not medicine) on the terms outlined above for the male applicants. The awards, at the discretion of the Trustee may be for some or all of the tuition payable by such applicants in the year of the award applicants must reapply if these are desired in subsequent years and the Trustee will reassess each candidate at that time to evaluate their academic progress and adher- ence to remaining single. The number of the awards or bursaries available shall be determined at the discretion of the Trustee depending on the amount of award available for this purpose. The awards or bursaries may be paid directly to the University to be attended by an award recipient on account of tuition. ... (G) In the event that one or more of the foregoing provisions shall be declared to be of a non-charitable nature, or, if the qualifications set forth for receipt of an award referred to above are adjudged by a court of competent jurisdiction to be void for public policy, then the provision for such gift shall be deleted without prejudice to the remaining provisions of this paragraph 3(d)(ii). (emphasis added)

Analysis 9 The Trustee and the Office of the Public Guardian and Trustee both agree that pursuant to paragraph 3(d)(ii) set forth above, the Trustee only retains discretion as to which of the charitable purposes described in paragraphs 3(d)(ii)(A) through (F) it will direct income in any given year. This paragraph does not grant the Trustee discretion to disregard any one or more of the charitable purposes/trusts described in paragraph 3(d)(ii). For greater clarification, the Trustee cannot simply disregard the charitable trust established by paragraph 3(d)(ii)(E). 10 As a precondition to the Trustee having recourse to paragraph 3(d)(ii)(G) of the Will, the court must find that paragraph 3(d)(ii)(E) is contrary to public policy and, therefore, void. This is the central issue on this application. Royal Trust Corp. of Can. v. University of Western Ont. A.K. Mitchell J. 81

11 The leading authority is Canada Trust Co. v. Ontario (Human Rights Commission) [1990 CarswellOnt 486 (Ont. C.A.)].4 In that case, the indenture, under which the inter vivos trust was created, contained four recitals relating to race, religion, citizenship, ancestry, ethnic origin and colour with respect to the persons eligible to receive scholarships under the will. One recital stated: “The Settlor believes that the white race is, as a whole, best qualified by nature to be entrusted with the development of civilization and the general progress of the world along the best lines.” 12 The Ontario Court of Appeal in Canada Trust Co. found the charitable trust to be void on the ground of public policy to the extent that it discriminated on the ground of race (colour, nationality, ethnic origin), religion and sex.5 13 As a guiding principle, the court in Canada Trust Co. stated that each trust must be evaluated on a case-by-case basis should its validity be challenged and cautioned that not all restrictions amount to discrimination and are therefore contrary to public policy. 14 I have no hesitation in declaring the qualifications relating to race, marital status, and sexual orientation and, in the case of female candi- dates6 , philosophical ideology, in paragraph 3(d)(ii)(E) of the Will void as being contrary to public policy. Although it is not expressly stated by Dr. Priebe that he subscribed to white supremacist, homophobic and mis- ogynistic views as was the case in the indenture under consideration in Canada Trust Co., the stated qualifications in paragraph 3(d)(ii)(E) leave no doubt as to Dr. Priebe’s views and his intention to discriminate on these grounds. 15 With respect to the application of the doctrine of cy-pres, it was envi- sioned (quite rightly) by Dr. Priebe that the qualifications for receipt of an award or bursary under paragraph 3(d)(ii)(E) might offend public policy. He included in the Will a paragraph permitting the Trustee to seek the court’s declaration in this regard which the Trustee has now done. The doctrine of cy-pres can have no application in the present case because the Will contains an express provision as to the consequences of a

4 1990 CanLII 6849 at 22 5 However, the court applied the cy-pres doctrine and brought the educational trust into accord with public policy by removing the offending restrictions. In doing so, the charitable trust was maintained. 6 In a derogatory manner female candidates are referred to as “girls”. 82 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

declaration by the court that the qualifications for entitlement of an award or bursary are void as against public policy. In the face of such a declaration, the Will requires that the “provision for such gift shall be deleted without prejudice to the remaining provisions of this paragraph 3(d)(ii)”. (emphasis added) 16 Having found that the qualifications for receipt of an award or bursary under paragraph 3(d)(ii)(E) are discriminatory on the basis of marital status, gender, race and sexual orientation and therefore void on the ground of public policy, I am bound to give effect to the intentions of the testator under paragraph 3(d)(ii)(G) and delete the charitable trust established under paragraph 3(d)(ii)(E). 17 In summary, the court’s advice and directions on the questions under the Will posed by the Trustee are as follows: (a) Does the Will provide the Trustee with a discretion to choose whether or not to disperse funds for the purposes of paragraph 3(d)(ii)(E) of the Will? No. (b) Are any of the provisions in paragraph 3(d)(ii)(E) of the Will void or illegal or not capable of being lawfully administered by the trustee because they are contrary to public policy, discriminatory on the basis of race, creed, citizenship, ancestry, place of origin, colour, ethnic origin, sexual orientation, or otherwise and/or uncertain? Yes. The qualifications relating to race, gender, marital status and sexual orientation in paragraph 3(d)(ii)(E) are void as being contrary to public policy. (c) If so, who is entitled to the trust funds under the Will? The beneficiaries of the other charitable trusts established in paragraphs 3(d)(ii)(A),(B),(C),(D) and (F) of the Will. (d) Is there a general charitable intention expressed in the Will sufficient to permit the court to exercise its inherent jurisdiction in the matter of charitable trusts and direct that the trust be administered cy- pres? No. The Will requires that upon the court’s declaration that the qualifications are void as being contrary to public policy the charitable trust established in paragraph 3(d)(ii)(E) fails in its entirety and is to be deleted. (e) If the court exercises its inherent jurisdiction to direct that the trust be administered cy-pres, how should the Trustee administer the trusts? Royal Trust Corp. of Can. v. University of Western Ont. A.K. Mitchell J. 83

Not relevant given the court’s decision in (d).

Costs 18 Both parties acknowledge the other’s entitlement to its respective costs of the application. 19 The Office of Public Guardian and Trustee submitted a Costs Outline to support its claim for partial indemnity costs of responding to the application in the amount of $5,904.25 inclusive of disbursements and HST. The Trustee does not object to the quantum claimed and, accordingly, the Office of the Public Guardian and Trustee shall be paid its costs of the application in the all-inclusive amount of $5,904.25 from the estate of Victor Hugo Priebe, deceased. 20 The Trustee submitted a Costs Outline to support its claim for full indemnity costs of the application7 in the amount of $16,155.49 inclusive of disbursements and HST. The Office of the Public Guardian and Trus- tee does not object to the quantum claimed or the reasonableness of those costs. I am satisfied that the application was necessary and the time spent by the various timekeepers and rates charged by those timekeepers were reasonable given the importance of the issues to a proper administration of this estate. Accordingly, Royal Trust, as Trustee of the Estate of Dr. Priebe, shall be paid its costs of the application in the all-inclusive amount of $16,155.49 from the estate of Victor Hugo Priebe, deceased. Order accordingly.

7 Trustees are entitled to be fully indemnified for all legal costs reasonably in- curred on behalf of the estate. See Goodman Estate v. Geffen, [1991] 2 S.C.R. 353 (S.C.C.) at para. 75. 84 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

[Indexed as: Leniuk Estate, Re] In the Matter of the Estate of Arthur Leniuk, deceased British Columbia Supreme Court Docket: Prince Rupert 9475 2016 BCSC 159 Punnett J. Heard: January 11, 2016 Judgment: January 14, 2016 Estates and trusts –––– Trustees — Nature of trustee’s office — Appoint- ment of new trustees — Under statutory power –––– Under deceased’s will, child who was now 16 years old was left interest in estate subject to trust until she reached 19 years of age — Executors and trustee of estate wanted to complete final distribution of estate and wind it up — Executors and trustees applied for order under Family Law Act that child’s guardian, who was deceased’s daughter, be appointed trustee to receive and hold all property that child was entitled to receive from estate in trust on child’s behalf — Application dismissed — Part 8 of Act did not apply in this situation, as provisions were not intended to and did not override trust instruments — Act addressed situation where there was property to which child was entitled but only had guardian and there was no existing trustee — Where property exceeded prescribed amount, guardian was not deemed to be child’s trustee just because they were guardian, and application was required to determine who appropriate trustee should be — Purpose of provisions of Act was to ensure that there was trustee to protect interests of child — Where there was no trustee and where property exceeded certain value, guardian could be appointed trustee — Here there was no uncertainty over who was child’s trustee, as will established trust and trustees — Terms of instrument governed trust, and deceased’s will provided that guardian could receive child’s property and could grant discharge — In accepting receipt from guardian, trustees would be acting in accordance with terms of will and trust such that it would be valid discharge — Trustees’ attempt to delegate their duties as trustees to guardian was effectively request for order that amounted to variation of will — As trust instrument addressed issue of advancing funds to guardian and obtaining valid receipt, there was no need for court application. Statutes considered: Family Law Act, S.B.C. 2011, c. 25 Generally — referred to Pt. 8 — referred to s. 175 “person having a duty to deliver property to a child” (a) — considered Leniuk Estate, Re Punnett J. 85

s. 175 “person having a duty to deliver property to a child” (b) — considered ss. 175-179 — considered s. 176 — considered s. 178(6)(a) — considered s. 179 — considered s. 179(1)(b) — considered s. 179(1)(b)(ii) — considered s. 179(4) — considered Infants Act, R.S.B.C. 1996, c. 223 Generally — referred to

APPLICATION by executors and trustees of estate of deceased for order that guardian of child beneficiary be appointed trustee to receive and hold all property that child was entitled to receive from estate.

N. Aram, for Applicant Estate Executors, Irene Zak and Angie Vallentgoed P.M.J. Johnston, for Kelly Ann Stenset

Punnett J. (orally):

1 The applicants Irene Zak and Angie Vallentgoed are the executors and trustees of the estate of Arthur Leniuk, deceased. They apply for an order that Kelly Ann Stenset, the guardian of the child beneficiary Syd- ney Grace Stenset, be appointed as a trustee to receive and hold in trust on the child’s behalf all property that the child is entitled to receive from the estate. 2 The application is brought pursuant to Part 8 of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. At issue is whether Part 8 applies where a will appoints a trustee with power to administer the property of a child. 3 The position of the Public Guardian and Trustee, as stated in their letter to counsel, is that the Will is paramount and Part 8 of the FLA does not apply.

Background 4 The deceased’s will dated June 19, 2008, a codicil dated December 15, 2008 and a further codicil dated January 23, 2014, appointed the applicant’s as co-executors and trustees. A grant of probate was issued on September 12, 2014. The will provides that 20% of the residue of the estate be divided into equal shares among the deceased’s grandchildren, only one of whom, Sydney Grace Stenset, remains a child having been born on July 29, 1999. She is now 16 years of age. 86 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

5 The relevant provisions in the Will empowering the trustees with respect to the child’s share are as follows: 4. IF ANY PERSON should become entitled to any share in my estate before attaining the age of nineteen (19) years, the share of such person shall be held and kept invested by my estate and the income and capital or so much thereof as my Trustee in her absolute discretion considers necessary or advisable shall be used for the benefit of such person until he or she attains the age of nineteen (19) years. 5. I AUTHORIZE my Trustee to make any payments for any person under the age of nineteen (19) years to a guardian of such person whose receipt shall be a sufficient discharge to my said Trustee. 6 The applicants seek to have Kelly Ann Stenset, the daughter of the deceased and the guardian of Sydney Grace Stenset appointed as trustee so that the applicants may deliver the portion of the estate held in trust for Sydney Grace Stenset to Kelly Ann Stenset in her capacity as a trustee. Under the FLA she would then be authorized to receive that property and to provide a valid discharge to the executors. 7 In addition to the question of the application of Part 8 the reason given for the application is that if the executors continue to hold Sydney Grace Stenset’s share in the estate, the final distribution of the estate cannot be completed, the estate cannot be wound up and the estate will continue to be charged with the cost and expense of its administration until the child reaches 19 years of age. 8 The child Sydney Grace Stenset’s interest in the estate is approximately $15,000.

Law 9 At common law a receipt signed by a minor beneficiary was not a valid receipt. As a result applications under the inherent jurisdiction of the courts became necessary to release funds for the maintenance and advancement of infants. These powers were later reduced to statutory form in the Infants Act, R.S.B.C. 1996, c. 223. 10 Sections 175-179 of the FLA, provides: Definitions 175 In this Division and the regulations made under section 248(1)(c) [general regulation-making powers] “deliver property” includes pay money; “person having a duty to deliver property to a child” means a person who Leniuk Estate, Re Punnett J. 87

(a) is under a duty to deliver property to a child or (b) would be under a duty to deliver property to a child if the child were an adult; “trust instrument” means a will, a deed, a declaration or another written record by which a person creates a trust; “trustee” means a person authorized under (a) a trust instrument, (b) this Act or any other enactment, or (c) an order made under this Act or any other enactment to receive or hold property in trust for a child. Guardian not automatically entitled to receive property 176 Except as set out in section 178 [delivery of small property], a child’s guardian is not, by reason only of being a guardian, (a) a trustee of the child’s property, or (b) entitled to give a valid discharge on receiving property on behalf of the child. Delivery of any property to trustee 177 A person having a duty to deliver property to a child may discharge the duty by delivering the relevant property to a trustee who is authorized to receive that property. Delivery of small property 178 (1) This section does not apply to any of the following property: (a) property that a trustee has authority to receive or hold for a child; (b) property whose value is more than the prescribed amount; (c) property that is within a prescribed class of property. (2) A person having a duty to deliver property to a child may discharge the duty by (a) delivering the relevant property (i) to the child, if the child has a duty to support another person, or (ii) to a guardian having parental responsibilities with respect to the child as set out in section 41 (a) [parental responsibilities], and 88 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

(b) obtaining an acknowledgment in the prescribed form from the person to whom the property is delivered. (3) A person who delivers property in accordance with subsection (2) is entitled to rely on a representation in the acknowledgment received under subsection (2) (b). (4) Despite subsection (2) (a), a child or guardian may not receive property under that subsection if receiving the property would cause the child to hold, or the guardian to hold on behalf of the child, property whose value exceeds the amount prescribed for the purposes of subsection (1) (b). (5) A guardian who receives property under this section holds the property in trust for the child. (6) Nothing in this section (a) affects the duty of a trustee to deal with trust property in accordance with the terms of the trust, or (b) prevents a person having a duty to deliver property to a child from discharging the duty by delivering the property to the Public Guardian and Trustee in trust, if the Public Guardian and Trustee is willing to accept the property. Appointment of trustee by Supreme Court 179 (1) Subject to subsection (2), the Supreme Court on application may appoint one or more persons as trustees over (a) particular property to which the child is entitled, including any property derived from the property or from the disposition of the property, or (b) all property to which the child is entitled at the time the order is made and to which the child becomes entitled while the order is in effect, except property (i) identified in the order, or (ii) over which a trustee already has authority. (2) The Supreme Court may appoint a trustee only if satisfied that it is in the best interests of the child to do so, on consideration of all of the following: (a) the apparent ability of the proposed trustee to administer the property; (b) the merits of the proposed trustee’s plan for administering the property; Leniuk Estate, Re Punnett J. 89

(c) the views of the child, unless it would be inappropriate to consider them; (d) the personal relationship between the proposed trustee and the child; (e) the wishes of the child’s guardians; (f) the written comments of the Public Guardian and Trustee; (g) the potential benefits and risks of appointing the proposed trustee to administer the property compared to other available options for administering the property; (h) if the Supreme Court is considering making an order under subsection (1) (b), that the interests of the child are likely better served by an order made under that subsection than by an order made under subsection (1) (a). (3) An order made under this section to appoint a trustee may do one or more of the following: (a) require the trustee to deliver the trustee’s accounts at specified intervals for the examination and approval of the court; (b) limit the duration of the trusteeship; (c) specify or limit the types of investment in which the trustee may invest the property; (d) provide for compensation of the trustee including, without limitation, setting rates and specifying when the compensation may be taken; (e) require the trustee to give security in any form the court directs; (f) make any other order the court considers appropriate. (4) Except as provided for in an order made under this section, the Trustee Act applies to the trustee and the trust.

Discussion 11 Directions of the Court are sought because it is submitted that the executors and trustees are persons “having a duty to deliver property to a child” as defined in s. 175 either because there is an existing duty to deliver the property to a child or because they would be under a duty to deliver property to a child if the child were an adult. (ss. 175 (a)(b)). 90 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

12 That however is not determinative given Part 8 of the FLA does not, in my view, apply in this situation. I say this for a number of reasons. 13 Section 176 provides that a guardian, simply because they are a guardian, is not a trustee of a child’s property. As a result someone else can be trustee of the child’s property. Hence, a trust instrument, such as a will, that states a guardian is to receive a child’s property and is empow- ered to grant a discharge is not contrary to the section. Indeed s. 176 by its very wording recognizes this as it provides “by reason only of being a guardian”. (Emphasis added) 14 In my opinion the FLA provisions were not intended to, nor do they, override trust instruments. For public policy reasons, the Legislature saw fit to provide that the FLA address the situation where there is property to which a child is entitled but the child only has a guardian and there is no existing trustee. In circumstances where the property exceeds the prescribed amount in the small property exception the child’s guardian is not deemed to be the child’s trustee simply because they are a guardian. An application to the Court is required in order to determine who the appropriate trustee should be. Section 179 provides the factors the Court should consider when appointing a child’s trustee. Similar to other provisions in the FLA, the best interests of the child are paramount. An example of a situation when this might occur would be if a child received property from a relative who died intestate. 15 Given the significant repercussions if the FLA provisions were intended to override existing trusts, in my opinion the legislature would have addressed that explicitly. Since the FLA provisions when dealing with “small property” were clearly addressing issues of proportionality I cannot accept that it was intended that existing trusts would have to apply to appoint a guardian a trustee in order to deliver property to a child. The potential number of applications would undoubtedly be significant and the cost substantial. In addition it would result in an inappropriate layering of trustee on top of trustee. Finally, it would be contrary to the express terms of the trust representing the wishes, in this case, of the testator. 16 The Provincial Ministry’s comments found in British Columbia Fam- ily Law Practice 2016, (Markham: LexisNexis Canada Inc., 2015) at 777- 778 indicate that the sections are intended to help families manage certain types of property belonging to children. However, there is no indica- Leniuk Estate, Re Punnett J. 91

tion that the sections were intended to override existing valid trust instruments. ... Ministry Comment: The children’s property regime in the FLA allows parents and guardians to manage children’s property under a certain value without the need for a court order appointing them as trustees. The monetary limit for this will be established by regulation. The legislation also sets out criteria to govern the court appointment of trustees where the trust is larger. The children’s property regime is largely modeled after Alberta’s Minors’ Property Act. The children’s property regime is intended to promote the value of family autonomy by allowing a guardian (usually a parent) to manage small trusts for their children. In this way, families can avoid the fees associated with professional trustees. At the same time, to reduce the risk of mismanagement of the child’s property, the FLA builds in safe guards, including limits on the value and the type of property that the guardian may manage without court appointment, as well as the use of written acknowledgements for the receipt of property. ... Section 176 clarifies the law that a parent or guardian is not automatically a trustee of a child’s property. This does not change the law. Under the FRA, a parent or guardian must have been appointed a trustee in order to administer their children’s trusts. ... 17 Part 8 also recognizes in s. 175 that a trust instrument includes a will and that trustees are authorized under such an instrument to receive or hold property in trust for a child. In other words, such a trustee is included in the definition of trustee just as is a trustee appointed under the FLA. 18 In addition Part 8 acknowledges a trust instrument’s priority over the provisions of the FLA. For example, s. 178(6) of the FLA dealing with the delivery of small property provides: 178 ... (6) Nothing in this section (a) affects the duty of a trustee to deal with trust property in accordance with the terms of the trust, ...... 92 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

19 Section 179, the appointment of a trustee by the Supreme Court provision, also contains an exception in s. 179(1)(b) which provides: 179 (1) Subject to subsection (2), the Supreme Court on application may appoint one or more persons as trustees over ... (b) all property to which the child is entitled at the time the order is made and to which the child becomes entitled while the order is in effect, except property (i) identified in the order, or (ii) over which a trustee already has authority. (Emphasis added) 20 Finally, s. 179(4) states: 179 ... (4) Except as provided for in an order made under this section, The Trustee Act applies to the trustee and the trust. 21 To assert that children’s property advanced to a guardian by anyone is caught by these sections extends the FLA provisions beyond their purpose and the problem they were intended to address. The purpose of these sections is to ensure that there is a trustee to protect the interests of the child, whether that is the guardian as trustee or another person does not matter. The point is to have someone responsible for the infant’s funds and to address the fact, that often for various practical reasons, it is desirable for the guardians to have the funds. Where there is no trustee and where the property exceeds a certain value, the guardian can be appointed as trustee. 22 This is not a situation where there is uncertainty over who is the infant’s trustee. It is the trust instrument (the Will) that establishes the trust and names the trustees. It is the terms of that instrument that govern the trust. As long as the trustees comply with the terms of the trust they are protected. In accepting a receipt from the guardian they would be acting in accordance with the terms of the will and the trust and as a result that would be a valid discharge. 23 The trustees are in this instance attempting to delegate their duties as trustees to a third party. In effect they are seeking an order that amounts to a variation of the Will. 24 As a result, where the trust instrument addresses the issue of advancing funds, whether income or capital, to a guardian and addresses the obtaining of a valid receipt there is no need for a court application. Leniuk Estate, Re Punnett J. 93

25 With respect to the issue of costs the Public Guardian and Trustee suggested costs should not be recoverable from the estate because the application was unnecessary. While I have determined the application is not required I accept that counsel in seeking directions from the Court was justified in doing so. I say this because the FLA provisions are new and do not appear to have been judicially considered. In addition counsel relied on the following from the Wills, Estates and Succession Act Tran- sition Guide published by the Continuing Legal Education Society of British Columbia: C. RIGHTS IN RELATION TO CHILDREN’S PROPERTY [[S.] 8.12] The Family Law Act also includes provisions that clarify the rights of guardians in relation to children’s property. In the estate context this is relevant as documents such as wills and trusts are often are drafted to permit an executor or trustee to make a payment to a guardian on behalf of a child as a valid discharge of his or her duties. Section 176 of the Family Law Act makes it clear that a child’s guardian is not entitled to give a valid discharge simply by virtue of being a guardian except where provided in the legislation (e.g., in relation to small gifts). Rather a person, such as an executor, who has a duty to deliver property to a child may discharge this duty by delivering the property to an authorized trustee. The Family Law Act then provides for how a trustee may be appointed by the court. As a court application may be costly and time consuming, in drafting wills and trust provisions in relation to minors, if it is intended that the executor or trustee should have the power to deliver property to the guardian on behalf of the minor and thus relieve themselves of any ongoing obligation in relation to that property, it will be necessary to include powers in the relevant document to enable the executor or trustee to appoint the guardian as a trustee rather than simply delivering property to him or her in his or her capacity as guardian. 26 As will be apparent from these reasons I have concluded the above is not the case where a valid trust instrument exists. In particular, in my opinion the suggestion that it is necessary to include powers in the relevant document to enable the executor or trustee to appoint a guardian as a trustee is incorrect in light of my finding that Part 8 simply does not apply to situations where the trust instrument already provides for the appointment of a trustee with authority to distribute the infant’s property and make payments to an infant’s guardian. 27 The applicants shall have their costs as special costs from the estate. Application dismissed. 94 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

