DATE: 2006-09-21

DOCKET: C42808

COURT OF APPEAL FOR ONTARIO

RE:

SUSAN MARJORIE PEACH (Plaintiff/Respondent) – and – JOSEPH MITCHELL (Defendant/Appellant)

BEFORE:

McMURTRY C.J.O., BLAIR J.A. and CUNNINGHAM A.C.J. S.C.J. (Ad hoc)

COUNSEL:

Brian P. Pilley

for the appellant

Jack Copelovici

for the respondent

HEARD & RELEASED ORALLY:

September 18, 2006

On appeal from the judgment of Justice Mary A. Sanderson of the Superior Court of Justice dated November 19, 2004.

E N D O R S E M E N T

[1] Mr. Mitchell seeks to set aside the judgments of Sanderson J. upholding the validity of his brother Frank’s will, awarding damages in the amount of $10,000 to the respondent, Ms. Peach, and ordering the return of various estate property to her. The will left everything to Ms. Peach, who lived for several years in a common law relationship with the testator.

[2] The appellant raises four basic issues. First, he submits that the respondent failed to meet the onus of proving due execution of the will. Secondly, he contends that the evidence of Corporal Neat that the testator told him on the night in question that he had just executed his will was inadmissible. Thirdly, he contests the award of damages in the amount of $10,000, and finally, he seeks to appeal the refusal of the trial judge to award him costs of the proceedings out of the estate.

[3] On the first point, although the witnesses to the will acknowledged their respective signatures on the document, their memories of what transpired at the time of execution of the will were admittedly frail. The trial judge acknowledged this. One witness could not recall ever having met the testator. The appellant argues that this precludes the operation of the maxim that, if a will purports to be properly executed and attested and there is no doubt it is the testator’s will, the court will assume the will was properly executed and attested although the evidence of the attesting witnesses as to execution may be unsatisfactory: see R. v. Laxer, 1963 153 (ON CA), [1963], 1 O.R. 343 (C.A.). We do not agree. There was ample other evidence on the record to support the trial judge’s finding that the will was properly executed, and we would not interfere with that finding.

[4] Nor do we accept that the evidence of Corporal Neat was inadmissible hearsay. Mr. Pilley does not contest its “reliability” but submits that it was not “necessary” because of the availability of the evidence of the other witnesses respecting execution. We do not think the sufficiency of the evidence, when compared with other evidence tendered, is what is meant by the criteria of “necessity”. Rather, the criterion is whether the evidence in question could be obtained in other ways: see R. v. Smith (1992), 1992 79 (SCC), 2 S.C.R. 915 paragraphs 35-36.

[5] Here, the testator is dead. The criterion of necessity has been met in our view. In any event, even if the evidence were not admitted, there was sufficient other evidence to support the trial judge’s finding that the will had been properly executed.

[6] We see no basis for interfering with the trial judge’s award of damages. Ms. Peach claimed general, aggravated and punitive damages based on trespass, conversion and harassment. While an award of $10,000 may have been high in the circumstances, we can find no basis for interfering with it.

[7] Finally, since the damage award was clearly based, at least in part, on the trial judge’s negative view of the appellant’s conduct towards Ms. Peach, the trial judge’s refusal to award Mr. Mitchell costs followed from that approach. There is no basis for interfering.

[8] Accordingly leave to appeal is granted with respect to costs but the appeal as to costs is dismissed, as is the appeal as a whole.

[9] The respondent is entitled to her costs fixed at $7,000 all inclusive.

“R.R. McMurtry C.J.O.”

“R.A. Blair J.A.”

“J.D. Cunningham A.C.J. S.C.J. (Ad hoc)”