Court of Appeal for Ontario
Between:
Verna Jean Hall
Plaintiff (Appellant)
and
Norman Stewart Watson and St. Joseph’s Villa Foundation, Dundas
Defendants (Respondents)
Before: MacPherson, Juriansz and Epstein JJ.A.
Counsel:
W. Graydon Sheppard, for the plaintiff/appellant
Michael W. Kerr and Andrea Farkouh, for St. Joseph’s Villa Foundation, Dundas
Liza C. Sheard and Andrea M. Hill, for Norman Stewart Watson
Heard and released orally: November 25, 2010
On appeal from the judgment of Justice D.S. Crane of the Superior Court of Justice dated November 17, 2009.
ENDORSEMENT
1The appellant, Verna Hall, appeals from the trial judge’s decision dismissing her claim against her former solicitor, the respondent, Norman Watson, for breach of his duty to her and refusing to order that the transfer of her house to the respondent, St. Joseph’s Villa Foundation, be set aside. The case involves a transaction whereby Ms. Hall transferred her home to the Foundation and retained a life estate in it.
2The seven day trial focused almost exclusively on Ms. Hall’s claim of non est factum. She testified that the deed transferring title to the Foundation, a document drawn by Mr. Watson and executed in his presence, was not correctly explained to her. Specifically, Mr. Watson did not advise her of the nature of the transfer and therefore she did not understand that she was transferring title to the Foundation.
3The key people involved in the transaction testified – Ms. Hall, Mr. Watson, Mr. Hunter who was Ms. Hall’s accountant and Ms. Maureen Ellis, the Foundation’s representative. Given the fact that Ms. Hall’s evidence conflicted with the accounts of these other witnesses concerning the circumstances surrounding the transfer, the trial judge was required to make findings of fact based on his assessment of their credibility. In this respect, he found Mr. Hunter, Mr. Watson and Ms. Ellis to be highly credible. However, he had difficulty accepting Ms. Hall’s memory and her firm adherence to a version of the facts that went against the weight of all of the other evidence.
4Based on the evidence that he did accept, the trial judge found that Ms. Hall fully understood the nature of her gift to the Foundation and its legal consequences. He therefore rejected Ms. Hall’s plea of non est factum.
5As a peripheral issue at trial, Ms. Hall also advanced a claim for damages on the basis that Mr. Watson breached his fiduciary duty to her. The underpinning of this claim is that according to Ms. Hall, unbeknownst to her, the Foundation paid Mr. Watson’s legal fees associated with the transaction. She argued before the trial judge that this put Mr. Watson in a position of a conflict of interest.
6Before this court, counsel for Ms. Hall argues a completely different case. The thrust of his argument is that Mr. Watson was negligent in carrying out his duties to Ms. Hall in relation to the transaction by not ensuring that it dealt with issues such as who was to be responsible for municipal taxes and maintenance during the period when she lived in the house further to her life interest.
7Ms. Hall complains that she now finds herself responsible for expenses she had no intention of assuming and associated with a house she no longer owns.
8First, we would not give effect to the appeal in relation to the issues raised at trial and in Ms. Hall’s factum. In rejecting Ms. Hall’s claim of non est factum, the trial judge made findings of fact supported by the evidence and applied them to the correct test associated with such a claim.
9The argument that Mr. Watson was in a conflict of interest is fully answered by Mr. Hunter’s evidence that was accepted by the trial judge to the effect that, at Ms. Hall’s request, her legal fees in connection with the transaction were paid by the Foundation.
10Finally, the issue about the on-going tax and maintenance costs associated with the house is not properly before this court. It was not pleaded. It was not an issue that was developed at trial through evidence called or in argument. In fact, when the matter came up in the course of the trial, counsel for Ms. Hall specifically advised the court that his client was not advancing a claim in negligence against Mr. Watson for his failure to ensure that these items were dealt with in the transfer documentation.
11Ms. Hall also challenges the costs awarded to Mr. Watson on a substantial indemnity scale in the amount of $82,318.33. With respect to costs, the primary error Ms. Hall alleges is that the trial judge awarded substantial indemnity costs in favour of Mr. Watson based on improper considerations.
12In our view, there is no reason to interfere with the costs award. As counsel for Ms. Hall acknowledges, a trial judge’s costs award attracts great deference. Given the allegations Ms. Hall made against Mr. Watson, it was open to the trial judge to award costs on a substantial indemnity scale.
13The appeal and the appeal as to costs are both, therefore, dismissed.
14The costs of this appeal shall be fixed in the amount of $19,000 inclusive of disbursements and applicable taxes, payable by Ms. Hall to each of Mr. Watson and the Foundation.
“J.C. MacPherson J.A.”
“R.G. Juriansz J.A.”
“Gloria Epstein J.A.”