[Indexed as: Kusch Estate v. Muller Estate] Jan Ostlund, as Executrix of the Estate of Rita Kusch, Applicant/Respondent by Counter-Application and Brian Dolan, as the Executor of the Estate of Olive Regina Marie Muller, Respondent/Applicant by Counter-Application Saskatchewan Court of Queen’s Bench Docket: Prince Albert QBS 18/14 2016 SKQB 69 D.E. Labach J. Judgment: March 1, 2016 Estates and trusts –––– Estates — Legacies and devises — Payment of legacies — Disclaimer by beneficiary –––– OM and RK were sisters — In her will OM appointed RK, and her nephew, BD, as joint executors of her estate — OM also executed power of attorney naming RK as her attorney — RK executed her own power of attorney in favour of JO, naming JO or her son JK as attorney — RK executed new will appointing JO as her executor or, alternatively, JK — JK began looking after all of financial affairs of RK and OM — OM passed away at age 97 — RK signed documents giving up her appointment as executor of OM’s estate, as well as any monetary gain received from estate of OM — RK passed away at age 92 — JO brought application taking issue with mental capacity of RK at time she relinquished her right to share in estate of OM — It was determined that trial of issue was required — There was conflicting evidence on issue of whether RK was mentally competent at time she signed handwritten disclaimer of her interest and later when signed typewritten disclaimer — RK could only disclaim her interest if she had disposing mind and memory — It was not possible to decide issue of capacity on basis of affidavit evidence filed — When court considered somewhat suspicious circumstances that resulted in creation of disclaimers, and that party standing to gain most from disclaimer prepared documents and his spouse witnessed RK’s signature, it reinforced decision that trial of issued was necessary — At trial, more and better evidence could be called and be subject to cross-examination so that serious issued could be properly resolved. Estates and trusts –––– Estates — Will challenges — Undue influence — What constituting –––– OM and RK were sisters — In her will OM appointed RK, and her nephew, BD, as joint executors of her estate — OM also executed power of attorney naming RK as her attorney — RK executed her own power of attorney in favour of JO, naming JO or her son JK as attorney — RK executed new will appointing JO as her executor or, alternatively, JK — JK began look- Kusch Estate v. Muller Estate 95 ing after all of financial affairs of RK and OM — OM passed away at age 97 — RK signed documents giving up her appointment as executor of OM’s estate, as well as any monetary gain received from estate of OM — RK passed away at age 92 — JO brought application, in part raising issue of whether executor of estate of OM, and/or his spouse, unduly influenced RK to disclaim her interest in estate of OM — Application dismissed in this respect — Besides making allegation in application, applicant did not provide shred of evidence that RK was actually unduly influenced or that there was presumption of undue influence at play — There was no evidence RK was manipulated or coerced to sign disclaimers or make statements attributed to her or that there was some relationship between RK and persons in question that gave rise to potential for domination or coercion to exist. Estates and trusts –––– Estates — Passing of accounts — Accounting — Miscellaneous –––– OM and RK were sisters — In her will OM appointed RK, and her nephew, BD, as joint executors of her estate — OM also executed power of attorney naming RK as her attorney — RK executed her own power of attorney in favour of JO, naming JO or her son JK as attorney — RK executed new will appointing JO as her executor or, alternatively, JK — JK began looking after all of financial affairs of RK and OM — OM passed away at age 97 — RK signed documents giving up her appointment as executor of OM’s estate, as well as any monetary gain received from estate of OM — RK passed away at age 92 — Executor of estate of OM brought application for accounting of RK’s actions as power of attorney for OM, accounting of JO’s and JK’s actions as power attorney for RK, and for JO to provide accounting of estate of RK — Estate of RK was ordered to provide accounting of four sales of OM’s real property that RK carried out as OM’s attorney — RK’s estate was not required to file full accounting of RK’s actions as OM’s power of attorney, but order for accounting limited to real estate transactions that RK brokered on OM’s behalf was required — Court was not prepared to make order that JO or JK provide accounting of their actions as power of attorney for RK to estate of OM — JO never made any decisions for RK as her attorney and while JK may have assisted his mother in having properties listed or sold, evidence was that RK made decisions regarding properties, she was competent to do so at time and she signed appropriate documents for properties to be sold — Court did not have authority under s. 55 of Trustee Act, 2009 to order that JO provide accounting of RK’s estate to executor of OM’s estate. Professions and occupations –––– Barristers and solicitors — Employment of lawyer — Representation by solicitor — Application for removal as solicitor of record –––– OM and RK were sisters — In her will OM appointed RK, and her nephew, BD, as joint executors of her estate — OM also executed power of attorney naming RK as her attorney — RK executed her own power of attorney in favour of JO, naming JO or her son JK as attorney — RK executed new 96 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

will appointing JO as her executor or, alternatively, JK — JK began looking after all of financial affairs of RK and OM — OM passed away at age 97 — RK signed documents giving up her appointment as executor of OM’s estate, as well as any monetary gain received from estate of OM — RK passed away at age 92 — Executor of OM’s estate brought application, in part for order removing law firm as counsel for estate of RK — Application dismissed in this respect — Counsel for RK’s estate had not stated that lawyer who was partner from firm would be called as witness for trial — All that was offered was conjecture that lawyer would be witness, and court was not even satisfied that this conjecture was very strong — It was not clear how lawyer’s dealings with RK in 2012 would have any bearing on her mental capacity 12 to 20 months later — There was no evidence that lawyer or his firm represented OM in sale of any of her real property — There was no conflict of interest. Civil practice and procedure –––– Discovery — Discovery of documents — Miscellaneous –––– OM and RK were sisters — In her will OM appointed RK, and her nephew, BD, as joint executors of her estate — OM also executed power of attorney naming RK as her attorney — RK executed her own power of attorney in favour of JO, naming JO or her son JK as attorney — RK executed new will appointing JO as her executor or, alternatively, JK — JK began looking after all of financial affairs of RK and OM — OM passed away at age 97 — RK signed documents giving up her appointment as executor of OM’s estate, as well as any monetary gain received from estate of OM — RK passed away at age 92 — Executor for OM’s estate brought application, in part for order directing that law firm disclose its files pertaining to will of RK and its files when they acted for OM — Application granted in part, in this respect — It was not shown that lawyer’s wills file for RK would be relevant — There was no suggestion that RK was not competent to execute her will in January 2012, and it was unclear how anything in wills file had bearing on issue of RK’s mental competence to sign renunciation of probate and disclaimer of her bequest in August 2013 — While there was no evidence that law firm represented OM in sale of her properties, if law firm did represent OM, files in this respect were OM’s files and there was no reason why her estate should not be entitled to them — No waiver of privilege was required — Any such files in possession of law firm had to be disclosed. Cases considered by D.E. Labach J.: Clausen v. Royal Inland Hospital (2003), 2003 BCSC 496, 2003 CarswellBC 741, [2003] B.C.J. No. 725 (B.C. S.C. [In Chambers]) — referred to Davie v. Davie Estate (2000), 2000 BCSC 1517, 2000 CarswellBC 2137, [2000] B.C.J. No. 2143, [2000] B.C.T.C. 813 (B.C. Master) — referred to Leger v. Poirier (1944), [1944] S.C.R. 152, [1944] 3 D.L.R. 1, 1944 Car- swellNB 11 (S.C.C.) — referred to Kusch Estate v. Muller Estate 97

Montreal Trust Co. v. Matthews (1979), [1979] 3 W.W.R. 621, 11 B.C.L.R. 276, 1979 CarswellBC 87, 99 D.L.R. (3d) 65 (B.C. S.C.) — referred to Mort v. Saanich School District No. 63 (1999), 1999 CarswellBC 4417, [1999] B.C.J. No. 386 (B.C. S.C.) — referred to Prokopetz v. Ruf (2008), 2008 SKQB 276, 2008 CarswellSask 434, (sub nom. Prokopetz Estate, Re) 319 Sask. R. 238 (Sask. Q.B.) — distinguished Saskatoon Credit Union Ltd. v. Creighton Holdings Ltd. (1987), [1988] 2 W.W.R. 541, 64 Sask. R. 297, 1987 CarswellSask 406 (Sask. Q.B.) — considered Tatum v. Tatum (2011), 2011 ABQB 253, 2011 CarswellAlta 677, 68 E.T.R. (3d) 65 (Alta. Q.B.) — referred to Thorsteinson v. Olson (2014), 2014 SKQB 237, 2014 CarswellSask 507, [2014] 10 W.W.R. 768, 100 E.T.R. (3d) 39, 46 R.P.R. (5th) 48, 452 Sask. R. 160 (Sask. Q.B.) — followed Tinline v. Tinline Estate (2013), 2013 SKQB 167, 2013 CarswellSask 291, (sub nom. Tinline Estate, Re) 420 Sask. R. 81 (Sask. Q.B.) — considered Townson v. Tickell (1819), 106 E.R. 575, 3 B. & Ald. 31, [1814-23] All E.R. Rep. 164 (Eng. K.B.) — considered Statutes considered: Administration of Estates Act, S.S. 1998, c. A-4.1 s. 35 — considered Powers of Attorney Act, 2002, S.S. 2002, c. P-20.3 s. 14(1) — considered s. 18 — considered s. 18.1 [en. 2014, c. 22, s. 7] — considered s. 18.1(3) [en. 2014, c. 22, s. 7] — considered Trustee Act, 2009, S.S. 2009, c. T-23.01 Generally — referred to s. 55 — considered Rules considered: Queen’s Bench Rules, Sask. Q.B. Rules 2013 Generally — referred to Words and phrases considered: disclaimer [I]n the context of a will or an estate, a disclaimer is a refusal to accept an interest which has been bequeathed to the disclaiming party. When an interest is disclaimed, it is as if it had never been acquired by the disclaiming party. Since a disclaimer operates not to divest a gift but rather prevent it from vesting, there is no requirement of form. It can be by deed, by writing, by conduct or even orally. 98 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

disposing mind [W]hen challenging the mental competence of a beneficiary to disclaim, it is incumbent on the challenger to prove on a balance of probabilities that at the time the disclaimer was executed, the beneficiary did not have a disposing mind or memory. . . . [A] disposing mind would entail (1) that the beneficiary understood what he or she was doing, (2) that he or she understood what was being given to them and by who, and (3) that he or she understood what they were giving up.

APPLICATIONS by estate executors for various relief relating to estates, including accounting and removal of law firm as counsel.

Calvin D. Ursaki, for Jan Ostlund, Executrix of the Estate of Rita Kusch Ryan R. Lavoie, for Brian Dolan, Executor of the Estate of Olive Muller

D.E. Labach J.: Introduction 1 There are three applications before me following a decision of my brother Justice Currie dated February 20, 2015 wherein he struck a State- ment of Claim filed by Jan Ostlund [Jan] as executrix of the estate of Rita Kusch [Rita] but granted her leave to reinstitute proceedings by way of originating application. As a result, Ms. Ostlund filed an originating application requesting a determination that: (a) The documents executed by the late Rita Kusch relinquishing her right to share in the estate of her sister, Olive Regina Marie Muller [Olive], be deemed null and void and of no legal force and effect or alternatively, there be a trial of the issue regarding the validity of said documents; and (b) Nothing be done under the grant of probate of the estate of Olive Regina Marie Muller without leave of the Court, pending the final outcome of this application. 2 Prior to this application being heard, Brian Dolan [Brian], in his capacity as executor of the estate of Olive Regina Marie Muller, filed an application asking this Court for the following relief: (a) An order requiring a full accounting of the late Rita Kusch’s actions in her capacity as Power of Attorney for Olive Muller; (b) An order requiring a full accounting of Jan Ostlund and James Kusch’s [James] actions in their capacity as Power of Attorney for Rita Kusch; Kusch Estate v. Muller Estate D.E. Labach J. 99

(c) An order requiring Jan Ostlund in her capacity as executrix of the estate of Rita Kusch to provide an accounting to the applicant who is a beneficiary of the estate; (d) An order directing the law firm of Mathiason Valkenburg & Pol- ishchuk to disclose its files pertaining to the will of the deceased, Rita Kusch, and its files when they acted for the deceased, Olive Muller; and (e) An order removing the law firm of Mathiason Valkenburg & Pol- ishchuk as counsel for the estate of Rita Kusch. 3 Mr. Dolan filed one further application requesting that the Court grant him leave to cross-examine Rodalyn Gamueda on her affidavit sworn in support of Ms. Ostlund’s application.

Facts: 4 This case is akin to something you would expect to see on a law school exam. Olive Muller and Rita Kusch were sisters. On February 29, 2008 Olive attended at the law firm of Scharfstein Gibbings Walen Fisher and executed a will. In her will she appointed her sister, Rita, and her nephew, Brian Dolan, as joint executors of her estate. She made a number of specific bequests in her will, mainly to Rita. Finally she stipulated that the residue of her estate should be divided equally between Rita and Brian. At the same time that she executed her will, Olive also executed an Enduring Power of Attorney naming Rita as her attorney. 5 By the spring of 2009, Olive was 93 years old and suffering from dementia. She could no longer manage her personal or financial affairs. She moved out of her home at 305 Avenue P North in Saskatoon and into the Sunnyside Adventist Care Centre. Rita was 88 at this time and was managing Olive’s affairs pursuant to the Power of Attorney granted to her including paying all of Olive’s monthly bills, filing her income tax returns and arranging for the sale of some of Olive’s real property. 6 On August 14, 2009, Rita executed her own Power of Attorney in favour of a family friend, Jan Ostlund. On July 10, 2010, Rita attended on her lawyer, Ben Valkenburg, and had him draft a new Enduring Power of Attorney for her. In the new document she named her son, James Kusch, or Jan Ostlund as her said attorney. 7 Over time, Rita’s physical and mental abilities began to diminish. She became less and less capable of managing her own affairs and those of 100 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

Olive’s. By July 2010, Rita was regularly calling on her son, James, to help her manage hers and Olive’s affairs. 8 In 2011, Rita was no longer capable of living by herself in her own home. Her memory was declining and she was forgetting to eat and take her medications. As a result, she moved to Preston Park Retirement Resi- dence, an assisted living senior citizen’s complex. Over her time there she struggled to maintain the upkeep of her suite, had difficulty looking after her personal hygiene, began to lose her hearing and suffered from back pain. Her memory continued to decline. She became even less capable of doing things for herself and less willing to act as attorney for Ol- ive. Despite these difficulties, Rita would still go to visit Olive at Sunny- side Care Home or attend on her lawyer to discuss issues surrounding her will. 9 In November 2011, Rita was admitted to St. Paul’s Hospital suffering from congestive heart failure. Upon her discharge on December 26, her attending physician noted that while she was well enough to go back to her previous care home, he had concerns regarding her cognition and would have liked her to be in a more supervised situation such as a private care home. There is nothing further in his report filed explaining his concerns. Rita returned to Preston Park. 10 On January 31, 2012, Rita met with her lawyer, Ben Valkenburg, and executed a new will. This will appointed Jan Ostlund as her executrix or in the alternative, her son, James. There were a number of specific bequests in the will. The bulk of her estate was to go to her son, James. The respondent, Brian Dolan, and his wife, Olga, were to receive a $30,000 bequest. 11 By September 2012, James Kusch was looking after all of Rita’s financial affairs and his aunt Olive’s too as his mother was no longer able to do so. James made arrangements for Olive’s cabin at Wakaw Lake to be sold. Rita signed the transfer documents as Olive’s attorney with James cuing her to do so. 12 Rita was admitted to St. Paul’s Hospital again in March 2013. She was suffering from pneumonia. During her time at the hospital she was seen by both a physical therapist and an occupational therapist. Their reports indicate that Rita was consistently disoriented to time and place, did not know why she was in the hospital, had difficulty following commands and had lower reasoning, problem solving and memory function. Her physician strongly recommended that Rita not return to Preston Park but that she be admitted to a long-term personal care facility. Upon her Kusch Estate v. Muller Estate D.E. Labach J. 101

discharge on May 19, Rita went to live at just such a facility: Arbor Villa Care Home in Saskatoon. 13 Olive Muller passed away on July 19, 2013. She was 97 years old. Shortly after her death, Brian Dolan attended at James Kusch’s residence and told James that the lawyer dealing with Olive’s estate required all of the documentation regarding the different real estate transactions that Rita performed for Olive under her Power of Attorney. James told him that he would locate those documents and forward them to the estate lawyer. Mr. Dolan also asked where Rita was living and Mr. Kusch advised him that she was at Arbor Villa Care Home. 14 On August 13, 2013, Brian Dolan and his wife, Olga, went to Arbor Villa Care Home to speak to Rita. The specifics of their conversation are in dispute. However while there, Mr. Dolan drafted a document that stated as follows: I, Rita Kusch, wish to give up my appointment as executors of Olive Muller’s estate. Brian Dolan will be the sole executor in this mater (sic), and I relinquish my rights under this matter. 15 Rita signed this document and her signature was witnessed by Rodalyn Gamueda, a staff member from the care home. Ms. Gamueda was unsure if she should act as a witness in these circumstances so she asked Brian to sign a note indicating that James Kusch knew they were there. He did so and provided it to her. The note said: Re: Rita Kusch Jim Kusch knows we were here to see Rita regarding Olive’s Will. 16 Brian Dolan delivered the handwritten renunciation to Mr. Gord Balon, the lawyer for Olive’s estate. Mr. Balon requested that Brian have Rita sign a more formal document. Mr. Balon drafted a formal renunciation of probate and on August 23, 2013, Brian and Olga re-attended at Arbor Villa Care Home to meet with Rita to get her to sign this document. This document stated as follows: WHEREAS OLIVE REGINA MARIE MULLER, late of Saska- toon, in the Province of Saskatchewan, died on or about the 19 day of July, A.D. 2013, and whereas the deceased left a Will dated the 29 day of February, 2008, and I, RITA KUSH, the Province of Sas- katchewan, was named an Executor therein. NOW I renounce my right to probate. 17 Rita signed this document and Olga witnessed her signature. For some reason, the date of execution on the document was August 22, 2013. 102 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

18 At this same time the Dolans presented another document to Rita to sign. The evidence is not clear who prepared this document but it was typewritten and dated August 23, 2013. It stated as follows: I, Rita Kusch renounce any monetary gain I may have received from the estate of Olive Regina Marie Muller, and to turn over all said gain to co-executor Brian Edward Dolan, to dispense with at his discretion. 19 Rita signed this document and it was witnessed by Olga Dolan and Rodalyn Gamueda. 20 With these documents in hand, Brian applied for grant of probate of the Last Will and Testament of his aunt, Olive Muller, on January 31, 2014. On February 4, Justice Maher granted letters probate to him. 21 Rita Kusch died on March 4, 2014 at the age of 92. From conversations she had with Rita before she passed, Ms. Ostlund was aware that Rita was named as a beneficiary in Olive’s will. In her capacity as executrix of the estate of Rita Kusch, she contacted Mr. Dolan and requested a copy of Olive’s will. Ms. Ostlund wanted to determine what Rita’s estate was entitled to from Olive’s estate. Again, the nature of the conversation is disputed but suffice it to say that it ended with Mr. Dolan refusing to provide a copy of Olive’s will and Ms. Ostlund requesting the name of the lawyer looking after the estate. Brian Dolan told her that the estate’s lawyer was Gordon Balon, Q.C. 22 Ms. Ostlund hired Ben Valkenburg to represent Rita’s estate. He wrote to Mr. Balon and was able to obtain information regarding Olive’s estate. Ms. Ostlund made application for grant of probate of Rita Kusch’s Last Will and Testament and letters probate were granted to her July 25, 2014 by Chief Justice Popescul. 23 According to Ms. Ostlund, Rita’s purported relinquishment of her share of Olive’s estate has resulted in a situation wherein Rita’s estate does not have sufficient assets to satisfy all the legacies made under Her Last Will and Testament. Ms. Ostlund now brings this application taking issue with the mental capacity of Rita at the time she signed the documents relinquishing her right to her share in the estate of her sister, Ol- ive. In response, the respondent disputes the application and brings his own applications requesting a number of miscellaneous orders.

Issues: 24 The issues are as follows: Kusch Estate v. Muller Estate D.E. Labach J. 103

(a) Was the late Rita Kusch mentally competent at the time she disclaimed her interest in the estate of Olive Regina Marie Muller? (b) Did Brian Dolan and/or his spouse unduly influence the late Rita Kusch to disclaim her interest in the estate of Olive Regina Marie Muller? (c) Should the estate of Rita Kusch be required to provide an accounting of the late Rita Kusch’s actions as power of attorney for Olive Muller to the estate of Olive Regina Marie Muller? (d) Should Jan Ostlund and James Kusch be required to provide an accounting of their actions as powers of attorney for Rita Kusch to the estate of Olive Regina Marie Muller? (e) Should Jan Ostlund, executrix of the estate of Rita Kusch, be required to provide an accounting of the estate of Rita Kusch to Brian Dolan, executor of the estate of Olive Regina Marie Muller? (f) Should the law firm of Mathiason Valkenburg & Polishchuk be removed as counsel for the estate of Rita Kusch? (g) Should the law firm of Mathiason Valkenburg & Polishchuk be directed to disclose its files pertaining to the will of the deceased, Rita Kusch, and any files wherein they acted for the deceased, Ol- ive Muller, to Brian Dolan, the executor of the estate of Olive Re- gina Marie Muller? (h) Should Brian Dolan, executor of the estate of Olive Regina Marie Muller, be granted leave to cross-examine Rodalyn Gamueda on her affidavit sworn April 21, 2015?

Analysis: (a) Was the late Rita Kusch mentally competent at the time she disclaimed her interest in the estate of Olive Regina Marie Muller? 25 The law relating to disclaimers is, surprisingly, arcane; the case law, scarce. Suffice it to say that the law will not force a person to accept a gift. In Townson v. Tickell (1819), [1814-23] All E.R. Rep. 164 (Eng. K.B.), Abbott C.J. stated: The law certainly is not so absurd as to force a man to take an estate against his will. Prima facie, every estate, whether given by will or otherwise, is supposed to be beneficial to the party to whom it is so given. Of that, however, he is the best judge, and if it turn out that the party to whom the gift is made does not consider it beneficial, the 104 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

law will certainly, by some mode or other, allow him to renounce or refuse or renounce the gift. 26 Thus in the context of a will or an estate, a disclaimer is a refusal to accept an interest which has been bequeathed to the disclaiming party. When an interest is disclaimed, it is as if it had never been acquired by the disclaiming party. Since a disclaimer operates not to divest a gift but rather prevent it from vesting, there is no requirement of form. It can be by deed, by writing, by conduct or even orally. See Montreal Trust Co. v. Matthews, [1979] 3 W.W.R. 621 (B.C. S.C.) (QL) at paras 21 to 26; R.F. Barlow, et al, Williams on Wills, 9th ed, vol 2 (London: LexisNexis, 2008) at 1078. 27 Neither party was able to provide me with a case that spoke to the test for determining a person’s capacity to disclaim a bequest. However, in Leger v. Poirier, [1944] S.C.R. 152 (S.C.C.), a case dealing with the competence of the testatrix at the time she executed her will and whether she was unduly influenced by her son when she executed her will, the Supreme Court said this at 161-62: ... But there is no doubt whatever that we may have testamentary incapacity accompanied by a deceptive ability to answer questions of ordinary and usual matters: that is, the mind may be incapable of carrying apprehension beyond a limited range of familiar and suggested topics. A “disposing mind and memory” is one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revoca- tion of existing dispositions, and the like; this has been recognized in many cases: Marsh v. Tyrrell and Harding [(1828) 2 Hagg. Ecc. R. 84, at 122.]: It is a great but not an uncommon error to suppose that because a person can understand a question put to him, and can give a rational answer to such question, he is of perfect, sound mind, and is capable of making a will for any purpose whatever; whereas the rule of law, and it is the rule of common sense, is far otherwise: the competency of the mind must be judged of by the nature of the act to be done, and from a consideration of all the circumstances of the case. [Emphasis added] 28 This suggests that the standard for mental capacity to revoke or disclaim is a disposing mind and memory. Thus, when challenging the mental competence of a beneficiary to disclaim, it is incumbent on the Kusch Estate v. Muller Estate D.E. Labach J. 105

challenger to prove on a balance of probabilities that at the time the disclaimer was executed, the beneficiary did not have a disposing mind or memory. In my view, a disposing mind would entail (1) that the beneficiary understood what he or she was doing, (2) that he or she understood what was being given to them and by who, and (3) that he or she understood what they were giving up. 29 In the present case, there is conflicting evidence on the issue of whether Rita Kusch was mentally competent at the time she signed the handwritten disclaimer of her interest in her sister Olive’s estate and later when she signed the typewritten disclaimer. 30 When Rita was in the hospital in November 2011, the doctor had concerns regarding her cognition. When she was in the hospital again in March 2013, it was noted that she was consistently disoriented to time and place, did not know why she was in the hospital, had difficulty following commands, had lower reasoning and problem solving and lower memory functioning. Her doctor recommended that she be admitted to a long-term personal care facility. 31 Upon her discharge on May 19, 2013, Rita did not return to Preston Park but instead went to Arbor Villa Care Home, a long-term personal care facility. On the intake form, it was noted that Rita’s medical history included dementia. Rodalyn Gamueda was the personal care provider at Arbor Villa assigned to Rita. In an affidavit, Ms. Gamueda deposed that for the first two weeks after her arrival, Rita was very confused, expressed that she needed to return to the hospital and complained that she did not know where she was or why she was there. Thereafter Ms. Gamueda noted Rita to be consistently confused. Rita would forget whether she had meals or could not remember if she had taken her medications. She would complain about paying exorbitant prices for meals even though no such fees were actually paid. On occasion, Rita would refer to Ms. Gamueda as her daughter. Rita’s son, James, visited her regularly but she could not remember him coming and would complain that he never visited her. 32 In July 2013, after Olive Muller had passed away, Brian Dolan went to visit James Kusch. Brian advised James that Olive’s estate lawyer needed all the legal documents for the sale of the various properties that Rita sold for Olive as her attorney. Brian also inquired as to where Rita was living. James told him she was at Arbor Villa. 33 In August 2013, Brian Dolan and his wife, Olga, went to see Rita at Arbor Villa. Ms. Gamueda was present when they were there. According 106 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

to her, Rita did not recognize either Brian or Olga initially. When Brian mentioned his name there was some familiarity with him but still not with Olga. While they were there, they asked Rodalyn to act as witness to Rita’s signature on some papers. They told her the papers had to do with Rita’s sister’s will but they would not let her see the papers. Ac- cording to Rodalyn, Brian Dolan told her that Rita’s son, James, knew they were there to talk to Rita about her sister’s will and that James was okay with Rita signing off money to them. Rodalyn further deposed that Olga Dolan was very anxious and pushy and told Rodalyn to just sign the document as Rita does not need the money anyway. 34 After Brian and Olga Dolan left, Ms. Gamueda asked Rita if she knew what the papers were about and Rita said that it was to give Brian the money. When Rodalyn asked Rita why she did that, she said that she did not know. 35 The respondent filed contradictory material. Brian Dolan stated that he and his wife, Olga, met with James Kusch on August 13, advised him that Rita was named as an executor of Olive’s estate and may need to renounce. He asked James where Rita was living and was told Arbor Villa. Later that day, he and Olga went to see Rita at Arbor Villa. When they got there, they met with Ms. Gamueda and Rita and told them that they were there to see Rita because she was the executor of a will. They said that she would likely have to renounce her executorship because of her physical health. 36 According to Brian, he spoke with Rita and she agreed that she would not be able to act as Olive’s executor due to her health. He said that she knew that she was entitled to a large inheritance but that she did not want Olive’s money. Brian told Rita that he had met with a financial advisor from Olive’s bank and the advisor said that if Rita was not going to act as an executor she needed to sign a renunciation. Brian deposed that he had handwritten a renunciation then and there and Rita asked him to add in a line that she did not wish to receive any money from Olive’s estate. He did so. He then read the document to Rita and according to him, she understood it and signed it. He then had Rodalyn Gamueda witness her signature. After this handwritten document had been executed, Brian and Olga asked Rita if she had deposited the money from the sale of Olive’s house into Olive’s bank account. Rita responded that she did not want any of Olive’s money, she had her own money and that the money in Olive’s account was Olive’s money. Kusch Estate v. Muller Estate D.E. Labach J. 107

37 The handwritten renunciation signed by Rita was not sufficient for the estate lawyer. As a result he drafted a more formal renunciation of probate and had Brian re-attend to Arbor Villa to have Rita sign this document. On August 23, 2013 Brian and Olga went back to see Rita and had her sign this second document. Olga witnessed Rita’s signature. 38 While they were there on August 23, the Dolans had a second typewritten document that they had Rita sign. This document was a renunciation of her bequest from Olive’s estate. It was witnessed by Olga Dolan and Rodalyn Gamueda. However there was no evidence as to who prepared this document, whether either Brian or Olga explained it to Rita, whether they told her why she needed to sign it or whether they asked her if she understood it and was prepared to sign it. 39 Finally, Brian Dolan said that he spoke with Rita a number of times before she passed away and never had any concerns about her mental capacity or mental health. He questioned Ms. Gamueda’s recollection of what occurred in August at Arbor Villa and denied much of what she said. He pointed out that Rita Kusch had executed a will in January 2012 and numerous documents selling Olive’s cabin in September 2012 and nobody had any concerns about her mental capacity then. 40 Olga Dolan also filed an affidavit in these proceedings. Her evidence about what occurred on August 13 and 23, 2013 is much the same as Brian’s evidence. Olga stated that she and Brian were close with Rita and over the years they visited with her on many occasions. She stated that on more than one occasion Rita told her that she was not interested in Olive’s money. Over the last few years, she acknowledged that Rita had become hard of hearing but said that Rita was still able to have a conversation and fully express her wishes. At no time did she ever question Rita’s mental capacity and she is satisfied that it was Rita’s own decision to disclaim her interest in Olive’s estate. 41 Rita Kusch can only disclaim her interest in her sister Olive’s estate if she had a disposing mind and memory. As noted above, the evidence of the mental capacity of Rita on August 13 and 23, 2013 is conflicting. I have concluded that it is not possible to decide that issue of capacity on the basis of the affidavit evidence filed. When I consider the somewhat suspicious circumstances that resulted in the creation of the disclaimers, that the party that stands to gain the most from Rita’s disclaimer prepared the documents and his spouse witnessed Rita’s signature on at least one of the disclaimers, it reinforces my decision that a trial of the issue is 108 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

required. At a trial, more and better evidence can be called and subject to cross-examination so this serious issue can be properly resolved.

(b) Did Brian Dolan and/or his spouse unduly influence the late Rita Kusch to disclaim her interest in the estate of Olive Regina Marie Muller? 42 The doctrine of undue influence was summarized by Schwann J. in Thorsteinson v. Olson, 2014 SKQB 237, 452 Sask. R. 160 (Sask. Q.B.). At paras. 60 to 65 she stated: 60 Halsbury’s Laws of Canada, Food/Gifts, 1st ed. (Markham, ON: LexisNexis Canada, 2014) at p. 299, describes the concept of undue influence in the following way: Undue influence is influence which overbears the will of the person influenced so that in truth what he or she does is not his or her own act. The domination of another person’s will may occur through manipulation, coercion or outright but subtle abuse of power. [Footnotes omitted] 61 Geffen v. Goodman Estate [1991] 2 S.C.R. 353, 81 D.L.R. (4th) 211, a decision from the Supreme Court of Canada, is the controlling authority on the doctrine of undue influence. Geffen affirms the his- toric, common law doctrine and the underlying bases upon which it may be invoked to set aside voluntary gifts. 62 The first basis, or category, is a finding of actual undue influence. Actual undue influence is said to arise where the gift is the result of influence expressly applied by the donee. At para. 26 of Geffen the Court said: ... First, there are the cases in which there has been some unfair and improper conduct, some coercion from outside, some overreaching, some form of cheating, and generally, though not always, some personal advantage obtained by a donee placed in some close and confidential relation to the donor .... 63 The second basis is a recognition that persons standing in certain relationships with another will be presumed to be in relationships of influence over the other until the contrary is proven. 64 The court in Geffen primarily explored the second basis for invok- ing the doctrine, i.e. the presumption of undue influence. The court began its analysis with the observation that equity has long recognized that transactions between persons standing in certain relationships to one another will be presumed to be relationships of influence until the contrary is shown. (Geffen, para. 29) The question of which Kusch Estate v. Muller Estate D.E. Labach J. 109

relationships give rise to this presumption was resolved in Geffen by the application of a two-prong approach. The first line of inquiry involves an examination of the actual relationship which exists between the parties and the second shifts to an examination of the nature of the transaction. The court said: 42 The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization. 43 Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. When dealing with commercial transactions, I believe that the plaintiff should be obliged to show, in addition to the required relationship between the parties, that the contract worked unfairness either in the sense that he or she was unduly disadvantaged by it or that the defendant was unduly benefited by it.... 44 By way of contrast, in situations where consideration is not an issue, e.g., gifts and bequests, it seems to me quite inappropriate to put a plaintiff to the proof of undue disadvantage or benefit in the result. In these situations the concern of the court is that such acts of beneficence not be tainted. It is enough, therefore, to establish the presence of a dominant relationship. 65 Once a special relationship is established, the onus shifts to the defendant, or donee, to rebut the impugned transaction. Geffen, supra, described the requisite onus at para. 45: 45 ...As Lord Evershed M.R. stated in Zamet v. Hyman, supra [1961] 3 All E.R. 933 at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own “full, free and informed thought”. Substan- tively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised. 110 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

43 In the present case, the applicant has suggested that Rita may have been unduly influenced by the Dolans to disclaim her bequest. Unfortu- nately, besides alleging this in their application the applicant has not provided a shred of evidence that Rita Kusch was actually unduly influenced or that there was a presumption of undue influence at play here. There being no evidence before me that Rita was manipulated or coerced to sign the disclaimers or make the statements attributed to her or that there was some relationship between Brian Dolan and/or Olga Dolan and Rita Kusch that gave rise to the potential for domination or coercion to exist, I dismiss this part of the application.

(c) Should the estate of Rita Kusch, be required to provide an accounting of the late Rita Kusch’s actions as power of attorney for Olive Muller to the estate of Olive Regina Marie Muller?

(d) Should Jan Ostlund and James Kusch be required to provide an accounting of their actions as powers of attorney for Rita Kusch to the estate of Olive Regina Marie Muller? 44 As these two issues are interrelated, it is convenient to deal with them together. It is not disputed that on February 28, 2008 Olive Muller appointed her sister, Rita Kusch, as her attorney under an Enduring Power of Attorney. By the spring of 2009, Olive was suffering from dementia and no longer able to manage her affairs. As a result, and pursuant to the aforementioned Enduring Power of Attorney, Rita began paying Olive’s bills and filing Olive’s income tax returns. Rita also sold real property owned by Olive including her home at 305 Avenue P North, a quarter section of land in the R.M. of Harris, residential property in the Town of Middle Lake and a cabin at Wakaw Lake. 45 However, Rita’s own physical and mental capabilities were beginning to diminish and she saw fit to appoint her own attorney. On August 14, 2009 she executed a document designating Jan Ostlund as her attorney. On July 10, 2010 she executed a new Enduring Power of Attorney naming either James Kusch or Jan Ostlund as her attorney. 46 Despite her issues, for a time Rita remained capable of making her own personal and financial decisions and those of Olive’s. During the period that Jan Ostlund was her sole attorney, she did not have to make any decisions on Rita’s behalf. After July 10, 2013, Ms. Ostlund never made any decisions for Rita but James Kusch began helping his mother manage her affairs and Olive’s. While he did not initially have to utilize Kusch Estate v. Muller Estate D.E. Labach J. 111

his Power of Attorney, he did have to remind Rita when bills were due and make sure she paid them on time. Eventually though he had to bring her cheques to sign, cue her to sign the cheques and then send the cheques out to pay her bills and Olive’s bills. After Rita’s hospitalization in March 2013, James did begin to exercise his Power of Attorney in relation to his mother’s affairs to the extent of authorizing her placement at the Arbor Villa long-term care home, paying her bills at this home and purchasing her medications. While it appears he exercised his attorney over his mother’s affairs until she passed away in March of 2014, over this time it looks like he was still bringing her cheques to sign to pay Olive’s bills, was cuing her to sign them and was making sure they were sent out. 47 In August 2013, after Olive Muller had passed away, Brian Dolan met with James Kusch at his residence. Brian told James that he was looking after Olive’s estate and that Mr. Balon, the lawyer for the estate, needed all the legal real estate documents for the various properties that Rita sold on Olive’s behalf as her attorney. James said that he would put these documents together and forward them to Mr. Balon. 48 James Kusch has deposed that all funds that Rita received for the sale of Olive’s properties were deposited into Olive’s bank account at the Af- finity Credit Union. James also said that on April 30, 2014 he couriered a package to Mr. Balon’s law firm in Prince Albert that contained all documentation that he had pertaining to any real estate transactions his mother Rita completed under her Power of Attorney for Olive. Unfortu- nately there is no evidence before me as to what those documents were or what properties they were in relation to. Brian Dolan said that Mr. Balon retired and the estate file was forwarded to his present counsel although there is no evidence when that occurred. According to Mr. Do- lan, there were no documents regarding the property transactions in the file his new counsel received from Mr. Balon. 49 The estate’s new counsel has requested copies of all documents relating to the property sales that were completed by Rita Kusch as attorney for Olive Muller, an accounting for the time period that Rita was acting as Olive’s attorney and copies of Rita’s bank account records for the time period that Rita was acting as Olive’s attorney. Counsel for Rita Kusch’s estate has not, to date, provided the requested documentation. 50 The applicant relies on the decision in the case of Tinline v. Tinline Estate, 2013 SKQB 167, 420 Sask. R. 81 (Sask. Q.B.) [Tinline]. In that case, the respondent had been appointed power of attorney for the gran- 112 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

tor and upon his death, the executor of the grantor’s estate. The applicant, the deceased’s son, applied to the Court for an order that the respondent provide an accounting from the date the Power of Attorney was granted to the present date. The Court determined that it did not have authority under s. 18 of The Powers of Attorney Act, 2002, SS 2002, c P- 20.3, to order an accounting from the respondent in her capacity as either an attorney or the executrix of the estate because the grantor/testator was deceased. However, the Court did find that they had the authority to grant the requested accounting pursuant to s. 55 of The Trustee Act, 2009, SS 2009, c T-23.01, and the Court’s inherent jurisdiction. Interest- ingly, despite the wording of s. 55 of The Trustee Act, 2009 that the trustee “shall” provide an accounting on request, the fact that the Court had the authority to grant the order for an accounting did not mean that they must grant the order to account. Justice Barrington-Foote held that an accounting should not be ordered if no cause is shown. 51 The Tinline case, while an informative decision, is of limited assistance to the present facts. Specifically, at the time Tinline was decided, The Powers of Attorney Act, 2002, had not yet been amended to include s. 18.1. Whereas s. 18 of The Powers of Attorney Act, 2002 dealt with a request for an accounting while the Power of Attorney was still existing, s. 18.1 addressed the situation where the authority of the attorney had terminated. It states as follows: 18.1(1) Subject to subsection (2), every attorney acting pursuant to an enduring power of attorney shall, on the termination of the authority of the attorney: (a) provide a final accounting, in the prescribed form, of the decisions made, actions taken and consents given respecting the grantor to: (i) a person named by the grantor in the enduring power of attorney; (ii) if no person is named pursuant to subclause (i), an adult family member of the grantor; (iii) a decision-maker appointed pursuant to The Adult Guardianship and Co-decision-making Act, if any; (iv) a property guardian appointed pursuant to The Miss- ing Persons and Presumption of Death Act, if any; (v) if the grantor is deceased, the executor or administrator of the grantor’s estate; and (vi) the public guardian and trustee; and Kusch Estate v. Muller Estate D.E. Labach J. 113

(b) verify by affidavit the final accounting required pursuant to this subsection. (2) If the grantor is deceased: (a) a final accounting is not required when the attorney is the sole beneficiary of the grantor’s estate; and (b) a beneficiary of the grantor’s estate, other than a person mentioned in subsection (1), may request a final accounting. (3) A final accounting required pursuant to this section must be provided within six months after the date on which the attorney’s authority terminates. (4) The public guardian and trustee may carry out an investigation to ensure the accuracy of the final accounting. (5) If an attorney does not provide a final accounting pursuant to subsection (1) or clause (2)(b), any person listed in clause (1)(a) or (2)(b) may apply to the court for an order directing the attorney to provide that final accounting to the persons entitled to it pursuant to this section. 52 Unlike Tinline, recourse to The Trustee Act, 2009 on the present facts is not required. Rita Kusch’s authority to act as Olive Muller’s attorney terminated when Olive passed away on July 19, 2013. Pursuant to s. 18.1 of The Powers of Attorney Act, 2002, Mr. Dolan, as executor of Olive’s estate, has requested a final accounting of the time period that the Endur- ing Power of Attorney was granted by Olive to Rita to the date that she passed away. No final accounting was provided within the six-month timeframe stipulated in s. 18.1(3) of The Powers of Attorney Act, 2002, and has still not been provided as of today’s date. Complicating matters is the fact that Rita herself passed away in March 2014, some eight months after her sister, Olive. 53 Despite her passing, I am satisfied that this requirement to account has not been extinguished. One of the general duties that devolves in law to an executor is to meet all uncompleted obligations of the deceased. (See: James MacKenzie, Feeney’s Canadian Law of Will, looseleaf (Rel 59-Dec/2015) 4th ed (Toronto: LexisNexis, 2000) at 8-11. Thus, Rita’s duty to provide a final accounting falls to the executors of her estate. 54 As aforementioned, my brother Justice Barrington-Foote in Tinline, found that despite the word “shall” in s. 55 of The Trustee Act, 2009, there had to be a reason to order the accounting. He said: 21 The fact that the court has the authority to grant an order for an accounting does not mean I must grant that order. That is so notwith- 114 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

standing the language of s. 55(1) of The Trustee Act, which states that the trustee shall provide an accounting on request. The learned authors of Waters, supra, [D.W.M. Waters, Mark R. Gillen and Lio- nel D. Smith, Waters’ Law of Trusts in Canada, 3d ed. (Toronto: Thomson Carswell 2005), at p. 1108:] make the point in the following terms (at pps. 1065-66): ... As far as asking the court for an accounting is concerned, none of these persons has an absolute right. As we have seen, harassing the trustee is vexatious litigation, and whether the court will order an accounting depends entirely upon the court’s discretion and the circumstances of the case. Only where the trustee can be shown to be in default of his duties will this normally be given.... See also Liddell v. Deacou [1873] O.J. No. 148 (QL) (Ont. Ct. Ch.). 22 Although it is my view that it is not always necessary to prove that there has been a default by the trustee before an accounting is ordered, an accounting should not be ordered if no cause is shown. In this case, the applicant has failed to meet that burden. He has asked for an order that the respondent account despite the fact that there is no evidence she exercised her authority except to carry out very limited and specific instructions from the grantor. There is no evidence she exercised her authority after he became incompetent. A property attorney should not be required to provide an accounting for a period when her power was neither effective nor exercised, and in the absence of evidence that she had exercised her authority other than as instructed and in what was essentially an agency capacity. I note on this point the reasoning in Fair v. Campbell (Estate) 3 E.T.R. (3d) 67, [2002] O.J. No. 5926 (QL) (Ont. Sup. Ct.), at paras. 29 - 33. 55 Given the similarity in wording in s. 18.1 of The Powers of Attorney Act, 2002 and s. 55 of The Trustee Act, 2009 and applying this same reasoning as Barrington-Foote J., I am satisfied an applicant must show cause why an accounting should be ordered. Here, Brian Dolan’s affidavit evidence is that he was concerned that James Kusch may have been utilizing both Rita’s assets and Olive’s assets for his own personal benefit. He states that he had no idea whether or not Rita or James were acting in Olive’s best interests or for their own interests and that he suspected James may have been using the Power of Attorney for his own personal benefit. He said he believed that James may have utilized Ol- ive’s assets for his benefit or Rita’s benefit by placing Olive’s funds in Rita’s account. However, Mr. Dolan has provided no evidence substanti- ating these bald assertions. Kusch Estate v. Muller Estate D.E. Labach J. 115

56 I note that James Kusch did send a package of documents to the estate’s then counsel that appears to have been an accounting of sorts regarding Rita’s attorney for Olive. As executor of Olive’s estate, Mr. Do- lan would have access to her bank records and other financial information. Yet even with all this material, he is unable to point to any anomaly that would support his allegations. 57 It is clear from his numerous affidavits that Mr. Dolan’s concern is more specific in nature. Rita sold four of Olive’s properties under the attorney granted to her however Mr. Dolan is unable to determine if these properties were sold for fair market value and in at least three of the cases, what they were sold for and whether the proceeds from the sales were deposited into Olive’s bank account. I am somewhat surprised that he is unable to piece these transactions together. He should be able to obtain a copy of the transfer documents from Information Services Corporation and should then be able to cross-reference the date of the sale with Olive’s bank records to locate the deposit, if indeed it was made. I am equally surprised that he has been unable to obtain copies of the agreements for sale, the transfer documents and the statements of adjustments from the law firm that looked after the transactions for Olive. As the principal in the transaction, Olive, or her estate, should be entitled to these documents even if direction regarding the transaction came from her attorney agent. 58 In any event, while I am not satisfied on the material filed before me that Rita’s estate must file a full accounting of Rita’s actions as Olive’s Power of Attorney, I am satisfied that an order for an accounting limited to the real estate transactions that Rita brokered on Olive’s behalf is required. As a result, there will be an order that Rita’s estate provide an accounting of the four sales of Olive’s real property that she carried out as Olive’s attorney. To the extent that it is possible, this accounting should include a copy of any listing agreements in relation to the properties, a copy of the accepted offers to purchase, a copy of the solicitor’s statement of adjustments for each transaction and an indication as to when the proceeds from the respective sales were deposited into Olive’s account and what account they were deposited into. 59 I am not prepared to make an order that Jan Ostlund or James Kusch provide an accounting of their actions as Power of Attorney for Rita Kusch to the estate of Olive Muller. Jan Ostlund never made any decisions for Rita Kusch as her attorney and while James Kusch may have assisted his mother in having the properties listed or sold, the evidence 116 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

before me is that Rita made the decisions regarding the properties, she was competent to do so at the time that she made those decisions and she signed the appropriate documents for the properties to be sold. As has been pointed out in counsel’s material, s. 14(1) of The Powers of Attor- ney Act, 2002, specifically states that an attorney cannot delegate the authority granted under an Enduring Power of Attorney unless it states otherwise. In this case, the Enduring Power of Attorney signed by Olive appointing Rita says nothing about Rita being able to delegate her authority to another. Therefore neither Jan Ostlund nor James Kusch could have made decisions on Olive’s behalf as the Power of Attorney for Rita Kusch. 60 Even if I am wrong on this reasoning, the applicant in this case is the estate of Olive Muller by its executor. I have no authority to grant an accounting to Olive’s estate as the estate is not a beneficiary of Rita’s estate. Moreover, the estate does not fall within one of the listed catego- ries of persons that can demand an accounting pursuant to s. 18.1 of The Powers of Attorney Act, 2002.

(e) Should Jan Ostlund, executrix of the estate of Rita Kusch, be required to provide an accounting of the estate of Rita Kusch to Brian Dolan, executor of the estate of Olive Regina Marie Muller? 61 In letters dated April 15, 2015 and May 5, 2015, sent to the lawyer representing the estate of Rita Kusch, legal counsel for the Olive Muller estate requested an accounting be done of the estate of Rita Kusch and forwarded to them. The basis for their request was that it “will provide information as to her assets and will help determine if any amounts were removed from her account by either Jan Ostlund or Jim Kusch”, that it “will also be pertinent to the Estate in determining the order the beneficiaries are to be paid and to determine if the POA’s took advantage of Rita Kusch and Olive Muller” and “as Brian Dolan is a beneficiary of the Estate is entitled as beneficiary to receive an accounting particularly under the current circumstances”. Neither Ms. Ostlund as the executrix of Rita Kusch’s estate or counsel for the estate have provided the requested accounting. The applicant asks for an order pursuant to s. 55 of The Trustee Act, 2009 requiring Ms. Ostlund as executor of the Rita Kusch estate to provide an accounting to the applicant who is a beneficiary of the estate. 62 There is no question that there is a duty on an executor of an estate to render accounts when properly called upon to do so. Section 35 of The Kusch Estate v. Muller Estate D.E. Labach J. 117

Administration of Estates Act, SS 1998, c A-4.1, states that an executor must render a full accounting of the executorship within two years after the grant of letters probate. However, a personal representative who is administering an estate is a trustee who owes a fiduciary duty to the beneficiaries of the estate. (See: Tatum v. Tatum, 2011 ABQB 253 (Alta. Q.B.) at para 28.) Consequentially as Justice Barrington-Foote found in the Tinline decision, the Court has authority pursuant to s. 55 of The Trustee Act, 2009 to order an accounting. Section 55 reads as follows: 55(1) On the request of a beneficiary of the trust, or the beneficiary’s property attorney or property guardian, a trustee shall provide an accounting to the beneficiary. (2) If a beneficiary of the trust, or the beneficiary’s property attorney or property guardian, has been unable to obtain an accounting from the trustee in accordance with subsection (1), the beneficiary of the trust, or the beneficiary’s property attorney or property guardian, may apply to the court for an order directing the trustee to provide an accounting to the court or to the beneficiary. (3) Notwithstanding anything to the contrary in the terms of a trust, if a beneficiary of the trust or other interested person has requested information concerning the accounts of a trustee, and the trustee has refused to comply with the request in a reasonable and timely manner, the court may order the trustee to pass accounts in accordance with section 54. 63 In order to fall within this section, the request for an accounting must be made by a beneficiary, their property attorney or property guardian or other interested person. Unfortunately the applicant is none of these. Brian Dolan has brought this application as executor of the estate of Ol- ive Muller. But neither Olive Muller nor her estate is a beneficiary under Rita Kusch’s will nor is Olive Muller or her estate, in my opinion, an interested person. There is no evidence before me that Olive’s estate has any interest in Rita’s estate. The reasons set forth in counsel’s April 15 and May 5 letters do not disclose any interest. Mr. Dolan suggested in his affidavit sworn June 2, 2015, that an accounting of Rita’s estate was required “to determine if all the funds from the sale of Olive’s property were placed in Rita’s bank account.” But he does not provide any evidence that any proceeds from the sale of Olive’s properties were ever deposited into Rita’s bank account or that there is a possibility that that even occurred. Moreover, an accounting by the executor of an estate is an accounting of their executorship and nothing more. It would not disclose how Rita accumulated her assets and liabilities but would only 118 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

show what they were at the time of her death and how the executor dealt with the estate thereafter. Thus I am not satisfied I have the authority under s. 55 of The Trustee Act, 2009 to order that Ms. Ostlund provide an accounting of Rita Kusch’s estate to Mr. Dolan as executor of Olive Muller’s estate. Even if I did have that authority, I am not satisfied that cause has been shown, on these particular facts, to order the accounting. 64 Brian Dolan, himself, is a beneficiary of Rita Kusch’s estate. As such, he may very well be entitled to an accounting of Rita’s estate from Jan Ostlund, the executrix. But that application should be made in his personal capacity and should be addressed directly in the estate of Rita Kusch.

(f) Should the law firm of Mathiason Valkenburg & Polishchuk be removed as counsel for the estate of Rita Kusch? 65 The applicant argues that the law firm of Mathiason Valkenburg & Polishchuk should be removed as counsel for the Rita Kusch estate because it is “highly likely” that Ben Valkenburg, one of the senior partners of the firm, will be called as a witness in the case. According to the applicant’s affidavit evidence, Mr. Valkenburg was Rita Kusch’s lawyer. He prepared an Enduring Power of Attorney for Rita and witnessed her signature on that document on July 9, 2010. He drew up a will for Rita and witnessed her signature on the will on January 31, 2012. In Septem- ber 2012, Rita purportedly signed documents to sell Olive’s cabin at Wakaw Lake at Mr. Valkenburg’s office. The applicant argues that based on these meetings, Mr. Valkenburg may be able to shed some light on Rita’s mental capacity. 66 The Code of Professional Conduct adopted by the Law Society of Saskatchewan contains a section dealing with a lawyer as a witness. Rule 4.02(1) contained within that section states: 4.02(1) A lawyer who appears as advocate must not testify or submit his or her own affidavit evidence before the tribunal unless permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted. 67 Gerein J. considered this rule in the case of Saskatoon Credit Union Ltd. v. Creighton Holdings Ltd. (1987), 64 Sask. R. 297 (Sask. Q.B.). In that case, the applicant was alleging that the law firm representing the plaintiff was in a conflict of interest because in their view, three lawyers Kusch Estate v. Muller Estate D.E. Labach J. 119

from the law firm would likely testify at the trial in the case. In determining that there was no conflict of interest, Justice Gerein said: [13] From my reading of the authorities, I conclude that a lawyer should not serve as both advocate and witness; nor should members of his firm testify in proceedings wherein he is serving as advocate. This court has jurisdiction to restrain either situation, but it should be exercised with care and only to prevent mischief. For a contrary view as to restraining a lawyer from acting where his partners or associates testify, see Timlin Estate v. Timlin, (1984) 30 S.R. 239 (Sask. Q.B.). ... [15] In the instant case, Mr. Creighton simply expresses an opinion that Ms. Hopkins along with Messrs. Shaw and Litman will testify at the trial. At this stage of the proceedings this is only conjecture on his part. Were an order to be made on the basis of such conjecture, it could give rise to an abuse whereby a litigant’s choice of counsel could be limited. 68 Similarly in the present case, counsel for Rita Kusch’s estate has not stated that Mr. Valkenburg would be called as a witness at trial. All the applicant can offer is conjecture that Mr. Valkenburg could be a witness at trial. Frankly, I am not even satisfied that the conjecture is very strong. I fail to see how Mr. Valkenburg’s dealings with Rita Kusch in 2012 would have any bearing on her mental capacity 12 to 20 months later. As a result, the applicant has not established that the law firm of Mathiason Valkenburg & Polishchuk should be removed as counsel for the Rita Kusch estate. 69 The applicant relies on the case of Prokopetz v. Ruf, 2008 SKQB 276, 319 Sask. R. 238 (Sask. Q.B.), as supporting their position. However the facts in that case are distinguishable from the facts herein. In that case, the mental competency of the deceased at the time she executed both a Power of Attorney and a will were in issue. A lawyer in the law firm representing the estate drafted both documents and witnessed the deceased execute them. It was admitted by the estate lawyer that at some point her colleague may have to give evidence on the issue of capacity. The Court was satisfied that if the matter went ahead, that lawyer would most assuredly be required to testify. This is not the evidence in the case before me. 70 Before leaving this issue, I feel obliged to make comment on another conflict of interest raised by Mr. Dolan in a number of his affidavits filed on these applications but not addressed by counsel in his argument. At different parts of his affidavits, Mr. Dolan deposed that it was his under- 120 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

standing that Mr. Valkenburg represented Olive Muller under Rita’s in- struction as Power of Attorney in relation to the different sales of Olive’s property. The insinuation being that it would be a conflict of interest for Mr. Valkenburg’s office to represent a present client against a former client. 71 If Mr. Valkenburg did indeed represent Olive in the real estate transactions at the direction of Rita Kusch as Olive’s attorney and if there is a valid issue concerning whether the funds from those transactions were deposited to Olive’s account, Mr. Valkenburg would certainly be a witness and/or possibly a party to the litigation. If this were the case, his law firm would be in a conflict of interest position as far as their continued representation of Rita Kusch’s estate. However, there is no evidence before me that Mr. Valkenburg or his law firm represented Olive in the sale of any of her real property. 72 Mr. Dolan says that his understanding of Mr. Valkenburg’s involvement in the sale of Olive’s land is based on a comment made by James Kusch in his affidavit that James took care of all the arrangements for Rita to list and sell Olive’s cabin at Wakaw Lake and further that Rita signed the legal transfer documents under her Power of Attorney upon him cuing her to do so. But nowhere in that paragraph or in any other paragraph in James Kusch’s affidavit does it state that Mr. Valkenburg, or his law firm, was representing Olive on the sale of the cabin or any other parcel of land. As a result, I have no evidence that Mr. Valkenburg ever represented Olive Muller and as such there is no conflict of interest and no reason for me to restrain the law firm of Mathiason Valkenburg & Polishchuk from continuing to represent the estate of Rita Kusch at this time.

(g) Should the law firm of Mathiason Valkenburg & Polishchuk be directed to disclose its files pertaining to the will of the deceased, Rita Kusch, and any files wherein they acted for the deceased, Olive Muller, to Brian Dolan, the executor of the estate of Olive Regina Marie Muller? 73 The applicant, Brian Dolan as executor of Olive Muller’s estate, wants the law firm of Mathiason Valkenburg & Polishchuk to disclose their file in relation to the will of Rita Kusch and any file wherein they acted for the deceased, Olive Muller. Mr. Dolan deposed that as Rita Kusch’s mental capacity in August 2013 has been placed in question, the notes that Mr. Valkenburg made when he prepared and witnessed Rita’s Kusch Estate v. Muller Estate D.E. Labach J. 121

will on January 31, 2012, would be instructive on this issue of her mental capacity. He states that he does not know whether Mr. Valkenburg referred Rita to a medical professional to determine her capacity to sign her will but his file for Rita’s will may contain documents that indicate what, if any, concerns he had. 74 As to the second request, Mr. Dolan believes that Mr. Valkenburg, or his office, acted for Olive on the sale of her properties at the request of Rita Kusch as Olive’s attorney. He would like these files to be able to determine how much the properties were sold for, whether they were sold for fair market value, when they were sold and where the proceeds were sent or deposited. 75 It appears that counsel for Olive’s estate wrote counsel for Rita’s estate on both April 15, 2015 and May 5, 2015 requesting these documents. Counsel for Rita’s estate has not provided the requested documents. In relation to Mr. Valkenburg’s file concerning the will of Rita Kusch, it appears that their position is that these documents are not relevant to the within proceeding. 76 In cases such as this where disclosure of a lawyer’s files are being requested, the applicant must first demonstrate that the requested documents are relevant. If the material is found to be relevant, the privilege attaching to those documents must be shown to be waived, either explicitly or by implication. (See: Mort v. Saanich School District No. 63, [1999] B.C.J. No. 386 (B.C. S.C.) at para 15 [Mort]; Davie v. Davie Es- tate, 2000 BCSC 1517 (B.C. Master).) 77 The applicant has not satisfied me that Mr. Valkenburg’s wills file for Rita Kusch would be relevant. Relevancy refers to whether the documents or information under consideration may relate to a matter in issue. The question I should ask myself is whether the requested material might aid the applicant in a train of inquiry about the issues in the lawsuit. (See: Mort at para 16; Clausen v. Royal Inland Hospital, 2003 BCSC 496 (B.C. S.C. [In Chambers]) at para 7.) 78 Here, there has been no suggestion that Rita Kusch was not competent to execute her will in January 2012. The issue is whether she was mentally competent to sign a renunciation of probate and a disclaimer of her bequest in August 2013, some 20 months later. I fail to see how anything in Rita’s wills file would have any bearing on this issue. This is nothing but a fishing expedition on the part of the applicant and an ill- considered one at that. The applicant’s position must be that Rita Kusch was competent to sign her will in January 2012 and she remained compe- 122 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

tent when she executed the renunciation and disclaimer in August 2013. But the respondent has never suggested that Rita Kusch was not competent to sign her will. If the documents were produced and showed that in January 2012 Rita did not have the mental capacity to sign her will then she certainly would not have been competent to sign any documents thereafter. I do not understand how the applicant thinks that this would assist his argument. 79 There was some suggestion by counsel for the applicant in his May 5, 2015 letter that Mr. Valkenburg’s notes may also provide insight into Rita Kusch’s intentions in relation to her estate and beneficiaries. But, Rita Kusch’s intention regarding her estate has no relevancy or possible relevancy to the matter of whether Rita Kusch was mentally competent in August 2013. Therefore I am not satisfied that the contents of Mr. Valkenburg’s file regarding the Rita Kusch will has any relevancy to the issue in this case and as such, I am not prepared to order that those documents be disclosed. 80 Any files the Mathiason Valkenburg & Polishchuk law firm have wherein they represented Olive Muller in the sale of any of her properties are however a different story. While there is no evidence that the law firm did represent Olive in the sale of her properties, if indeed the law firm did represent Olive, these files are Olive’s files and I see no reason why Olive, or in this case her estate, should not be entitled to them. It would certainly assist the estate in determining whether these properties were sold for fair market value and whether all proceeds from the different real estate transactions were deposited into Olive’s bank account. Given that Olive was the client, albeit at the behest of Rita Kusch as her attorney, Olive has a right to these files and no waiver of privilege is required. As such, there will be an order that any files in the possession of Mathiason Valkenburg & Polishchuk wherein they acted for Olive Muller in the sale of any of her properties after February 29, 2008, be disclosed to the applicant.

(h) Should Brian Dolan, executor of the estate of Olive Regina Marie Muller, be granted leave to cross-examine Rodalyn Gamueda on her affidavit sworn April 21, 2015? 81 Given that I am ordering a trial of the issue there is no need for me to address this request at this time. If the applicant wishes to discover Ms. Gamueda then he can bring an application to do so pursuant to The Kusch Estate v. Muller Estate D.E. Labach J. 123

Queen’s Bench Rules. If Ms. Gamueda is called as a witness at trial, the applicant will have an opportunity to cross-examine her at that time.

Conclusion: 82 In summary then, I order the following: (1) There shall be a trial of the issue of whether Rita Kusch had the mental capacity to disclaim her interest in the estate of Olive Re- gina Marie Muller on August 13 and/or 23, 2013. The burden of proof will rest with the estate of Rita Kusch on a balance of probabilities. The parties are entitled to examine each other for discovery and the disclosure rules contained in The Queen’s Bench Rules apply to the trial of this issue; (2) The estate of Rita Kusch shall provide an accounting of the four sales of Olive Muller’s real property that Rita Kusch carried out as Olive’s attorney; (3) The law firm of Mathiason Valkenburg & Polishchuk shall provide a copy of any files wherein they acted for Olive Muller, or Rita Kusch as attorney for Olive Muller, in the sale of any of Ol- ive Muller’s real properties after February 29, 2008; and (4) Nothing shall be done under the grant of probate in the estate of Olive Regina Marie Muller without leave of the Court, pending the decision on the trial of the issue. 83 Since both parties experienced mixed success on their respective applications, there shall be no order as to costs. Order accordingly. 124 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

[Indexed as: Parmar Estate v. Tiwari] Paminder S. Parmar, Executor of the Estate of Surinder Kaur Parmar aka Surinder K. Parmer, Surinder Parmar and Dr. Surinder Parmar, Plaintiff and Dhavinder Tiwari, Defendant British Columbia Supreme Court Docket: Nanaimo S69559 2016 BCSC 30 Adair J. Heard: March 30-31; April 1-2, 7-10; August 17-20, 2015 Judgment: January 13, 2016* Estates and trusts –––– Gifts — Types of gifts — Inter vivos gift — Miscella- neous –––– Deceased had two adult sons and sister, T — Older son was executor of estate — Deceased was diagnosed with stage four esophageal cancer in De- cember 2008, will was prepared in October 2009, and deceased passed away on January 9, 2011 — Deceased left tangible personal property to be divided equally between sons, and failing agreement, to be divided in shares of substantially equal value and left residue of estate to her sons — Will further provided that, if on deceased’s death, she had no surviving dependants, all remaining property not otherwise disposed of was to go to T — Among estate assets was property owned by deceased registered in T’s name — On January 6, 2011, transfer for property was signed in which deceased was stated to be transferor and T was stated to be transferee — Transfer stated that consideration for transfer was $250,000, however, no consideration was paid — Transfer form was submitted by T for registration on January 21, 2011 — Executor commenced claim for relief to effect that estate was entitled to declaration that T held title to property in trust for estate and for order that T transfer property title to estate — T failed to show that deceased made valid and complete inter vivos gift of property to her — Accordingly, T held title to property in trust for estate and was ordered to cause legal title of property to be transferred to estate — Executor failed to show that on January 6, 2011, deceased lacked capacity to make valid gift of property — After property did not sell and as she recognized that her cancer was terminal, deceased probably did discuss with T possibility of transferring property to her as gift — Property was hard to sell and deceased’s general approach to estate planning was to dispose of her assets outside of her estate, leaving vir-

* Additional reasons at Parmar Estate v. Tiwari (2016), 2016 CarswellBC 834, 2016 BCSC 540 (B.C. S.C.). Parmar Estate v. Tiwari 125 tually nothing to go through probate — There were reasons why deceased would have been disposed to make gift to T, who had provided care and companionship to deceased during illness at and end of her life — Deceased’s intention to gift property to T was evidenced in deceased’s signing of transfer and provision of cheques to T in order to cover expenses — However, gift was never perfected during deceased’s lifetime and could not be perfected after death — Mere act of signing transfer form was not effective to transfer or deliver anything and did no more than to express intention to make gift — No conclusions could be drawn as to whereabouts of form transfer when deceased died — Second aspect of gift was payment of taxes and evidence showed that, before she died, deceased made no irrevocable delivery to T of money to pay taxes associated with property transfer. Contracts –––– Formation of contract — Consensus ad idem — Intention of parties –––– Deceased had two adult sons, and sister, T — Older son was executor of estate — Deceased was diagnosed with stage four esophageal cancer in December 2008, will was prepared in October 2009, and deceased passed away on January 9, 2011 — Deceased left tangible personal property to be divided equally between sons, and, failing agreement, to be divided in shares of substantially equal value and left residue of estate to her sons — Will further provided that, if on deceased’s death, she had no surviving dependants, all remaining property not otherwise disposed of was to go to T — Among estate assets was property owned by deceased registered in T’s name — On January 6, 2011, transfer for property was signed in which deceased was stated to be transferor and T was stated to be transferee — Transfer stated that consideration for transfer was $250,000, however, no consideration was paid — Transfer form was submitted by T for registration on January 21, 2011 — Executor commenced claim for relief to effect that estate was entitled to declaration that T held title to property in trust for estate and for order that T transfer property title to estate — Issue for determination was whether deceased and T were parties to contract whereby deceased agreed to sell and T agreed to purchase property for price of $250,000 — Contract claim failed as there was never any agreement between deceased and T that T would pay anything for property, much less pay $250,000 — In order for agreement to be binding upon parties, they must have reached consensus on essential terms of contract — T’s evidence was that she communicated firmly to deceased that she was not interested in property if she was expected to pay for it — Words and actions of deceased and T did not establish intention to be bound contractually — T held title to property in trust for estate and was ordered to cause legal title of property to be transferred to estate. Bills of exchange and negotiable instruments –––– Bills of exchange — Ca- pacity and authority — Forgery –––– Deceased had two adult sons, and sister, T — Older son was executor of estate — Deceased was diagnosed with stage four esophageal cancer in December 2008, will was prepared in October 2009, 126 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

and deceased passed away on January 9, 2011 — Deceased left tangible personal property to be divided equally between sons, and, failing agreement, to be divided in shares of substantially equal value and left residue of estate to her sons — Will further provided that, if on deceased’s death, she had no surviving dependants, all remaining property not otherwise disposed of was to go to T — Among estate assets was property owned by deceased registered in T’s name — On January 6, 2011, transfer for property was signed in which deceased was stated to be transferor and T was stated to be transferee — Transfer stated that consideration for transfer was $250,000, however, no consideration was paid — Transfer form was submitted by T for registration on January 21, 2011 — Exec- utor commenced claim for relief to effect that estate was entitled to declaration that T held title to property in trust for estate and for order that T transfer property title to estate — Executor alleged that T forged deceased’s signature on transfer document — Executor failed to satisfy burden on him to prove that signature on transfer document was forgery — Circumstantial evidence on which executor relied could not be given much weight — Deceased was not confined to bed during last week of her life — She was considered well and capable enough to sign surgical consents and other forms even though her younger son was available as her medical power of attorney and could have signed documents if necessary — Deceased was assessed by physical therapist after visit to bank on January 7, 2011 and there was nothing in therapist’s notes to indicate that deceased did not understand what was going on during assessment or that, at that stage, she lacked capacity to make valid gift — There was nothing in therapist’s report to suggest that, earlier in morning on January 6, 2011, deceased was too frail or weak to have left home to do business — Printed signature on transfer form was very similar, if not identical, to known printing of deceased — There was evidence that deceased’s energy level was reasonably good in morning and waned as day progressed and this would explain why letters on transfer form were legible and quality of writing was better than on documents signed on January 3 and 4 — Deceased recognized that document was important and this would help explain why she made effort to write clearly. Estates and trusts –––– Gifts — Types of gifts — Inter vivos gift — General principles –––– Capacity to make gift — Deceased had two adult sons, and sister, T — Older son was executor of estate — Deceased was diagnosed with stage four esophageal cancer in December 2008, will was prepared in October 2009, and deceased passed away on January 9, 2011 — Deceased left tangible personal property to be divided equally between sons, and, failing agreement, to be divided in shares of substantially equal value and left residue of estate to her sons — Will further provided that, if on deceased’s death, she had no surviving dependants, all remaining property not otherwise disposed of was to go to T — Among estate assets was property owned by deceased registered in T’s name — On January 6, 2011, transfer for property was signed in which deceased was stated to be transferor and T was stated to be transferee — Transfer stated that Parmar Estate v. Tiwari 127 consideration for transfer was $250,000, however, no consideration was paid — Transfer form was submitted by T for registration on January 21, 2011 — Exec- utor commenced claim for relief to effect that estate was entitled to declaration that T held title to property in trust for estate and for order that T transfer property title to estate — Issue arose as to whether deceased had capacity to make gift — Executor failed to show, on balance of probabilities, that on January 6, 2011, deceased lacked capacity to make valid gift of property — Gift of property had two aspects; actual transfer of property from deceased to T and payment of taxes associated with transfer — It was not type of transaction that was strange to deceased — Content of what deceased needed to understand with respect to property was less complicated than what she would have had to address if she had been disposing of all or most of her estate — Relevant capacity was that required to make inter vivos gift — Medical and surgical consents and other medical records from deceased’s hospitalizations provided strong support for conclusion that as of January 4, 2011, deceased’s mind was sufficiently sound that she had capacity to make valid gift of property — Executor failed to show, on balance of probabilities, that on January 6, 2011, deceased lacked capacity to make valid gift of property. Financial institutions –––– Deposits — Joint accounts — Other relationships –––– Siblings — Deceased had two adult sons, and sister, T — Older son was executor of estate — Deceased was diagnosed with stage four esophageal cancer in December 2008, will was prepared in October 2009, and deceased passed away on January 9, 2011 — Deceased left tangible personal property to be divided equally between sons, and, failing agreement, to be divided in shares of substantially equal value and left residue of estate to her sons — Will further provided that, if on deceased’s death, she had no surviving dependants, all remaining property not otherwise disposed of was to go to T — Among estate assets was bank account held jointly between deceased and T, opened in 1998 — Until her death, deceased was sole source of deposits to account — When deceased died, there was approximately $11,700 in account — Executor commenced action claiming in part that T held balance in trust for deceased’s estate on resulting trust — T met onus of proof on her to show that, with respect to balance remaining on bank account, deceased intended to make gift and rebutted presumption of resulting trust — Evidence established that deceased directed how account would be managed — Deceased was intelligent, well-educated woman who understood what having joint ownership, or ownership with designated beneficiary, meant, and that it meant that asset would transfer to remaining joint owner or designated beneficiary on her death — Deceased deliberately organized most of her financial affairs so that there would be few assets actually passing through her estate when she died — Evidence concerning how deceased organized her affairs supported conclusion that, when account was opened in 1998, she intended that upon her death, balance remaining in account would pass to T, who would be entitled to it as remaining account holder. 128 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

Cases considered by Adair J.: Bradshaw v. Stenner (2010), 2010 BCSC 1398, 2010 CarswellBC 2652, [2010] B.C.J. No. 1953 (B.C. S.C.) — considered Chung v. La (2011), 2011 BCSC 1547, 2011 CarswellBC 3002 (B.C. S.C.) — considered Edmondson v. Payer (2011), 2011 BCSC 118, 2011 CarswellBC 130, [2011] B.C.J. No. 139 (B.C. S.C.) — referred to Elder Estate v. Bradshaw (2015), 2015 BCSC 1266, 2015 CarswellBC 2069, 12 E.T.R. (4th) 73 (B.C. S.C.) — considered Faryna v. Chorny (1951), 4 W.W.R. (N.S.) 171, [1952] 2 D.L.R. 354, 1951 Car- swellBC 133, [1951] B.C.J. No. 152, [1952] 4 W.W.R. 171 (B.C. C.A.) — referred to Fuller v. Fuller Estate (2010), 2010 BCCA 421, 2010 CarswellBC 2555, 9 B.C.L.R. (5th) 236, 292 B.C.A.C. 182, 493 W.A.C. 182, 62 E.T.R. (3d) 212, [2010] B.C.J. No. 1901, 92 R.F.L. (6th) 34 (B.C. C.A.) — considered Kooner v. Kooner (1979), 100 D.L.R. (3d) 76, 1979 CarswellBC 786, [1979] B.C.J. No. 84 (B.C. S.C.) — followed Pecore v. Pecore (2007), 2007 SCC 17, 2007 CarswellOnt 2752, 2007 Carswell- Ont 2753, [2007] S.C.J. No. 17, 361 N.R. 1, 32 E.T.R. (3d) 1, 37 R.F.L. (6th) 237, 279 D.L.R. (4th) 513, 224 O.A.C. 330, [2007] 1 S.C.R. 795 (S.C.C.) — followed Schretlen Estate v. Turney (2010), 2010 BCSC 101, 2010 CarswellBC 167 (B.C. S.C.) — considered Stewart v. McLean (2010), 2010 BCSC 64, 2010 CarswellBC 110, 54 E.T.R. (3d) 59, [2010] B.C.J. No. 77 (B.C. S.C.) — considered Turner v. Turner (2010), 2010 BCSC 49, 2010 CarswellBC 87, 54 E.T.R. (3d) 80 (B.C. S.C.) — followed

ACTION by estate executor for relief including declaration that deceased’s sister held title to property and bank account balance in trust for estate.

Timothy J. Huntsman, for Plaintiff John R. Jordan, P. Pelzer, for Defendant

Adair J.: Introduction 1 On January 9, 2011, Dr. Surinder Parmar, who was born in October 1948, died of complications from cancer. In life, she was a very accomplished woman. She was a medical doctor and practiced most of her life in the Chicago area, specializing in nuclear medicine. Dr. Parmar had two sons. The elder, the plaintiff Paminder Parmar, is an engineer, and is the Parmar Estate v. Tiwari Adair J. 129

executor of his mother’s estate. The younger, Paramjit Parmar, is a medical doctor practicing in Colorado. 2 I will refer to Dr. Surinder Parmar as “Dr. Parmar.” I will refer to her son Paminder Parmar as “Mr. Parmar,” and her son Paramjit Parmar as “Dr. P.J. Parmar.” 3 The defendant, Dhavinder Tiwari (who was 62 as of the trial), is the younger sister of Dr. Parmar. She is a retired school teacher and lives in Nanaimo. 4 This action primarily involves property on Comox Road in Nanaimo (“Comox”) that Dr. Parmar owned. Comox is now registered in the name of Ms. Tiwari. A few days before Dr. Parmar’s death, a Form A transfer (the “Form A Transfer”) for Comox was signed, in which Dr. Parmar was stated to be the transferor and Ms. Tiwari was stated to be the transferee. Although the Form A Transfer states the consideration as $250,000, it is agreed that no consideration was paid. The Form A Trans- fer was not submitted for registration until after Dr. Parmar’s death. 5 The plaintiff claims relief in respect of Comox on a variety of alternative grounds. Generally, the plaintiff asserts that Dr. Parmar’s estate is entitled to a declaration that Ms. Tiwari holds title to Comox in trust for the estate, and to an order that Ms. Tiwari transfer title to Comox to the estate. 6 In response, Ms. Tiwari says that before Dr. Parmar died, she intended to make, and in fact made, a gift of Comox to her. Ms. Tiwari says that there is no basis to set the gift aside. She says that the plaintiff’s claims respecting Comox must therefore be dismissed. 7 The action also involves a bank account (the “RBC Account”) at a Royal Bank branch in Nanaimo. The RBC Account was a joint account in the names of Dr. Parmar and Ms. Tiwari. When Dr. Parmar died, there was about $11,700 in the RBC Account. The plaintiff alleges that Ms. Tiwari held this balance in trust for Dr. Parmar’s estate, on a resulting trust. Ms. Tiwari asserts that she was entitled to the balance in the RBC Account, as the surviving joint account holder.

A note on the Document Agreement 8 Certain documents were admitted into evidence pursuant to a document agreement. These documents consisted of clinical and hospital records from the University of Chicago Medical Centre, records from CNS Home Health Hospice (“CNS”) and records from Greatland Home 130 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

Health Services (“Greatland”). They were marked collectively as Ex. 27. I will refer to this collection as the “Clinical Records.” The parties agreed that the documents in this collection were authentic and admissible in evidence as business records. In addition, the results of Dr. Parmar’s blood tests (Ex. 9), an invoice from the University of Chicago Medical Centre (Ex. 10), prescription records (Ex. 11) and the prescriptions written and marked as Ex. 12 were admitted pursuant to the document agreement and as proof of the facts recorded. Other clinical, hospital and medical records were not covered by the document agreement.

Background (a) The Sisters 9 Both Dr. Parmar and Ms. Tiwari were born and grew up in India. Ms. Tiwari immigrated to Canada in 1971, when she was 19, and settled on Vancouver Island. She and Dr. Parmar had a brother and other extended family who were then living in B.C. 10 Dr. Parmar qualified as a medical doctor in India, and she married there. She came to Canada, alone, in 1973, with her brother as her spon- sor. She was then pregnant with Mr. Parmar. Both Dr. Parmar and Ms. Tiwari lived with their uncle and his family at their home in Victoria. Mr. Parmar was born in Victoria in 1973. Dr. Parmar worked for a time at Victoria General Hospital, and then moved with Mr. Parmar to New Brunswick to continue her medical practice. Dr. P.J. Parmar was born there probably around 1975. According to Ms. Tiwari, after Dr. Parmar moved from B.C., they kept in regular touch with one another by phone. 11 Dr. Parmar’s marriage was not a happy one. It ended in divorce when her children were still very young. After the divorce, Mr. Parmar lived mostly with his mother, and Dr. P.J. Parmar lived mostly with his father, although he spent extended blocks of time with his mother until he was about 12.

(b) Dr. Parmar establishes her medical practice in the Chicago area 12 Sometime probably in the early to mid-1980s, Dr. Parmar established her medical practice in the Chicago area. Initially, she practiced as a pathologist, but eventually moved into nuclear medicine, where she spent the balance of her career. She carried on what, by all accounts, was a busy and financially successful practice. She owned a home in Downers Grove, a Chicago suburb (I will refer to Dr. Parmar’s home as “Downers Grove”), and she was also able to accumulate significant assets. In B.C., Parmar Estate v. Tiwari Adair J. 131

in addition to Comox, Dr. Parmar owned another property in Nanaimo (“Fillinger”) and property in Burnaby (“Sunset”). At her death, Dr. Parmar’s net worth was in the millions of dollars (U.S.). 13 In 1998, Dr. Parmar and Ms. Tiwari opened the RBC Account. Dr. Parmar made all of the deposits to the RBC Account until it was closed by Ms. Tiwari after Dr. Parmar passed away.

(c) December 2008 - Dr. Parmar’s cancer diagnosis 14 Dr. Parmar was diagnosed with stage 4 cancer of the esophagus in December 2008. She communicated the very sad news to her sons, Ms. Tiwari and her brother in an e-mail message. It was a shock to everyone. 15 As of December 2008, Mr. Parmar was living in Sacramento, Califor- nia. He had moved there from Illinois a few years before. Otherwise, he had lived relatively close to his mother all of his adult life. Dr. P.J. Parmar was doing a medical residency in Colorado. Mr. Parmar decided then and there that he was going to move back to Illinois to be with his mother. He wrapped things up in California and moved back to Illinois in 2009. 16 As Ms. Tiwari recalled, after she received Dr. Parmar’s e-mail, she phoned her sister. She described the phone call as a “hard call.” Ms. Tiwari asked about treatments, and Dr. Parmar explained she was receiving chemotherapy and radiation, and would then have surgery. Ms. Tiwari asked her sister if there was anything she could do, and Dr. Parmar asked her to come and be with her. Accordingly, in January 2009, Ms. Tiwari took a leave of absence from her job as a teacher in Nanaimo and went to Chicago to be with her sister. As Ms. Tiwari recalled, shortly after her arrival at Downers Grove, Mr. Parmar arrived. 17 As Ms. Tiwari recalled, she accompanied Dr. Parmar when she went for treatments and sat with her during visits to the doctor. She recalled that both of Dr. Parmar’s sons also helped out a great deal. When Dr. Parmar finished chemotherapy later in January 2009, Ms. Tiwari returned briefly to Nanaimo. Ms. Tiwari then returned to Chicago in early February. Dr. Parmar had major surgery, and Ms. Tiwari remained with her at Downers Grove until Dr. Parmar recovered. Ms. Tiwari returned home to Nanaimo in April. However, as Ms. Tiwari recalled, she and Dr. Parmar talked on the phone almost every day. 18 Dr. Parmar came to Nanaimo for a visit in May 2009 and to celebrate the wedding of Ms. Tiwari’s daughter (and Dr. Parmar’s niece). Dr. Parmar stayed with Ms. Tiwari for about a month before returning home. 132 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

19 According to Ms. Tiwari, in the summer of 2009, Dr. Parmar told her that, despite treatment and surgery, she was not 100% cured. Ms. Tiwari decided to take early retirement from her teaching position, so that she would be free to spend time with Dr. Parmar. 20 In September 2009, Dr. Parmar saw a lawyer in Chicago concerning the preparation of a new Will. The lawyer’s notes indicate that Dr. Parmar wanted to “keep things simple.” The lawyer’s notes do not shed any light on Dr. Parmar’s views concerning the RBC Account because no details at all are disclosed concerning Dr. Parmar’s bank accounts. In the resulting Will, stated to be signed by Dr. Parmar on October 1, 2009, she appointed Mr. Parmar as her executor, with Dr. P.J. Parmar as the alternate. According to the Will, Dr. Parmar left any automobile that she owned at her death to Mr. Parmar, and gave her remaining tangible personal property to her sons, to be divided as they should agree, and failing agreement, divided in shares of substantially equal value. Dr. Parmar then left the residue of her estate to her sons, equally. The Will provided further that, if, on Dr. Parmar’s death, she left no surviving descendants, all remaining property not otherwise disposed of was to go to Ms. Tiwari. 21 Although Dr. Parmar took the prudent step of updating her Will in the fall of 2009, the evidence shows that, by that time, Dr. Parmar had already arranged for the disposition on her death of a very substantial portion of her assets (particularly financial assets) outside of her estate, through (for example) use of a trust (in the case of her home in Downers Grove) and specific beneficiary designations. According to Dr. P.J. Parmar (whose evidence was unchallenged in this respect), this was deliberate estate planning on Dr. Parmar’s part. According to Mr. Parmar, this approach created problems for him as executor trying to administer Dr. Parmar’s estate, since there were no assets or funds available to pay for the administration. 22 In October 2009, Dr. Parmar also signed two power of attorney documents, appointing Ms. Tiwari as her attorney. One is stated to be an “En- during Power of Attorney (British Columbia - for the appointment of one attorney),” and the second is stated to be an “Illinois Statutory Short Form Power of Attorney for Property.” 23 Earlier in 2009, Mr. Parmar had announced he planned to be married in the fall. This was going to be a very happy event. According to Ms. Tiwari, Dr. Parmar asked her to help with the planning and do some shopping in Vancouver for special items and outfits for the wedding, Parmar Estate v. Tiwari Adair J. 133

which Ms. Tiwari did. Ms. Tiwari then went to Illinois in October 2009 to be with her sister. However, Dr. Parmar’s cancer had returned and she was undergoing more chemotherapy. 24 Mr. Parmar married in October 2009. He and his wife went to Africa for their honeymoon. His wife was at university in Iowa, and when Ms. Tiwari and others were at Dr. Parmar’s home and able to look after her, Mr. Parmar spent time with his wife in Iowa. As Mr. Parmar recalled, his mother was in relatively good health in the early part of 2010. 25 Ms. Tiwari remained at Downers Grove with Dr. Parmar until the summer of 2010. Dr. Parmar came to Nanaimo for a visit that summer, and to finalize arrangements for the sales of Sunset and Fillinger. Both of those sales completed. An accountant, Mr. Hough, assisted in dealing with the tax matters associated with Dr. Parmar’s disposition of these properties. A lawyer, Mr. Brown, handled the legal aspects of the con- veyances. Both Mr. Hough and Mr. Brown were located in Nanaimo. 26 Comox had been listed for sale for some time, and eventually an offer materialized that Dr. Parmar accepted. However, as of the completion of the sales of Fillinger and Sunset, the offer for Comox had fallen through. 27 According to Ms. Tiwari, Dr. Parmar was discouraged when the sale of Comox did not complete, because she had wanted to dispose of all three properties. As Ms. Tiwari recalled, Dr. Parmar talked to her on a number of occasions about what the options might be for dealing with Comox. According to Ms. Tiwari, Dr. Parmar told her that she had asked both of her sons whether either of them wanted Comox, but neither was interested. 28 After the summer of 2010, Dr. Parmar and Ms. Tiwari returned to Downers Grove together. Mr. Parmar was living at Downers Grove, as was Ms. Tiwari’s son (who was studying at one of the Chicago area uni- versities). Ms. Tiwari remained in Illinois, living with her sister at Dr. Parmar’s home in Downers Grove, and sleeping in the same bedroom, until Dr. Parmar died on January 9, 2011. 29 According to Mr. Parmar, when his mother returned to Downers Grove from Nanaimo, spots were found on her liver during a scan. The cancer had metastasized. Dr. Parmar decided that she did not want further treatment. Dr. Parmar, Mr. Parmar and his wife went on a cruise together in November, and things seemed more positive. Mr. Parmar and his wife were expecting their first child, which was a very happy event. 134 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

(d) In Mid-December 2010, Dr. Parmar is admitted to hospice care 30 However, in early December 2010, Dr. Parmar had an episode of very severe pain. Mr. Parmar took her to the emergency department at one of the nearby hospitals. The news was grim: Dr. Parmar was terminal. In mid-December, she was recommended for and admitted to home hospice care, which during December, was provided by CNS. In due course, medications were prescribed for Dr. Parmar to assist in managing her pain, to help her sleep and to address her nausea. The medications included morphine and a Fentanyl patch. Morphine was being administered at doses of between 0.5 mg and 2.5 mg a few times a day, and the Fentanyl patch dose was also a low dose. Dr. Parmar was also taking promethazine for nausea, ibuprophen for pain and was on oxygen to assist her breathing. 31 According to Mr. Parmar, after December 11, 2010, his mother’s condition deteriorated noticeably. He testified that, previously, she had done puzzles (such as Sudoku) regularly and enjoyed activities such as knitting. However, according to Mr. Parmar, after December 11, she no longer did Sudoku; she did not read the newspaper; she would go through the motions of knitting, when in fact she was not; and she responded strangely to questions. As Mr. Parmar recalled, she seemed to be asleep all or most of the time. He recalled a frightening incident on December 29, when he said that Dr. Parmar, who was frequently nause- ous, tried to open the car door when they were travelling on the freeway. 32 Ms. Tiwari’s recollections are quite different from those of Mr. Parmar. As she recalled, although Dr. Parmar tired very easily, she continued with activities such as Sudoku and knitting. Dr. Parmar also had regular visitors (in addition to the hospice care providers), with whom she interacted directly (rather than through Ms. Tiwari). Dr. Parmar would voice her preferences for music and certain prayers. She was able to dress herself with some help from Ms. Tiwari. As Ms. Tiwari recalled, Dr. Parmar would accept help when she needed it, but wanted to do things on her own. When Dr. P.J. Parmar suggested it, they would go for a drive. Even in the last week of her life, Dr. Parmar got out of bed every day, changed her clothes and saw visitors. According to Ms. Tiwari, her sister was able to communicate with her and with friends who visited, and stay on topic, right up to the end of her life. 33 Dr. P.J. Parmar’s observations and recollections were also considera- bly more positive than those of his brother, at least until January 7, 2011. He, too, recalled that his mother often had visitors to the house. He recal- Parmar Estate v. Tiwari Adair J. 135

led that, in the last week of her life, he and his mother discussed her assets and finances, and he made a detailed list of what she was telling him. When Dr. Parmar’s assets and affairs were examined after her death, what she communicated to Dr. P.J. Parmar turned out to be reasonably reliable and accurate. As Dr. P.J. Parmar recalled, the two of them discussed all aspects of her diagnosis, prognosis, treatment, and also her breathing and nutrition. As he recalled, Dr. Parmar was able to express herself clearly and could stay on topic. He observed that, most days, she continued to try and complete Sudoku puzzles. He explained that they tried to get out of the house most days, just to keep his mother engaged. 34 The hospice care notes generally indicate that there were days and periods when Dr. Parmar was alert and engaged, and other periods when she was less so, or much less so. However, in my opinion, the Clinical Records do not support the very gloomy picture described by Mr. Parmar. Rather, they are more consistent with the evidence of Ms. Tiwari and Dr. P.J. Parmar. 35 As Ms. Tiwari recalled, despite Dr. Parmar’s failing health, Dr. Parmar continued to discuss options concerning Comox with her. Ac- cording to Ms. Tiwari, Dr. Parmar suggested transferring Comox to Ms. Tiwari. In response, Ms. Tiwari told Dr. Parmar that she did not want to purchase Comox and did not have the money to buy it in any event. As Ms. Tiwari recalled, Dr. Parmar then told her that it would be a gift, and Ms. Tiwari would not have to pay anything for Comox. However, according to Ms. Tiwari, she then reminded Dr. Parmar that there would be tax consequences to any disposition, as there had been when Sunset and Fillinger were sold. In response, Dr. Parmar said that she would take care of the taxes. 36 Mr. Parmar left Downers Grove on December 24, 2010, and returned on December 28. 37 On December 26, 2010, Dr. Parmar made an audiobook for her grandchildren, in which she read a story, “Guess how much I love you.” Dr. Parmar printed her name in block capitals on the cover page.

(e) The last ten days 38 By late December 2010, ensuring that Dr. Parmar had proper and adequate nutrition and fluids was a serious problem, since she was frequently nauseated and vomiting, and had trouble swallowing. On De- cember 29, 2010, Mr. Parmar, Dr. Parmar and Ms. Tiwari went to the 136 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

University of Chicago Medical Centre to complete some preliminary steps in preparation for a procedure (placement of a jejunostomy tube, or “J-tube,” to facilitate Dr. Parmar being fed) planned for Dr. Parmar the following day. At 9:15 a.m., Dr. Parmar signed a “Consent to Diagnostic or Therapeutic Procedure” form (the “Medical Consent”), consenting to the procedure. The Medical Consent was co-signed by the physician, under a “Statement of Physician” that read in part: I certify that at the time the above consent was signed, the person who signed was capable of understanding the nature of the patient’s physical condition and of the proposed diagnostic or therapeutic procedure; ... 39 Dr. Parmar, Ms. Tiwari and Mr. Parmar returned to the hospital the morning of December 30, 2010, in anticipation of the procedure being done that day. Dr. P.J. Parmar was also present at the hospital on Decem- ber 30. 40 The Clinical Records disclose that Dr. Parmar arrived at the hospital around 9:00 a.m. Her mental status is described as “alert, oriented, NAD” (which I take to be an abbreviation for “no apparent distress”). However, despite multiple attempts, the J-tube could not be placed that day. The Clinical Records disclose that Dr. Parmar had some difficulty lying flat because of a “recurrent left malignant pleural effusion.” Around 2:40 p.m., Dr. Parmar signed a “Consent to Medical/Surgical Procedures” form (a “Surgical Consent”) consenting to a thoracentesis (i.e., a procedure to remove excess fluids in the space between the lungs and chest wall). The hospital procedure team removed about 1.6 litres of fluid. Although Dr. Parmar’s respiratory status improved after that procedure, the J-tube still could not be placed. Dr. Parmar was then admitted to the hospital medicine service for overnight observation, as well as surgical consultation. She remained in hospital overnight. Dr. P.J. Parmar testified (and I find) that he remained in hospital with her, and slept on the floor in her hospital room. 41 The Surgical Consent is different from the Medical Consent. For example, the Surgical Consent does not have the “Statement of Physician” section. However, at the bottom of the Surgical Consent, after the place for the signature of the patient (or the patient’s representative), and the date and time, the form states: As the Physician or LIP obtaining this consent, I have explained the anticipated benefits, relevant risks and alternatives with this patient and/or representative. Parmar Estate v. Tiwari Adair J. 137

There is then a place for the physician to sign, print his or her name, date the form (including the time of day) and state the physician’s pager number. 42 The Surgical Consent signed by Dr. Parmar at 2:40 p.m. on Decem- ber 30, 2010 was signed and dated by the physician at the same time. 43 According to Ms. Tiwari, at some point on December 30, she, Dr. Parmar, Mr. Parmar and Dr. P.J. Parmar were all together in a hospital waiting area. As she recalled, Dr. Parmar asked Mr. Parmar whether he was interested in Comox. However, because Dr. Parmar’s voice was quite low, Dr. P.J. Parmar then repeated what she had said. According to Ms. Tiwari, Mr. Parmar said no. Then he was asked whether it was okay if Dr. Parmar gave Comox to Ms. Tiwari (using the name “Masi” to identify Ms. Tiwari), and Mr. Parmar said, “sure.” As Ms. Tiwari recalled, it was then that she agreed to accept Comox as a gift from Dr. Parmar. 44 Dr. P.J. Parmar also recalled a discussion about Comox, in the hospital pre-op waiting area, early in the day on December 30, before any of Dr. Parmar’s medical procedures. The discussion involved himself, Mr. Parmar, Dr. Parmar and Ms. Tiwari. As Dr. P.J. Parmar recalled, Mr. Parmar’s wife was also present. Dr. P.J. Parmar explained that each time Dr. Parmar would go into hospital for a significant procedure, she would “get into the mode” of trying to finalize things, just in case she did not come out of the procedure. He also recalled that the subject of Comox, and whether either he or Mr. Parmar had any interest in the property, had come up on a number of occasions before this. This time, as Dr. P.J. Parmar recalled, Dr. Parmar asked him whether he wanted Comox and he said that he did not. Dr. P.J. Parmar recalled that she asked Mr. Parmar the same question, but he did not hear any response from Mr. Parmar. 45 Mr. Parmar also recalled a discussion about Comox on December 30 in the hospital waiting area. As he recalled, both he and Ms. Tiwari were in the waiting area about midday. His wife came and Dr. P.J. Parmar arrived shortly afterwards. However, as Mr. Parmar recalled, Dr. Parmar was not present. As Mr. Parmar recalled, at one point, he and his wife got up to get something to drink, and they started walking toward a vending machine. According to Mr. Parmar, at that point, as he was walking away, Ms. Tiwari called to him and “mumbled” something about Comox, along the lines of asking him if he had any plans. As he recalled, he looked at Dr. P.J. Parmar, who said something about Moe Sihota (who 138 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

Mr. Parmar described as a distant relative). Mr. Parmar responded to the effect of “okay, whatever.” According to Mr. Parmar, he returned to the waiting area after getting a drink, and no one mentioned Comox for the rest of the afternoon. 46 According to Mr. Parmar, he never spoke to Dr. Parmar about her making a gift of Comox to Ms. Tiwari or to anyone, although she had discussed selling the B.C. properties with him. 47 Mr. Parmar did not stay at the hospital the night of December 30. 48 The Clinical Records disclose that, on December 31, after the surgery consultation, it was recommended that Dr. Parmar have some further surgery (including placement of a pleural catheter) on January 3, 2011. The records disclose further that Dr. Parmar and “her son” (who I conclude must be Dr. P.J. Parmar) were agreeable to this plan, and that they requested that they be dismissed from hospital over the holiday weekend, to return for surgery on January 3 (a Monday). 49 Dr. Parmar signed a Surgical Consent on December 31. Only p. 2 (with Dr. Parmar’s and the physician’s signatures) is in evidence; p. 1, which describes the procedure(s), is missing. However, I conclude that this Consent most likely relates to the procedures that were to be done on January 3, 2011. 50 On January 2, 2011, before he left Downers Grove for several days, Mr. Parmar arranged for a priest to come to the house, and a prayer was done. As he recalled, Dr. Parmar fell asleep while the priest was there. According to Mr. Parmar, he observed that Dr. Parmar was not doing Sudoku and was making strange comments. Mr. Parmar and his wife left Downers Grove sometime in the afternoon on January 2, 2011. He did not return until January 7. 51 Dr. Parmar and Dr. P.J. Parmar returned to the University of Chicago Medical Centre on January 3, 2011 for the procedures that had been recommended on December 31. Ms. Tiwari was unsure whether she accompanied them. Although her recollection was that she went with Dr. Parmar every time Dr. Parmar went to hospital, she appeared to have no real recollection of this particular hospitalization, even when documents relating to it were put to her. 52 Mid-morning on January 3, 2011, Dr. Parmar signed a Surgical Con- sent consenting to the placement of a left pleurex catheter. The form is co-signed by a physician. Parmar Estate v. Tiwari Adair J. 139

53 The operative report for January 3 describes the procedures performed, including the placement of a “Dobbhoff” tube (being placed for nutritional purposes). The surgery was completed uneventfully. 54 Dr. Parmar remained in hospital overnight. Dr. P.J. Parmar slept in her room. Dr. Parmar was discharged home on January 4. According to the discharge summary, as a result of a consultation with a specialist, a laparoscopic J-tube placement for Dr. Parmar “for feeding purposes” was scheduled for Friday, January 7, 2011. The medical records include a Surgical Consent dated January 4, 2011 at 8:30 a.m. whereby Dr. Parmar consents to a “laparoscopic, possible open, jejunostomy tube placement.” On the patient’s signature line on p. 2, Dr. Parmar’s signature appears twice. The Consent is co-signed by a physician. Dr. Parmar also signed each page of a 3-page form titled “University of Chicago Medical Centre After Visit Summary” form. The form is dated January 4, 2011 at 17:45, and it notes the surgery planned for January 7. A “Social Work Assess- ment Note” indicates that Dr. Parmar and Dr. P.J. Parmar discussed a change in the hospice care provider (someone to replace CNS) with a social worker at the Hospital on January 4. 55 The discharge summary also records at about 6:30 p.m. on January 4: [Patient] given discharge instructions. [Patient] verbalized understanding. No distress noted. Family at bedside. [Patient] transferred off unit per wheelchair with transportn staff. 56 According to Ms. Tiwari, following the discussion about Comox with Dr. Parmar and the others at the hospital on December 30, 2010, and her agreement to accept Comox (along with Dr. Parmar’s payment of any taxes) as a gift from Dr. Parmar, she began (at Dr. Parmar’s request) to make inquiries about how this could best be done. On December 30, she contacted Mr. Hough by e-mail. In response, Mr. Hough communicated a suggestion from Mr. Brown, whereby Ms. Tiwari and Dr. Parmar would become joint tenants of Comox. According to Ms. Tiwari, when she communicated to Dr. Parmar what Mr. Brown and Mr. Hough were sug- gesting, Dr. Parmar’s reaction was that what they were proposing was too complicated and a simpler solution needed to be found. Dr. Parmar wanted Ms. Tiwari to contact Mr. Moe Sihota, a B.C. lawyer whose wife was Dr. Parmar and Ms. Tiwari’s cousin, for some advice. 57 On January 4, 2011, Ms. Tiwari sent an e-mail to Mr. Brown with a copy to Mr. Hough. Her message reads in part: I like the option that John [Hough] suggested that: 140 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

I purchase half the interest in the property thereby becoming a joint tenant so when something happens to my sister then the property automatically transfers to me. I would like to persue [sic] this option. Ms. Tiwari acknowledged on cross-examination that her message mentioned nothing about Dr. Parmar giving her Comox as a gift. 58 Mr. Brown responded: Dhavinder, I will need written confirmation from Surinder and will have to send documents for her to sign in front of a lawyer in the U.S. She will need to be able to show she is competent to have the lawyer there witness her signature. 59 According to Ms. Tiwari, it was around this time that she got Mr. Sihota more involved. According to Ms. Tiwari, Mr. Sihota initially suggested a method essentially structured as a sale, but where Ms. Tiwari would give a cheque to Dr. Parmar and Dr. Parmar would then give a cheque back to Ms. Tiwari. However, according to Ms. Tiwari, Dr. Parmar considered this method was not sufficiently simple to be accept- able. In the end, according to Ms. Tiwari, it was based on Mr. Sihota’s advice that Dr. Parmar decided simply to transfer Comox to Ms. Tiwari. Mr. Sihota prepared the Form A Transfer for that purpose and sent it to Ms. Tiwari by e-mail on January 5, 2011. As Ms. Tiwari recalled, she had a copy of the Form A Transfer printed off and then gave it to Dr. Parmar. The next time she saw the document was on January 6, 2011, when she, Dr. Parmar and Dr. P.J. Parmar were at the bank and Dr. Parmar took out the document to sign before a notary. 60 Ms. Tiwari acknowledged that, when he sent the Form A Transfer, Mr. Sihota told her to have Mr. Parmar and Dr. P.J. Parmar agree in writing to the transfer of Comox to her, and that she did not follow his advice. However, Ms. Tiwari explained she did not do this because both of her nephews had been present on December 30 when Dr. Parmar asked whether it was alright for her to give Comox to her, and they both said it was. At trial, Ms. Tiwari repeated a number of times that she was not asking for Comox to be transferred to her and did not want it. 61 In the morning on January 5, 2011, Dr. Parmar was assessed at home by a hospice care nurse, Ms. Emmah Tande. Ms. Tande was employed by the proposed new hospice care provider, Greatland. The assessment began probably around 9:45 a.m. and finished shortly after 11:00 a.m. Parmar Estate v. Tiwari Adair J. 141

62 Ms. Tande completed a detailed 8-page form, with numerous headings, sub-headings and topic areas, and, after the assessment, she also completed a much shorter nursing note. 63 In the form, Ms. Tande noted under “Homebound Reason(s),” “Diffi- cult and taxing effort to leave home; Dependent with ADLs, Requires assistive device(s), Impaired ability/safety with driving.” She noted under “Abuse/Neglect/Exploitation,” “No signs and symptoms of abuse, neglect and/or exploitation.” Under the heading “Physical/Neurological” and the topic “Cognitive Functioning,” she noted “Alert/oriented, able to focus and shift attention, comprehends and recalls task directions inde- pendently.” Dr. Parmar’s general appearance was described as “neat appearance/appropriately groomed,” and her behaviour and speech were both described as “appropriate.” Under the heading “Physical/Pain Eval- uation,” and in response to the question “Has this patient had a formal Pain Assessment using a standardized pain assessment tool (appropriate to the patient’s ability to communicate the severity of the pain,” Ms. Tande noted “Yes, and it does not indicate severe pain.” She noted the rating for Dr. Parmar’s current pain, on a scale of 0-10, at 5. Under the heading “Physical/Hematologic/Lymphatic,” Ms. Tande noted “Fatigue onset: New,” “Fatigue frequency: Constant,” and “Fatigue site of weakness: generalized.” Under the heading “Functional Status,” Ms. Tande noted (among other things) that Dr. Parmar needed someone to assist her in putting on her clothing and in maintaining “toileting hygiene and/or adjust clothing.” Under the topic “Ability to use telephone,” Ms. Tande noted “Able to dial numbers and answer calls appropriately as desired.” 64 In the nursing note, Ms. Tande noted Dr. Parmar’s discharge from hospital on January 4, 2011, and recorded (among other things) that Dr. Parmar “was taken to the hospital due to poor appetite, increased weakness, due to inadequate nutritional intake, a nasogastric tube was in- serted.” She noted that Dr. Parmar reported pain level was 5 (on a scale of 10) on movement and that Dr. Parmar did not want pain medication “at this time.” She also recorded that Dr. Parmar “is weak and frail, her color is dusky, her mobility is limited due to weakness.” Ms. Tande also noted that “Pt has a doctors appt today, blood work will be done at the doctors office.” 65 During Ms. Tande’s visit on January 5, Dr. Parmar signed an “Ad- mission Service Agreement Home Health” form (the “Home Health Ad- mission Form”). The Home Health Admission Form contains terms whereby (among other things): the patient consents to Greatland provid- 142 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

ing care and treatment (as prescribed by the patient’s physician) to the patient in her home; the patient consents to the release of information for the purposes of treatment, payment and health care operations; the patient certifies her liability for payment for the services; and the patient acknowledges receipt of information on topics such as advance directives and basic home safety. 66 There are two places for the “admitting clinician” (in this case, most probably Ms. Tande) and the patient to sign the Home Health Admission Form. There is no dispute that Dr. Parmar signed the document. Her first signature is similar to her signatures on documents signed at the Univer- sity of Chicago Medical Centre on January 3 and 4, 2011, although she appears to have written her last name twice. The signature is in cursive writing, but the writing is quite small and the letters are indistinct. Her second signature (under the heading “Acknowledgement of Receipt of Notice of Privacy Practices”) is altogether different. The letters are printed in what appears to be block capitals, the printing is very poor and not very legible, and the letter “P” in Dr. Parmar’s surname is repeated multiple times. The plaintiff’s expert, Dr. Lonn Myronuk, referred to the repetition of the “P” as a perseverative error, being a type of action that is repeated beyond what is appropriate and is made when the individual cannot monitor responses. There is a space in this section of the Form that begins “Patient unable to sign because.” However, that section is blank. 67 Another copy of the Home Health Admission Form, with a second page, was put to Dr. P.J. Parmar during cross-examination. Dr. P.J. Parmar signed the second page. He explained that the first page was signed by Dr. Parmar at the end of Ms. Tande’s assessment. He rejected the proposition put to him that the first page had been signed by his mother at the beginning of Ms. Tande’s assessment. He explained further that he signed the second page because his mother was falling asleep. 68 I accept Dr. P.J. Parmar’s evidence concerning when the Home Health Admission Form was signed by Dr. Parmar and concerning the circumstances in which he signed the second page. Based on the contents of the Form, the patient is being asked to consent and agree to the provision of services in the future. The purpose of Ms. Tande’s visit was not to provide services, but to make an assessment concerning what services Dr. Parmar might need and would be of benefit to her, given her overall circumstances. The assessment process is not analogous to the consent required for surgery, for example. Parmar Estate v. Tiwari Adair J. 143

69 As Dr. P.J. Parmar recalled, after Ms. Tande left, some of Dr. Parmar’s friends came over to the house to visit. Then, in the afternoon, he took Dr. Parmar out for an appointment with her family physician, Dr. Sharif, which included a visit to the lab for some blood work. This outing was uneventful. 70 The results of the lab tests were admitted into evidence as part of Ex. 9. Both the plaintiff’s expert, Dr. Myronuk, and the defendant’s expert, Dr. Aindrias O’Breasail, provided some explanation and interpretation of the results. I will discuss the experts’ opinions more fully below. 71 On January 5, 2011, Dr. Sharif wrote a prescription for Dr. Parmar for the drug lactulose, and provided that the prescription could be refilled twice. Both Dr. Myronuk and Dr. O’Breasail agree that lactulose is a treatment to control symptoms of hepatic encephalopathy (“HE”), a condition that Dr. Myronuk described as delirium caused by liver failure. However, Dr. O’Breasail explained that lactulose is prescribed to remove nitrogen contents from the human gut, and its primary aim is to lower ammonia levels. He explained that raised ammonia levels can be associated with HE. However, he explained that it does not follow that, if an individual has raised ammonia levels, the individual will be suffering from HE. 72 There was no opinion evidence, including from either Dr. Myronuk or Dr. O’Breasail, that Dr. Parmar was suffering from HE, and no evidence that a physician ever made such a diagnosis for her. Dr. O’Breasail explained that HE is a clinical diagnosis; it is not a diagnosis that is made based on laboratory test results. 73 Dr. P.J. Parmar recalled sitting with his mother in her bedroom later in the day on January 5. As he recalled, Dr. Parmar mentioned to him that she had a paper that needed to be signed to give Comox to Ms. Tiwari, and they should go to her bank the next day to have it signed before a notary. He could not recall whether or not Ms. Tiwari was with them when they had this discussion. Ms. Tiwari’s evidence was inconclusive. 74 Dr. P.J. Parmar also recalled discussing with Dr. Parmar the tax im- plications of transferring Comox to Ms. Tiwari. As he recalled, around January 4 or 5 (he could not recall which day), he was present in Dr. Parmar’s bedroom when she signed some blank cheques. As he recalled, Dr. Parmar told him that the cheques were to be used for paying the taxes in connection with the transfer of Comox to Ms. Tiwari. According to Dr. P.J. Parmar, the reason she signed more than one cheque was because 144 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

sometimes cheques needed to go to different places. As he recalled, Dr. Parmar left the cheques either on her bedside table or in her purse. There is no dispute that, after Dr. Parmar died, these cheques were in fact located in her purse. 75 A total of four cheques, signed by Dr. Parmar, and numbered 3217, 3218, 3219, 3220, are in evidence. Dr. Parmar’s cheque record book is also in evidence. As I note below, after Dr. Parmar died, Dr. P.J. Parmar filled in cheque no. 3218, and sent it to Ms. Tiwari. With respect to the remaining three cheques, only no. 3217 is dated (“1/6/2011”), and none of the cheques have any information noted in the “For” section, indicating the purpose of the cheque. None of the four cheques is recorded in any way in Dr. Parmar’s cheque record book. 76 According to Ms. Tiwari, when she agreed to accept Comox from Dr. Parmar as a gift, Dr. Parmar told her that there would be signed blank cheques in her purse to cover taxes and expenses. Ms. Tiwari repeated that, without such a commitment from Dr. Parmar, she would never have accepted her sister’s gift because she did not want Comox. She could not say whether she was in fact present when Dr. Parmar signed the four blank cheques, and she was also unable to say when Dr. Parmar signed the cheques. There was some inconsistency between her evidence at trial, and evidence she gave at her examination for discovery concerning the cheques. However, Ms. Tiwari admitted that, while Dr. Parmar was alive, she never received any cheque or cheques from her, and Dr. Parmar never transferred any money to her, to pay taxes and expenses associated with the transfer to her of Comox. 77 In the morning on January 6, 2011, Dr. P.J. Parmar, Dr. Parmar and Ms. Tiwari left Downers Grove. Dr. P.J. Parmar was driving Dr. Parmar’s car, Dr. Parmar was in the front passenger seat and Ms. Tiwari was sitting in the back passenger seat. Dr. P.J. Parmar had put Dr. Parmar’s wheelchair in the trunk of the car and brought along a small portable oxygen tank. As Dr. P.J. Parmar recalled, he drove first to Dr. Parmar’s regular bank branch, where she had been doing all of her banking since the 1980s. According to Dr. P.J. Parmar, they arrived at the bank about 9:00 a.m., when it opened. He wheeled Dr. Parmar into the branch, and then asked to see a notary. The notary had a desk and Dr. P.J. Parmar moved a chair to make room for Dr. Parmar’s wheelchair. He and Ms. Tiwari then also sat down at the desk. As Dr. P.J. Parmar recalled, the notary asked Dr. Parmar for some identification and asked her to produce what she wanted to sign that day, which was the Form A Trans- Parmar Estate v. Tiwari Adair J. 145

fer. As Dr. P.J. Parmar recalled, Dr. Parmar got out her identification and was able to respond appropriately to the notary’s questions. According to Dr. P.J. Parmar, he saw Dr. Parmar sign the Form A Transfer, although he did not notice that her name was printed rather than written. 78 Ms. Tiwari’s recollection is a little different from Dr. P.J. Parmar’s. She recalls that, in the morning on January 6, when she and Dr. Parmar woke up, Dr. P.J. Parmar said to them “let’s go for a ride.” According to Ms. Tiwari, they would often take Dr. Parmar out for some sightseeing. As Ms. Tiwari recalled, Dr. Parmar said yes to what Dr. P.J. Parmar suggested, and also said that “We need to get the Comox document signed too.” As Ms. Tiwari recalled, they got into the car. She was sitting in the back passenger seat. Dr. P.J. Parmar drove around to a few parks and then stopped at a bank where the notary was. On cross-examination, she agreed that the bank was in a strip mall (something that was not put to Dr. P.J. Parmar on cross-examination). They all went into the bank. She recalled that the notary did not have an office; rather, he had a desk in what she called “the lobby.” She testified that she saw Dr. Parmar sign the Form A Transfer. Otherwise, Ms. Tiwari’s recollection of details was poor. 79 Neither Ms. Tiwari nor Dr. P.J. Parmar was asked and neither testified about what happened to the Form A Transfer after it was signed. 80 According to Dr. P.J. Parmar, after the three of them left the bank, and since this was going to be the outing for the day, he drove Dr. Parmar and Ms. Tiwari around a little, passing by a couple of parks. Then they returned to Downers Grove. 81 Beginning about Noon on January 6, 2011, Dr. Parmar was seen by a physical therapist from Greatland for an assessment, which took about 50 minutes. The therapist completed an evaluation form with his observations and comments. Under “Mental status: alert + oriented X,” he cir- cled 2 (rather than 1 or 3). He did not check the box “frequently confused.” There are a number of items printed on the form, for example: Speech, Vision, Hearing, Pain, Edema and so on, with space for the therapist’s comments or observations. In the space beside “Speech,” the therapist appears to have written “diminished cognit.” Although the therapist identified a number of deficits (for example, strength, balance, range of motion and bed mobility), he indicated Dr. Parmar’s rehab potential as “good.” 146 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

82 After the therapist’s visit, Dr. Parmar was fatigued. Dr. P.J. Parmar acknowledged that he signed the therapist’s “Physical Therapy Progress Note,” rather than Dr. Parmar. 83 On cross-examination, it was put to Dr. P.J. Parmar that on January 5 and 6, he signed several other documents, rather than having his mother sign them. Some of these were included in the bundle marked as Ex. 49, and Dr. P.J. Parmar acknowledged that he signed the documents. How- ever, he rejected the suggestion put to him that he only signed the documents because Dr. Parmar’s condition had deteriorated to the extent that she was incapable of signing, and he explained why he signed the documents in question. Essentially, the explanation was these were documents that anyone could sign, and there was no need for Dr. Parmar, personally, to sign them. 84 I accept Dr. P.J. Parmar’s evidence on this point. It is apparent that a number of these documents are in respect of medical equipment (for example, a wheelchair, portable oxygen system and so on) being delivered for Dr. Parmar’s use, some of which was recommended and delivery organized when she was in hospital on January 3 and 4. In the circumstances, Dr. P.J. Parmar’s explanation makes sense and is reasonable. There was no need to trouble Dr. Parmar to sign a document acknowl- edging delivery of equipment, when her son was available to do it. There was nothing inherent in the contents of the documents (despite what the service provider might have thought) that, in my opinion, required a signature from the patient herself. 85 However, about mid-morning on January 7, 2011, Dr. P.J. Parmar left a voice-mail message for Mr. Parmar in which he said: Hey, this is P.J. Mom continues to not do very well and doing poorer each day in many ways, so I don’t know, whatever you are up to, you might want to be around here. I think Karishma is coming this evening, but anyway, I just want to let you know things aren’t going so well. Bye. 86 According to Dr. P.J. Parmar, he had no concerns about Dr. Parmar’s mental functioning until the evening on January 7. Until then, although he had noticed gradual changes, he and his mother had been able to carry on normal conversations; she continued to do puzzles such as Sudoku; she discussed her affairs with him. However, in the afternoon on January 7, Dr. P.J. Parmar noticed that Dr. Parmar seemed slow to rouse from a nap, and she was less responsive and more confused. She seemed increasingly lethargic, and was unable to answer questions properly. Parmar Estate v. Tiwari Adair J. 147

87 Mr. Parmar returned to Downers Grove in the evening on January 7 (a Friday). According to Dr. P.J. Parmar, that evening, he and Mr. Parmar decided that, the next morning, they would take Dr. Parmar to what Dr. P.J. Parmar understood (based on Mr. Parmar’s advice) was the nearest hospital, Adventist Hinsdale Hospital (“Hinsdale”). Dr. P.J. Parmar explained that what needed to be done was some imaging tests to check on fluid in Dr. Parmar’s lungs and blood tests to check on Dr. Parmar’s liver enzymes, and those tests could be done anywhere. As far as he was concerned, it was unnecessary in the circumstances to make a long drive to the University of Chicago Medical Centre. 88 Accordingly, in the morning on January 8, 2011, Dr. P.J. Parmar took Dr. Parmar to the emergency department at Hinsdale. Ms. Tiwari went with them. Mr. Parmar and his wife arrived at the hospital a little later. As Dr. P.J. Parmar recalled, he talked to the doctors in the emergency department and gave them his assessment of his mother’s condition and a history of her present illness. On cross-examination, it was put to him that, in giving a history, he told the emergency doctors that Dr. Parmar had had “altered mental status for the past three days.” This was something recorded on a record apparently obtained from Hinsdale. Dr. P.J. Parmar rejected what was put to him and testified he did not provide the history on this particular document, although he had provided a history to the doctor shown as completing a separate record headed “Emergency Reports.” He also denied that he reported to Dr. Sharif that Dr. Parmar had had an “altered mental status for the past three days.” 89 Dr. Sharif did not testify. There is no admissible evidence concerning her views or conclusions or diagnoses in relation to Dr. Parmar as of January 8, 2011, and no admissible evidence that she was the source of what is set out in the “History” section of the Hinsdale document. There is also no evidence that Dr. Sharif told Dr. P.J. Parmar to take Dr. Parmar to Hinsdale on January 8 (rather than the decision being made by Dr. Parmar’s sons), and Dr. P.J. Parmar denied it on cross-examination. The Hinsdale documents are not covered by the Document Agreement, and are not admissible as business records. 90 Some tests, including blood tests, were done throughout the day. The last set of results came back about 5:30 p.m. According to Dr. P.J. Parmar, the blood tests showed that the levels of toxins in Dr. Parmar’s blood had increased very significantly, to a point where life was not sus- tainable and Dr. Parmar could not recover. With this very sad news, Dr. 148 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

P.J. Parmar, Mr. Parmar, Ms. Tiwari and Dr. Parmar left Hinsdale and returned home to Downers Grove. 91 As Ms. Tiwari recalled, when they got home, Dr. Parmar told her that she wanted to take a shower. She recalled her sister saying that this was so Ms. Tiwari would not have to bathe her after Dr. Parmar died. It was very emotional. As Ms. Tiwari recalled, she prepared the shower for Dr. Parmar, and when it was ready, Dr. Parmar came in and then asked Ms. Tiwari to leave, which she did. After Dr. Parmar was finishing bathing, Dr. Parmar put on new pajamas that Mr. Parmar had bought for her. 92 Dr. Parmar died at home about Noon on January 9, 2011. According to Ms. Tiwari, about an hour or so before she died, she spoke on the telephone with her aunt from Victoria. This was the same aunt who had looked after Dr. Parmar when she first arrived in B.C.

(f) The Form A Transfer is registered on January 21, 2011 93 The Form A Transfer was submitted by Ms. Tiwari for registration on January 19, 2011, and registered on January 21, 2011. 94 There is no dispute that, before she died, Dr. Parmar never gave Ms. Tiwari any of the blank cheques she had signed and that were in her purse, and never gave Ms. Tiwari any money to cover taxes and other expenses associated with transferring Comox from Dr. Parmar’s name into Ms. Tiwari’s name. 95 On January 28, 2011, Ms. Tiwari sent an e-mail message addressed to both Dr. P.J. Parmar and Mr. Parmar concerning Comox. The message read in part: Now the Comox street property I was not able to sell even at a rediculous [sic] price so your mother decided to transfer it to me. But she was not able to sign the paperwork that came later to deal with the taxes. Following are the costs: [described] Total of $95,000 Surinder had signed a blank cheque, it is in her purse. I need you to fill in the amount, make it payable to me and fedex it to me ASAP [I] will be using my line of credit and pay the amount on Monday while waiting for this cheque. 96 According to Mr. Parmar, he did not read this e-mail message until much later. However, Dr. P.J. Parmar responded promptly. He removed one of the blank cheques his mother had signed - cheque no. 3218 - from her purse, dated it, filled in the amount of $95,000, made it payable to Parmar Estate v. Tiwari Adair J. 149

Ms. Tiwari and filled in the “For” section as “Comox property.” He then sent the cheque to Ms. Tiwari. However, Dr. Parmar’s bank refused to honour the cheque. When Ms. Tiwari informed Dr. P.J. Parmar about this, he made arrangements to personally wire funds to Ms. Tiwari. 97 When Dr. Parmar died, the RBC Account had a balance of $11,736.98. After Dr. Parmar died, Ms. Tiwari withdrew the remaining balance and closed the Account.

The Expert Witnesses 98 Two expert witnesses testified at trial: Dr. Myronuk and Dr. O’Breasail. Both are medical doctors and psychiatrists. Dr. Myronuk also has a sub-specialty in geriatric psychiatry. However, when Dr. Parmar died, she was only 62. Given Dr. Parmar’s age, I would not place any greater weight on Dr. Myronuk’s opinions merely because of his additional qualification in geriatric psychiatry, as compared with Dr. O’Breasail’s opinions. 99 Dr. Myronuk’s reports were marked as Ex. 25 and Ex. 26. 100 Dr. Myronuk’s opinion concerning Dr. Parmar’s capacity is found in Ex. 25. His opinion was based on four assumed facts: [Dr. Parmar] a retired specialist physician, died on 9 January 2011 with cancer of the esophagus that had spread widely through her body. [Dr. Parmar’s] terminal illness entailed liver failure, kidney failure, and malnutrition. [Dr. Parmar] would have experienced significant pain and discomfort in the course of her terminal illness, and would have required strong opioid narcotic analgesics for comfort. A Home Health Admission Services Agreement [Ex. 3] signed by [Dr. Parmar] on 5 January 2011 and by the admitting RN shows that [Dr. Parmar] was unable to spell her own surname correctly, with multiple errors. 101 Dr. Myronuk then set out a section entitled “Background.” There, he said [italics in original; footnotes omitted]: Delirium is the medical term for impaired mental functions of attention, awareness, and other cognitive abilities that “... is a direct physi- ological consequence of another medical condition, substance intoxi- cation or withdrawal ... or exposure to a toxin, or is due to multiple etiologies.” Delirium is prevalent among hospitalized patients, and is identified in up to 83% of patients at end of life. The average dura- 150 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

tion of cognitive impairment before death in patients with advanced cancer is 16 days. Frank delirium in this population is present for a median of 6 days prior to death. Dr. Myronuk also described kidney failure, liver failure and malnutrition. 102 Dr. Myronuk then discussed executive cognitive functions, and said [italics in original; footnotes omitted]: Executive cognitive deficits will impair a person’s capacity to make reasoned, deliberative decisions. Failure of monitoring, inhibition and problem-solving lead to persons with executive cognitive dys- function to make perseverative errors, the abnormal repetition of a response or behaviour when it is no longer relevant or appropriate. Dr. Parmar showed a pattern of perseverative error when putting her name on the Home Health Admission Services Agreement Form on 5 January 2011 repeating the letter “P” in her name several times. 103 Dr. Myronuk then set out his opinion: Based on the information at hand, it is more probable than not that [Dr. Parmar] was suffering from delirium in the final days of her life, and most probably would have had cognitive impairment for more than two weeks prior to her death. It is typical for delirium to fluctuate in its intensity, ... [Dr. Parmar] may have had lucid intervals in the course of her terminal decline, but in general as a patient’s condition deteriorates the clouding of consciousness worsens and intervals of clear mentation are less frequent and less complete. By the time [Dr. Parmar] signed the Home Health Admission Services Agree- ment on 5 January 2011, the day prior to the real estate transaction in question, she was demonstrating clear evidence of significantly impaired executive cognitive function. 104 On cross-examination, Dr. Myronuk clarified that by “clear evidence” he meant the perseverative error in the Home Health Admission Form, and the failure to correct it. He agreed that an individual can have cognitive impairment and still function. He said that he did not have enough information to say whether whatever cognitive impairment Dr. Parmar was experiencing was disabling for her. 105 In Ex. 26, Dr. Myronuk provided an interpretation of the laboratory results of the blood work done for Dr. Parmar, particularly on January 5 and January 8, 2011. In a section titled “Background,” Dr. Myronuk il- lustrated the lab results in three separate graphs: ammonia, sodium and blood urea nitrogen; total bilirubin, potassium and magnesium; and liver enzymes. He said that the data in his graphs showed evolving organ failure in the kidneys and liver, although he acknowledged on cross-exami- Parmar Estate v. Tiwari Adair J. 151

nation that he was not intending to say that the progression of the toxins in Dr. Parmar’s blood was linear (as the graphs implied). He said further (still under the heading “Background”) that, around January 5, 2011 [footnotes omitted], [Dr. Parmar] entered a state of accelerated deterioration in metabolic state with progression to critically abnormal levels of potassium and ammonia by the morning of January 8th. Ammonia elevation is the central cause of hepatic encephalopathy, and clinically significant neurocognitive impairment may be established well before other overt signs of liver failure are present. 106 Dr. O’Breasail submitted two reports (dated September 4, 2014 and January 7, 2015), which were marked as part of Ex. 57. 107 In his September 4, 2014 report, Dr. O’Breasail commented on Dr. Parmar’s pain medications: morphine and the fentanyl patch. In his opinion, a dose of morphine of between 0.5 mg-2.5 mg once or twice a day is a relatively low dose, and should not have had a significant effect on Dr. Parmar’s mental status. The fentanyl patch dose of 25 mcg per hour was also a low dose. In his opinion, on reviewing Dr. Parmar’s various signatures in the three weeks prior to her death, there was not a pattern of perseverative type behaviour, and the repeated Ps on the Home Health Admission Form was not, in itself, a pattern. Dr. O’Breasail disagreed with Dr. Myronuk’s opinion that it was probable Dr. Parmar was suffering from delirium in the final days of her life. In his opinion, there was nothing to indicate delirium, which he described as a syndrome or group of symptoms caused by a disturbance in the normal functioning of the brain. He explained that an individual with delirium has a reduced awareness of and responsiveness to the environment, and delirium is often marked by illusions, hallucinations and delusions. He said, although delirium is common, particularly close to death, it is not present invariably. 108 Dr. O’Breasail’s report dated January 7, 2015 comments on Dr. Myronuk’s report Ex. 26 (and also provides some comments on other reports that were not admitted into evidence). Dr. O’Breasail agreed with Dr. Myronuk that, based particularly on the data from January 8, Dr. Parmar had entered a phase of marked deterioration in metabolic state, and had critically abnormal levels of potassium and ammonia. Since there were no data from January 6 or 7, Dr. O’Breasail disagreed with Dr. Myronuk that Dr. Parmar entered a phase of accelerated deterioration beginning on January 5, with progression to critically abnormal levels the morning of January 8. The graphs, in Dr. O’Breasail’s opinion, there- 152 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

fore presented a misleading picture (something that Dr. Myronuk did not really dispute). 109 In closing submissions, Mr. Huntsman argued that, on the issue of Dr. Parmar’s capacity, the reports of Dr. Myronuk “should occupy the field to the exclusion of” Dr. O’Breasail’s opinions. Mr. Huntsman attacked Dr. O’Breasail on a number of fronts, and he submitted that Dr. O’Breasail’s reports were “a mess of unproven facts and unstated assumptions.” 110 For example, Mr. Huntsman criticized Dr. O’Breasail for denying that Dr. Parmar was suffering from HE, and argued that Dr. O’Breasail’s evidence was “not believable in the circumstances of the overwhelming evidence that she was.” I have noted above that there is no admissible evidence from anyone qualified to give it, including Dr. Myronuk, that Dr. Parmar was diagnosed as suffering from HE. Dr. O’Breasail explained that it is a clinical diagnosis, not one made on the basis of results of blood tests. A medical diagnosis, and the reasoning that led to that diagnosis, is a matter of expert opinion. The court cannot itself use clinical or medical records to arrive at a medical diagnosis in the absence of expert opinion. See Edmondson v. Payer, 2011 BCSC 118 (B.C. S.C.), at paras. 38-39. 111 In my view, much of Mr. Huntsman’s attack on Dr. O’Breasail was unfair, and ultimately unpersuasive. In any event, even accepting Dr. Myronuk’s opinion that Dr. Parmar was “probably” suffering from delirium does not mean that Dr. Parmar, in the final days of her life, was constantly suffering from or exhibiting the signs and symptoms of delirium. Dr. Myronuk himself acknowledges that it is “typical for delirium to fluctuate in intensity.” This, together with the opinions expressed by Dr. O’Breasail and the observations made by others (Ms. Tande, the physical therapist, Dr. P.J. Parmar and Ms. Tiwari), would support the conclusion that, up until January 7, 2011, Dr. Parmar at the very least had periods of lucidity in which she was able to function reasonably well, although she was increasingly weak and became fatigued quickly.

Discussion and analysis (a) Comments on credibility and reliability 112 In closing argument, Mr. Huntsman mounted a fierce attack on the credibility and reliability of both Ms. Tiwari and Dr. P.J. Parmar. For example, with respect to Ms. Tiwari, Mr. Huntsman submitted that she would not hesitate to lie if she thought she could get away with it. He Parmar Estate v. Tiwari Adair J. 153

submitted Ms. Tiwari was evasive and non-responsive during cross-examination at trial, and, rather than telling the truth, gave answers that were tailored to advance her position that the transfer to her of Comox was a gift. With respect to Dr. P.J. Parmar, Mr. Huntsman submitted that he treated the witness box as “a pulpit to provide a lecture in support of” Ms. Tiwari’s side of the story, and that in all other respects he was “evasive, deceptive and defensive.” 113 With respect to Mr. Parmar, Mr. Huntsman acknowledged that, when giving his evidence, Mr. Parmar was “wound up, distressed and ex- tremely excitable,” and even during his direct examination, Mr. Parmar had difficulty staying on subject and controlling his emotions. On the other hand, Mr. Huntsman submitted that on cross-examination, Mr. Parmar (although argumentative) was still responsive, not evasive, and conceded or agreed with points where it was reasonable to do so. 114 Mr. Jordan argues that both Ms. Tiwari and Dr. P.J. Parmar were credible and reliable witnesses, and says that their evidence concerning key events should be accepted. 115 With respect to Mr. Parmar, Mr. Jordan submitted that most of his evidence was unhelpful, since he was not present during much of the last week of Dr. Parmar’s life, including on January 5 and 6. In Mr. Jordan’s submission, Mr. Parmar’s strong perspective, that his mother, when very close to death, was victimized by Ms. Tiwari and Dr. P.J. Parmar, permeated virtually everything he had to say and seriously impeded his ability to give credible and reliable evidence. 116 Both Mr. Huntsman and Mr. Jordan cite Bradshaw v. Stenner, 2010 BCSC 1398 (B.C. S.C.) (one of the leading cases on credibility analysis), and Madam Justice Dillon’s discussion at paras. 186 and following. The art of assessment of credibility involves examination of various factors such as: the witness’s ability and opportunity to observe events; the firm- ness of the witness’s memory; the witness’s ability to resist the influence of interest to modify his or her recollection; whether the witness’s evidence harmonizes with independent evidence that has been accepted; whether the witness changes his or her testimony during direct and cross- examination; whether the witness’s testimony seems unreasonable, impossible, or unlikely; whether a witness has a motive to lie; and the de- meanour of a witness generally. Moreover, the assessment of a witness’s credibility must reasonably subject the witness’s story to an examination of its consistency with the probabilities of the surrounding conditions or circumstances. The real test of the truth of the story of a witness in such a 154 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

case must be its harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place and in those circumstances. See Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (B.C. C.A.), at pp. 356-357. 117 In my opinion, Mr. Parmar was indeed very excitable and had difficulty focussing on answering questions, even during his direct examination. I agree with Mr. Jordan that Mr. Parmar’s strong perspective, that his mother was victimized by his aunt and his brother, permeated virtually everything he had to say. Mr. Parmar had a story and point of view that he wished to communicate to the court, and was very intent on com- municating it. In my opinion, these factors make the reliability of his evidence highly questionable. I have concluded that he is very bitter towards his brother (whom he is suing in Illinois), and will go to great lengths (including accusing him of practicing medicine illegally) to try and damage him. He exhibited the same feelings of bitterness and a very high level of distrust towards his aunt, Ms. Tiwari. It became apparent that Mr. Parmar was personally involved in investigating matters with a view to bringing litigation against his aunt and brother, and developing a case against his aunt. Rather than tell me about the facts, Mr. Parmar was very anxious to communicate to me what he suspected or had turned up or concluded as a result of his investigations. This, unfortunately, was completely unhelpful. I needed facts. It also affected, negatively, the weight I am prepared to place on Mr. Parmar’s evidence. 118 So, for example, I am less inclined to place much weight on Mr. Parmar’s observations concerning Dr. Parmar. The event he describes on December 29 was certainly frightening, but it is hard to reconcile what I am being asked to infer (that Dr. Parmar had, by that time seriously deteriorated cognitively) with events that same day and the days following at the University of Chicago Medical Centre. Moreover, Mr. Parmar’s obvious and very strong suspicions about his aunt and his brother make him an unreliable reporter of their conduct, in my opinion. 119 Ms. Tiwari was, at times, evasive and argumentative on cross-examination. However, she was often faced with argumentative, multi-part, somewhat convoluted questions to try and answer. Assumptions put to her in questions (for example, that Dr. Parmar almost died on December 30) were not borne out by the Clinical Records. On the other hand, there were contradictions between her evidence at trial and her evidence on discovery concerning Dr. Parmar’s cheque, and the contradictions were noteworthy. I have concluded that I need to be cautious before accepting Parmar Estate v. Tiwari Adair J. 155

Ms. Tiwari’s uncorroborated evidence, except where she has made statements against her interest. 120 Dr. P.J. Parmar, unlike Mr. Parmar, was in a position to observe his mother in the last ten days of her life. His evidence is, generally, supported by the evidence in the Clinical Records, which are of great assistance and are reliable evidence with respect to the medical procedures performed and Dr. Parmar’s condition, particularly during Dr. Parmar’s hospitalizations on December 30 and 31, 2010 and January 3 and 4, 2011. His evidence concerning the visit to the bank and the notary the morning of January 6, 2011 is, in the circumstances, reasonable. Moreo- ver, although Dr. P.J. Parmar was pressed on many points during cross- examination, his evidence concerning January 6 was not challenged at all. 121 Dr. P.J. Parmar was also, at times, argumentative and combative during cross-examination. However, that reaction was predictable in the face of many of the questions put to him. For example, during one series of questions, Mr. Huntsman pressed Dr. P.J. Parmar to admit that he was not present at the hospital with Dr. Parmar on December 30. However, as the Clinical Records disclosed, Mr. Huntsman’s questions were based on a false assumption, namely, that there was a single hospital admission for Dr. Parmar that day. The Clinical Records disclosed (as Dr. P.J. Parmar testified) there were in fact two - one in the morning and one later in the day - and that Dr. Parmar was admitted to hospital overnight on Decem- ber 30, as Dr. P.J. Parmar testified. 122 Of course, Dr. P.J. Parmar also exhibits a high level of animosity towards Mr. Parmar. In that sense, the feelings of the brothers are, regretta- bly, mutual.

(b) Was there a contract whereby Dr. Parmar would sell and Ms. Tiwari would purchase Comox for $250,000? 123 The first claim made in the amended notice of civil claim is that Dr. Parmar and Ms. Tiwari were parties to a contract whereby Dr. Parmar agreed to sell and Ms. Tiwari agreed to purchase Comox for the price of $250,000. Judgment is then sought for $250,000 as the unpaid purchase price. Although the plaintiff’s position was presented somewhat differ- ently in closing argument than in the notice of civil claim, I propose to deal with what I will call the “contract claim” first. 124 In my opinion, the contract claim must fail because, on the evidence, there was never any agreement between Dr. Parmar and Ms. Tiwari that 156 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

Ms. Tiwari would pay anything for Comox, much less pay $250,000. It is a trite principle of law that in order for an agreement to be binding between the parties, they must have reached consensus on the essential terms of their contract. Ms. Tiwari’s evidence, which I accept, was that she communicated firmly to Dr. Parmar that she was not interested in Comox if she was expected to pay for it. In my opinion, the words and actions of Dr. Parmar and Ms. Tiwari do not establish any intention to be bound contractually.

(c) Did Dr. Parmar sign the Form A Transfer? 125 In the amended notice of civil claim, the plaintiff alleged: 25. ... the Defendant Tiwari impersonated [Dr. Parmar] and forged the signature of [Dr. Parmar] on the Form A Transfer. 26. [Dr. Parmar] always signed her name in a style that was very different to that which is on the Form A Transfer and [Dr. Parmar] had not signed anything for at least 3 weeks prior to the execution of the Form A Transfer. She had been too ill to sign anything. 27. The signature on the Form A Transfer bears a striking resemblance to the handwriting of the Defendant Tiwari, while bearing no resemblance whatsoever to the normal signature of [Dr. Parmar]. 126 In Part 2 of the amended notice of civil claim (Relief sought), the plaintiff alleged, under the heading “Impersonation and Fraud”: 10. A declaration that the Defendant Tiwari impersonated [Dr. Parmar] and forged her signature upon the Form A Transfer such that the title to the Property was fraudulently converted by the Defendant Tiwari. 127 However, at trial, and apart from the speculation volunteered by the plaintiff during his testimony (none of which was admissible as evidence), a genuine attempt to prove the scenario alleged was essentially abandoned. It was never put to Ms. Tiwari or Dr. P.J. Parmar, during their cross-examinations, that on January 6, 2011, Ms. Tiwari impersonated Dr. Parmar before a notary and herself signed the Form A Transfer. Other parts of the scenario advanced by Mr. Parmar during his testimony, for example, that Ms. Tiwari and Dr. P.J. Parmar deliberately sought out a bank branch where Dr. Parmar was not known, were also not put to Dr. P.J. Parmar or Ms. Tiwari during cross-examination. The notary, Mr. Sperlik, whose signature and stamp appears on the Form A Transfer, was not called as a witness. Parmar Estate v. Tiwari Adair J. 157

128 Nevertheless, the plaintiff argued in closing that the Form A Transfer was a forgery. He advanced the argument based on evidence concerning Dr. Parmar’s circumstances in the days leading up to January 6, 2011, the weather around Chicago on January 6, Dr. Parmar’s general approach to business matters, and the appearance of Dr. Parmar’s signatures on documents signed around the same time (as compared with the signature on the Form A Transfer), combined with a submission concerning the lack of credibility of Dr. P.J. Parmar and Ms. Tiwari. 129 The burden of proof that the Form A Transfer is a forgery is on the plaintiff. 130 There was no admissible opinion evidence from a handwriting expert. 131 In my opinion, the circumstantial evidence on which the plaintiff relies cannot be given much weight. Dr. Parmar was not a shut-in, confined to bed, during the last week of her life. She was in hospital on January 3 and 4, where it is clear she interacted with a number of people. The Clinical Records for those days (apart from mention of some confusion in the morning on January 4) do not indicate that she was unable to appreciate and understand what was going on around her. Rather, they indicate the reverse. She was considered well enough and capable enough to sign Surgical Consents and other forms, even though Dr. P.J. Parmar was available as her medical power of attorney and could have signed hospital documents if necessary. Mr. Parmar’s very strong feeling and opinion that his mother would not have transferred real estate without speaking to a lawyer and an accountant is not proof of the facts. Based on Ms. Tiwari’s evidence, Mr. Brown, Mr. Hough and Mr. Sihota were all involved. 132 In addition, there is Dr. Parmar’s assessment by the physical therapist to consider. The assessment began around Noon on January 6, 2011. This is after the visit to the bank described by Dr. P.J. Parmar and Ms. Tiwari. Although, in his evaluation report, the therapist noted a number of areas of concern, there is nothing in his notes to indicate that Dr. Parmar did not understand what was going on during the assessment, or that, at that stage, she lacked the capacity to make a valid gift. In my opinion, there was nothing in the therapist’s report to suggest that, earlier in the morning on January 6, 2011, Dr. Parmar was too frail and weak to have left home to do some business. 133 It is true there are some differences between Dr. P.J. Parmar’s description of the trip to the notary, and Ms. Tiwari’s description. How- ever, their evidence would not necessarily be more credible if they had 158 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

told identical stories. As I noted above, Dr. P.J. Parmar’s evidence that he drove his mother and Ms. Tiwari to Dr. Parmar’s regular bank branch was not challenged during his cross-examination. His evidence that they met with the notary there, and that he saw Dr. Parmar sign the Form A Transfer there, was also not challenged. 134 Ms. Tiwari’s evidence about the events on the morning of January 6 was more vague than Dr. P.J. Parmar’s. However, I do not find this sur- prising, since (according to Dr. P.J. Parmar) it was he and Dr. Parmar who, the evening before, had agreed they were going to go to the notary the next morning, and Dr. P.J. Parmar was doing the driving. On the essentials, they agree: the three of them went to the bank and Dr. Parmar signed the Form A Transfer before a notary. More importantly, and despite accusing Ms. Tiwari during cross-examination of lying under oath, plaintiff’s counsel never put to her that she had in fact forged her sister’s signature on the Form A Transfer. 135 In my opinion, given the seriousness of an allegation of forgery, and the stigma attached to it, it was incumbent on plaintiff’s counsel to put the plaintiff’s version of events to Ms. Tiwari and Dr. P.J. Parmar during cross-examination. 136 I turn then to the signature on the Form A Transfer. The plaintiff says that the most compelling evidence of forgery is that there is no correla- tion between it and the many other examples of Dr. Parmar’s signature in evidence. 137 Many factors can affect and change the appearance and quality of a signature. These can include fatigue, inattention, illness, physical weakness, age (although, at 62, Dr. Parmar could hardly be considered eld- erly), circumstances in which the signature is written (e.g., on a hard surface, on a soft surface, standing up, sitting down), the space for the signature, the writing implement, and so on. Dr. Parmar’s signature from 2004 on the document marked as Ex. 19 barely resembles her signatures on the signature card from 2009 marked as Ex. 14 or the signature card for the RBC Account (Ex. 63) from 1998. The individual letters in her signature from 2009 are quite indistinct, for example. In addition, the style of printing on Ex. 19 is completely different from the printing on Ex. 21. The only person who identified the printing on Ex. 19 as Dr. Parmar’s was Mr. Parmar. Neither Dr. P.J. Parmar nor Ms. Tiwari was asked. The printing on Ex. 19 is also quite different from the printing and handwriting on the 3-page document marked as Ex. 22, which Mr. Parmar Estate v. Tiwari Adair J. 159

Parmar identified as Dr. Parmar’s printing and handwriting. I note that much of Ex. 22 is printed in block capitals. 138 In the last ten days of her life, Dr. Parmar was asked to, and did, sign many documents. 139 Each surgical procedure, for example, required Dr. Parmar to sign a Surgical Consent, and she signed other forms during her visits to the University of Chicago Medical Centre. Dr. Parmar’s signatures on these documents are not at all like what appears on the Form A Transfer. For example, her signature on the January 3 Surgical Consent is very small and almost illegible. The quality of handwriting has deteriorated from the signatures on documents signed December 29 and December 30. The handwriting has deteriorated even further on the Surgical Consent signed January 4, although a reasonable explanation would be that, when this document was signed, she was still recovering from the surgery the day before. Indeed, that might well explain the appearance of Dr. Parmar’s signatures on the other documents signed at the hospital on January 4. The duplicate signature on the Surgical Consent might be explained by Dr. Parmar attempting to sign more clearly on a document she knew was important to the hospital and her surgeons. 140 Dr. Parmar’s first signature on the Home Health Admission Form shows little improvement from January 4 in terms of the quality of the handwriting. In addition, the second signature, with the perseverative error, is very odd indeed. 141 In contrast to what can be seen on these documents, the signature on the Form A Transfer is not in cursive writing, but printed in block capitals. Instead of the tiny, cramped handwriting on the January 3 and January 4 hospital documents, the letters are legible. 142 Ms. Tiwari concedes that what appears on the Form A Transfer is not Dr. Parmar’s normal signature. However, in closing argument, Mr. Jor- dan submitted that the writing is identical to the printed signature on the cover of “Guess how much I love you,” Ex. 21, which is known to be Dr. Parmar’s printing. 143 I agree. I find that, on the morning of January 6, 2011, and as Dr. P.J. Parmar testified, he drove himself, Dr. Parmar and Ms. Tiwari to Dr. Parmar’s regular bank, and there Dr. Parmar signed the Form A Transfer before the notary. The printed signature is, in my opinion, very similar (if not identical) to known printing of Dr. Parmar (Ex. 21 and Ex. 22). There is evidence that Dr. Parmar’s energy level was reasonably good in the morning (and waned as the day went on), which would help explain why 160 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

the letters on the Form A Transfer are legible and the quality of the writing is better than on documents signed on January 3 and 4. I also conclude that Dr. Parmar, as she discussed with Dr. P.J. Parmar the evening before, recognized that the document was important, and this would also help explain why she would make an extra effort to write clearly. 144 Accordingly, I find that the plaintiff has failed to satisfy the burden on him to prove that the signature on the Form A Transfer is a forgery.

(d) Did Dr. Parmar have the capacity to make a gift? 145 The plaintiff next argues that, as of January 6, 2011, Dr. Parmar lacked the capacity to make a valid gift. He relies on Dr. Parmar’s attempt on December 29, 2010 to get out of the car on the freeway, the perseverative error in the Home Services Admission Form and the opinion evidence of Dr. Myronuk to support this argument. 146 Mr. Huntsman submits that, in this case, given the circumstances in which the Form A Transfer was signed (just before Dr. Parmar died), the relevant test for capacity is that applied to testamentary dispositions, rather than inter vivos gifts. This point is discussed by Barrow J. in Schretlen Estate v. Turney, 2010 BCSC 101 (B.C. S.C.), at para. 32 [un- derlining added]: [32] Counsel for the estate argues that the capacity necessary to make an inter vivos gift is the same as that needed to make a valid testamentary disposition....I accept that the capacity necessary for these two forms of giving may be the same in some situations. In particular, the more that an inter vivos gift resembles a testamentary disposition, the greater the similarity in the required capacity. For example, when a gift involves a transfer from the donor into the joint names of the donor and others, the required capacity is more likely to be akin to that necessary to make a valid Will. That is so because the gift will take full effect only on the death of the donor, assuming the donor survives the other joint owners. That was the situation in Brydon and in the authorities that support of the proposition that the required capacity in the two situations is the same. In circumstances where the inter vivos gift is entirely divorced from the donor’s death and otherwise unlike a testamentary disposition, the capacity necessary to val- idly gift property may be less than that required to make a testamentary disposition. This point was made by McKenzie J. in Dacyshyn v. Dacyshyn Estate, [1996] B.C.J. No. 626 (S.C.) where, in dealing with an inter vivos transfer, he wrote at para. 25 that: ...Many of the leading cases on...a lack of capacity involve testamentary instruments. The standards for inter Parmar Estate v. Tiwari Adair J. 161

vivos transactions on questions of...capacity are, if anything, less stringent than those for testamentary instruments... More precisely, the content of that which must be understood by the donor is, or may be, less extensive and less complicated than that to which a testator must address his or her mind, and in that sense, the required capacity is less in the case of inter vivos gifts. 147 Thus, if a gift only takes effect on death of the donor (the example given by Barrow J. is when there is a transfer into joint names, with a right of survivorship), then it may well be appropriate to look to the capacity required to make a testamentary disposition, since the gift closely resembles a testamentary disposition. 148 Testamentary capacity is discussed in Elder Estate v. Bradshaw, 2015 BCSC 1266 (B.C. S.C.) (cited by Mr. Huntsman), where Meiklem J. wrote (at paras. 29-30): [29] The seminal case defining the meaning of testamentary capacity is Banks v. Goodfellow, [1861-73] All E.R. Rep 47 at 56: It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delu- sion shall influence his will on disposing of his property, and bring about a disposal of it which would not have been made otherwise. [30] In assessing the evidence bearing on the issue of testamentary capacity, I observe and adopt the comments of Harvey J. in Danchuk v. Calderwood, [1997] B.C.W.L.D. 087 at para. 113: [113] Whether the testator’s mind was sound is a practical question. It does not depend on scientific or medical definition. Medical evidence is not required nor necessarily conclusive when given. The question may be answered as well by laymen of good sense. 149 Mr. Huntsman argues that, applying the test for testamentary capacity as described by Meiklem J. to the evidence, particularly in the light of Dr. Myronuk’s opinion evidence, Dr. Parmar lacked the capacity as of January 6 to make a valid gift. 162 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

150 I do not agree with Mr. Huntsman that the standard for testamentary capacity is the appropriate standard here. There is no evidence that the transfer of Comox from Dr. Parmar to Ms. Tiwari was only to take effect on Dr. Parmar’s death. 151 The “gift” of Comox, certainly as described by Ms. Tiwari, had two aspects: the actual transfer of the property from Dr. Parmar to Ms. Tiwari and the payment of taxes associated with the transfer. It was not the type of transaction that was strange to Dr. Parmar or one where she had no previous experience. Rather, a few months before, she had completed the disposition (although in the context of a sale) of her two other B.C. properties (Sunset and Fillinger), and dealt with payment of the associated taxes. In that context, the gift of Comox to Ms. Tiwari was neither complex nor unusual. 152 There is no dispute that Dr. Parmar had already fully dealt with her assets through her 2009 Will and through the other arrangements she had made for her assets to be transferred to specific beneficiaries on her death. Comox was not her only asset, and certainly not her most valuable asset. As a result, the content of what Dr. Parmar needed to understand was both less extensive and less complicated than that to which she would have had to address her mind if she had been disposing of all or most of her estate. In that light, in my opinion, the capacity required was that required to make an inter vivos gift. 153 However, in the result, I do not think it matters because, in my opinion, the plaintiff has failed to show that, as of January 6, 2011, Dr. Parmar lacked the capacity to make a valid gift, whatever standard is applied. 154 The event on December 29, 2010, as described by Mr. Parmar, was frightening and unusual. However, it is unclear when in the day it happened. One of the things that Dr. Parmar did on December 29, 2010 was sign the Medical Consent, and the Consent was co-signed and certified by a physician at the University of Chicago Medical Centre. 155 Mr. Parmar expressed the opinion that Dr. Parmar treated the signing of Medical and Surgical Consents as routine, implying that she looked on them as unimportant and would sign anything put in front of her, without paying any attention to what she was doing. I doubt very much that this was true. As a physician, Dr. Parmar would be well acquainted with the importance of giving and obtaining a consent to a medical procedure such as surgery. I do not accept Mr. Parmar’s conclusory evidence con- Parmar Estate v. Tiwari Adair J. 163

cerning his mother, as I think such behaviour would be out of character for her. 156 However, even if Mr. Parmar’s opinion was legitimate, it does not follow that the physician co-signing the Medical or Surgical Consent paid no attention to what he or she was doing or treated the step of obtaining the patient’s consent as unimportant. If a physician were to certify that the person who signed the Medical Consent “was capable of understanding the nature of the patient’s physical condition” and the risks involved in accepting or refusing treatment, when that was not true, it would be a very serious matter, for both the patient and the hospital. 157 I find that the Medical Consent and the Surgical Consents in evidence, signed by Dr. Parmar and co-signed by a physician, provide reliable evidence that Dr. Parmar had the capacity to understand her physical condition, the nature of the proposed medical procedure and the risks involved. I find further that, given her capacity to understand those matters, she had the capacity necessary to make a valid gift. 158 Moreover, I am unable to reconcile Dr. Myronuk’s opinion that Dr. Parmar was suffering from delirium in the final days of her life and most probably would have had cognitive impairment for more than two weeks prior to her death, with the Medical Consent signed on December 29, and records from her hospitalizations on December 30 and 31, 2010 and Jan- uary 3 and 4, 2011 contained in the Clinical Records. In my opinion, the Medical and Surgical Consents and the other medical records from Dr. Parmar’s hospitalizations provide strong support for the conclusion that as of January 4, 2011, Dr. Parmar’s mind was sufficiently sound that she had the capacity to make a valid gift of Comox. 159 What then of January 5 and 6? 160 In Dr. Myronuk’s opinion, by the time Dr. Parmar signed the Home Health Services Agreement, and based in particular on the perseverative error, Dr. Parmar was demonstrating “clear evidence of significantly impaired executive cognitive function.” The implication of Dr. Myronuk’s evidence is that, as of January 5, Dr. Parmar’s cognitive functioning was so severely impaired that she would have lacked the necessary capacity on January 6 to make a valid gift of Comox. 161 In my opinion, the evidence does not support that conclusion, and Dr. O’Breasail did not agree with it. 162 The perseverative error on the Home Health Services Agreement is certainly of concern. However, her signing that document was not Dr. 164 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

Parmar’s only activity on January 5. That afternoon, Dr. P.J. Parmar took her out to Dr. Sharif’s office and she had some blood work done. There is no admissible evidence to support the conclusion that, in the afternoon on January 5, anyone observed that Dr. Parmar was suffering from significantly impaired cognitive function or that she was unable to understand what she was doing or what was going on around her. 163 I have found that, in fact, in the morning on January 6, 2011, Dr. Parmar, Dr. P.J. Parmar and Ms. Tiwari made the trip to the notary and Dr. Parmar signed the Form A Transfer. That was not Dr. Parmar’s only activity on January 6. She was seen and assessed by the physical therapist around Noon. Although the therapist notes “diminished cognit” in relation to Dr. Parmar’s speech, in my opinion, the remainder of his notes do not support the conclusion that on January 6, Dr. Parmar’s cognitive functioning was so severely impaired that she lacked the capacity to make a valid gift of Comox. 164 Accordingly, I find that the plaintiff has failed to show, on a balance of probabilities, that on January 6, 2011, Dr. Parmar lacked the capacity to make a valid gift of Comox.

(e) Did Dr. Parmar in fact make a valid gift of Comox to Ms. Tiwari? 165 As I noted above, the gift of Comox had two aspects: the actual transfer of the property from Dr. Parmar to Ms. Tiwari and the payment of taxes associated with the transfer. Ms. Tiwari’s evidence was firm and consistent that she would never have accepted a transfer of Comox to her from Dr. Parmar unless Dr. Parmar had also agreed to make a gift of the taxes. 166 The dual aspect of the gift is reflected in the facts pleaded by Ms. Tiwari in the Response to Civil Claim. She pleads: 48. ... [Dr. Parmar] agreed to pay the costs of the transfer and agreed she would provide the Defendant with a cheque for those costs once they were known. ... 51. On January 6, 2011, [Dr. Parmar’s] son, [Dr. P.J. Parmar], took [Dr. Parmar] to a notary public’s office and the transfer form was executed by [Dr. Parmar] there. 52. At that time, [Dr. Parmar] also wrote out a blank cheque to be used for the sales tax and holdback, and left it with her son. ... Parmar Estate v. Tiwari Adair J. 165

54. On January 19, 2011, the Defendant registered the transfer... and paid the property transfer tax. 55. The Defendant then ... contacted [Dr. Parmar’s] sons ... and asked for the cheque in their mother’s purse for the sales tax and tax holdback. 56. The cheque was sent by courier to the Defendant. ... 60. When [Dr. Parmar’s] cheque was received, it was deposited to the Defendant’s account. 61. On February 11, 2011, [Dr. Parmar’s] bank refused to honor the cheque due to the death ... . 62. On February 19, 2011, [Dr. P.J. Parmar] ... agreed to forward his aunt the funds necessary to cover the expense of the sales tax and holdback and eventually did so. 63. In the result, the gift was perfected in accordance with the wishes of [Dr. Parmar] .... 64. The transfer was a gift and intended to be at no cost to the Defendant. 167 Since the transfer of Comox was gratuitous, Ms. Tiwari bears the burden to show that, at the time of the transfer, Dr. Parmar intended to make a gift: see Pecore v. Pecore, 2007 SCC 17 (S.C.C.), at para. 24. Equity presumes bargains, not gifts. Ms. Tiwari also bears the burden to show that a valid inter vivos gift was made. 168 In order to make a valid gift, the donor must have done everything that (according to the nature of the property) was necessary to be done to transfer the property and make the transfer binding on the donor. The court will not act to complete an incomplete gift, and a mere promise to make a gift is unenforceable. If authority is necessary for these basic principles, it can be found in Kooner v. Kooner (1979), 100 D.L.R. (3d) 76 (B.C. S.C.), at pp. 79 -80. The Response to Civil Claim has clearly been pleaded with knowledge of these principles. 169 I find that, after Comox did not sell, and as she recognized her cancer was terminal, Dr. Parmar probably did discuss with Ms. Tiwari transferring Comox to her as a gift. On the evidence, Comox had been very diffi- cult to sell. In addition, Dr. Parmar’s general approach to estate planning was to dispose of her assets outside of her estate, leaving virtually nothing to go through probate. There were reasons why Dr. Parmar would have been disposed to make a gift to her younger sister, who had provided care and companionship to Dr. Parmar during her illness and at the 166 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

end of her life. Against that background, making a gift of Comox to Ms. Tiwari would be a reasonable thing to do. Making a gift of Comox (including the taxes) is what Ms. Tiwari said she and Dr. Parmar discussed, including on December 30. Dr. P.J. Parmar’s evidence to the effect that, whenever his mother went into hospital for a procedure, she wanted to settle things in advance, gives weight to Ms. Tiwari’s evidence concerning the discussions about Comox on December 30. The problem was how to make the gift? This can be seen in Ms. Tiwari’s evidence about her communications with Mr. Brown, Mr. Hough and Mr. Sihota. The solution adopted was that Dr. Parmar would sign the Form A Transfer and provide Ms. Tiwari with cheques to cover the expenses. I find, therefore, that Dr. Parmar intended to make a gift of Comox to Ms. Tiwari. 170 However, in my opinion, the gift was never perfected during Dr. Parmar’s lifetime. An inter vivos gift cannot be perfected after the do- nor’s death. 171 Pecore and other cases (such as Chung v. La, 2011 BCSC 1547 (B.C. S.C.) (see paras. 39 and following); and Fuller v. Fuller Estate, 2010 BCCA 421 (B.C. C.A.) (see paras. 41 and following and paras. 51-53)) make it clear that the intention to make a gift is determined in relation to specific conduct by the transferor that legally could constitute delivery of a complete gift. In Fuller v. Fuller Estate, for example, the court was considering the effect of transferring title to property into joint tenancy. That is what I am being asked to do in relation to the RBC Account. If, on all of the evidence, a gift was in fact intended at the time of the transfer, nothing more needed to be done to perfect the gift. 172 Here, however, the mere act of signing the Form A Transfer is not effective to transfer or deliver anything. The circumstances are therefore quite different than those before the court in Chung v. La or Fuller v. Fuller Estate. At best, merely signing the Form A Transfer does no more than express an intention to make a gift. Therefore, unless there is proof of delivery in this case, merely proving that Dr. Parmar intended to make a gift is insufficient. Here, and in contrast to cases such as Pecore, Ms. Tiwari must prove both that Dr. Parmar intended to make an inter vivos gift, and that she did in fact do that before she died. The law is clear that even if someone intends to make a gift but does not perfect the gift before death, there is nothing. 173 There is an unfortunate gap in the evidence about what happened with the signed Form A Transfer, after Dr. Parmar, Dr. P.J. Parmar and Ms. Tiwari left the bank the morning of January 6, 2011. Neither Dr. P.J. Parmar Estate v. Tiwari Adair J. 167

Parmar nor Ms. Tiwari was asked. If Dr. Parmar retained possession of the signed Form A Transfer, and never delivered it to Ms. Tiwari before she died, that would be fatal to the existence of a valid gift. In the absence of evidence, I cannot draw any conclusions about where the Form A Transfer was when Dr. Parmar died on January 9, 2011. However, since Ms. Tiwari has the burden of proof on this issue, it would be open to me to conclude that, by leaving the gap in the evidence, she has failed to meet her burden. There is no dispute on the evidence that Dr. Parmar never took any steps to register the transfer before she died, and perfect that aspect of the gift. Rather, it was Ms. Tiwari who submitted the Form A Transfer for registration on January 19, 2011. 174 I turn then to consider the second aspect of the gift: payment of the taxes. 175 There is no dispute, and Ms. Tiwari admits, that Dr. Parmar did not deliver any cheques to her before Dr. Parmar died. Rather, when Dr. Parmar died, the cheques that she signed were in her purse, and they remained there until Ms. Tiwari sent the January 28, 2011 e-mail to her nephews, asking that she be sent one of them. The evidence is clear that, before she died, Dr. Parmar had made no irrevocable delivery to Ms. Tiwari of the second aspect of the gift: money to pay the taxes associated with the transfer of Comox. After Dr. Parmar died, Dr. P.J. Parmar had no legal authority to “complete” anything - in particular, delivery of an incomplete inter vivos gift - on her behalf. His later payment, personally, of the expenses is insufficient to perfect his mother’s gift. 176 I conclude, therefore, that Ms. Tiwari has failed to prove that Dr. Parmar made a valid inter vivos gift, and she has failed to rebut the presumption of a resulting trust. Accordingly, Ms. Tiwari holds title to Comox on a resulting trust for Dr. Parmar’s estate.

(f) The claims based on undue influence and breach of fiduciary duty 177 Since I have concluded that Dr. Parmar’s gift to Ms. Tiwari was never perfected, and that, as a result, Ms. Tiwari holds title to Comox on a resulting trust, it is unnecessary for me to deal with the claims based on undue influence and breach of fiduciary duty. However, I will make some brief comments. 178 Had it been necessary to do so, I would have found against the plaintiff in respect of his claim of undue influence. 168 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

179 In Turner v. Turner, 2010 BCSC 49 (B.C. S.C.), Verhoeven J. provides a helpful summary of the basic principles, at paras. 58-61: [58] There are two classes of case where the court will set aside a voluntary gift on the ground of undue influence: first, where the gift was the result of influence expressly used by the donee for the purpose of obtaining the gift; second, where the relationship between the donor and the donee at the time the gift was made was such as to raise a presumption that the donee had a dominating influence over the donor. [59] In the first class of case, if undue influence is proven, then the gift will be set aside. In the second class of case, the court sets aside the gift unless the donee is able to prove that the gift was made by the donor exercising a free and independent will: [citations omitted]. [60] The second class of case requires the court to determine whether the potential for a dominating influence existed in the relationship between donor and donee: [citations omitted]. [61] Where the presumption of undue influence arises, the donee must show that the donor made the gift as a result of his or her own full, free, and informed thought. This may entail establishing that no actual influence was deployed and that the donor had independent advice. The magnitude of the benefit may be material: [citations omitted]. 180 See also Stewart v. McLean, 2010 BCSC 64 (B.C. S.C.), at paras. 92 and 97. 181 Certainly, Dr. Parmar and Ms. Tiwari were very close in the last years of Dr. Parmar’s life. In the months before Dr. Parmar died, they shared the same bedroom. Ms. Tiwari was providing daily care and companionship for her sister. In the last weeks, Ms. Tiwari was administering morphine to Dr. Parmar, to control her pain. On the other hand, Mr. Parmar was living at Downers Grove with his mother and Ms. Tiwari, and there is little in his evidence about what he actually observed to suggest that Ms. Tiwari exercised a dominating will over Dr. Parmar in relation to anything. Clearly, and after the fact, Mr. Parmar has deep suspicions, but suspicions are not evidence. Dr. P.J. Parmar’s evidence does not support the allegation of undue influence, nor do the observations recorded in the Clinical Records. 182 Moreover, Dr. Parmar was Ms. Tiwari’s older sister. Ms. Tiwari respected and looked up to her, in addition to loving and caring for her. In the context of their relationship as sisters, that Ms. Tiwari would act in Parmar Estate v. Tiwari Adair J. 169

a way so as to dominate her sister’s will in relation to Comox, a property Ms. Tiwari said she never wanted, was unlikely, in my opinion. 183 The plaintiff also alleges that, as a result of being given power of attorney by Dr. Parmar in October 2009, Ms. Tiwari became Dr. Parmar’s fiduciary. This then is asserted to provide the basis for a claim that, in relation to the Form A Transfer of Comox, Ms. Tiwari breached her fiduciary duty to Dr. Parmar. 184 Ms. Tiwari was not asked whether she had either power of attorney in her possession. This was an important point in Stewart v. McLean (see para. 84). 185 However, in my opinion, the critical point is that, in relation to Comox, Ms. Tiwari never used the power given to her by Dr. Parmar under the power of attorney documents. It is undisputed that Ms. Tiwari never signed the Form A Transfer acting as Dr. Parmar’s attorney under either power of attorney. 186 Accordingly, had it been necessary for me to do so, I would have found that the plaintiff had failed to make out a claim for relief based on either undue influence or a breach of fiduciary duty.

(g) The RBC Account 187 I turn finally to the RBC Account. 188 Pecore is the leading case on the treatment of joint accounts after the death of the accountholder who provided all or most of the funds in the account. The question is whether the deceased accountholder intended to make a gift to the remaining accountholder of the money remaining in the account, or whether that money is held by the remaining accountholder on a resulting trust. The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer (in this case, the transfer to Ms. Tiwari of the balance remaining in the RBC Account at Dr. Parmar’s death) is challenged, the presumption allocates the legal burden of proof. The onus is on the transferee (here, Ms. Tiwari) to demonstrate that a gift was intended. See Pecore, at paras. 24 and 43. It is the actual intention of the transferor at the time of the transfer that is relevant: Pecore, at paras. 5, 44 and 59. The trial judge must begin the inquiry by determining the proper presumption to apply and then weigh all the evidence relating to the actual intention of the transferor to determine whether the presumption has been rebutted: Pecore, at para. 55. Evidence that is contempora- neous, or nearly so, to the transaction, and evidence subsequent to the 170 ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)

transfer can be considered: Pecore, at paras. 56-59. The types of evidence a trial judge can or should consider in ascertaining intent will depend on the facts of the case: Pecore, at para. 55. 189 Here, the question is whether, when the RBC Account was opened as a joint account in 1998, Dr. Parmar intended to make a gift to Ms. Tiwari of the balance of the account when Dr. Parmar died. 190 There is no dispute that, until Dr. Parmar’s death, she was the sole source of deposits to the RBC Account. According to Ms. Tiwari, the account was set up so that, for example, Ms. Tiwari would have access to funds in order to pay property taxes on Comox and (probably) Fillinger. Ms. Tiwari testified that she occasionally withdrew funds for her own use. However, based on Ms. Tiwari’s evidence, I conclude she did not do that very often. According to Ms. Tiwari, she did on-line banking in the account, transferring money back and forth when Dr. Parmar needed something to be paid. However, and although the evidence is quite thin, I conclude that Dr. Parmar mainly directed how the account would be managed. 191 I do not place much weight on the Bank’s “Client Agreement.” It might reflect the Bank’s views on how accounts are run, but joint ac- countholders, as between themselves, might have quite different views and intentions, especially regarding equitable title to funds. In that respect, I note the comments of Rothstein J. at para. 60 of Pecore. 192 I have also concluded that I cannot place much weight on Ms. Tiwari’s evidence to the effect that, when the RBC Account was opened, a bank representative told both Dr. Parmar and her that when one of them died, the other accountholder would be the owner of the account. I very much doubt that Ms. Tiwari could recall such a conversation from more than 15 years ago. Her evidence is likely simply reconstructed based on more current events. 193 On the other hand, there is strong support in the evidence for the conclusion that Dr. Parmar, an intelligent, well-educated businesswoman, understood very well what having joint ownership, or ownership with a designated beneficiary, meant, and that it meant the asset would transfer to the remaining joint owner or the designated beneficiary on her death. That is how she deliberately organized most of her financial affairs, so that there would be few assets actually passing through her estate when she died. In my opinion, the evidence concerning how Dr. Parmar organized her affairs supports the conclusion that, when the RBC Account was opened in 1998, she intended that, when she died (assuming she died Parmar Estate v. Tiwari Adair J. 171

before Ms. Tiwari), the balance then remaining in the account would pass to Ms. Tiwari, who would be entitled to it as the remaining accountholder. 194 I conclude, therefore, that Ms. Tiwari has met the onus of proof on her to show that, with respect to the balance remaining in the RBC Ac- count, Dr. Parmar intended to make a gift and Ms. Tiwari has rebutted the presumption of a resulting trust.

Summary and disposition 195 In summary, I find that the defendant has failed to prove that Dr. Parmar made a valid and complete inter vivos gift of Comox to her, and, as a result, the defendant holds title to Comox in trust for Dr. Parmar’s estate. Accordingly, I declare that the defendant holds title to Comox in trust for Dr. Parmar’s estate, and I order that, within 45 days of the date of this Judgment, Ms. Tiwari cause legal title of Comox to be transferred to Dr. Parmar’s estate. 196 The plaintiff has failed to make out a basis for relief respecting Comox on any of the other grounds pleaded. 197 With respect to the plaintiff’s claim respecting the RBC Account, I find that the defendant has met her onus to prove that, when the Account was opened, Dr. Parmar intended that Ms. Tiwari become the legal and beneficial owner of the balance remaining in the account on Dr. Parmar’s death. The plaintiff’s claim in respect of the RBC Account is, accordingly, dismissed. 198 If the parties are unable to agree on costs and wish to make submissions concerning them, they may do so in writing, provided such written submissions are served and filed within 60 days of the date of this Judg- ment. I will leave counsel to agree on a suitable schedule for the exchange of written submissions. Submissions are to be no more than 20 pages, double-spaced, and the font size must be no smaller than 12 point (except for quotations). There is no page limit on any affidavit evidence either party may wish to file. Action allowed in part.