RBC Life Insurance company v. Rate, 2010 ONCA 855

CITATION: RBC Life Insurance company v. Rate, 2010 ONCA 855

DATE: 20101215

DOCKET: C51599

COURT OF APPEAL FOR ONTARIO

Moldaver, Feldman and Simmons JJ.A.

BETWEEN:

RBC Life Insurance Company

Applicant

and

Piero Monaco and Carol Rate (as Guardian of Justice Rate)

Respondents (Piero Monaco, Appellant) (Carol Rate, Respondent)

Umberto Sapone, for the appellant Piero Monaco

Paul E. Trudelle, for the respondent Carol Rate

Heard and endorsed: December 10, 2010

On appeal from the judgment of Justice T. A. Bielby of the Superior Court of Justice, dated January 7, 2010.

APPEAL BOOK ENDORSEMENT

[1] This appeal is largely fact-driven. The trial judge reviewed the evidence at large and found, in respect of the lay witnesses, that their evidence was “not very impressive” and that on balance, he could not conclude from it “whether or not the signature in issue” was a forgery. In the course of assessing the lay witnesses, the trial judge considered the frailties in the evidence of Ms. Rate and Mr. Byrne, both of whom swore that the deceased signed the change of beneficiary forms in their presence on June 15, 2005.

[2] In the context of Ms. Rate’s evidence, the trial judge noted in particular that he had “some difficulty” with her testimony “especially with respect to the chronology of events after June 1, 2007”. Importantly, however, he noted that her “evidence surrounding the creation of the change of beneficiary forms was not shaken”.

[3] Ms. Rate’s evidence in that regard was critical – and to resolve whether he could act on it, as well as Mr. Byrne’s evidence confirming it, he looked to the expert handwriting evidence. In doing so, the trial judge carefully reviewed the conflicting evidence given by Dr. Singla, on behalf of Piero Monaco and Diane Kruger, on behalf of Ms. Rate. In the end, he preferred “the opinion of Ms. Kruger that the signature of the deceased Paulo Monaco on the change of beneficiary form dated June 15, 2005, was probably written by Paulo Monaco”.

[4] That finding was open to the trial judge. In coming to it, he made no errors in fact or law. In the end, having made that finding, in the context of the whole of the evidence, he stated:

Given my acceptance of the expert evidence of Ms. Diane Kruger, and the fact that there is no clear and cogent evidence as to the fraud, I find that Piero Monaco has not, on a balance of probabilities, proven fraud in this case.

[5] That conclusion was open to the trial judge and it puts to rest the appellant’s real complaint, namely, that the verdict is unreasonable.

[6] With respect to the other grounds of appeal, we see no merit in the submission that the trial judge erred in failing to draw an adverse inference against the witness Byrne or failing to comply with his discovery undertakings. The appellant took no steps to force Mr. Byrne to comply. Moreover, and in any event, the trial judge did not place much, if any, weight on his evidence, describing it as “not very impressive”.

[7] Likewise, the trial judge did not err in drawing an adverse inference against Ms. Rate for her failure to produce the original change of beneficiary forms. Quite simply, on her evidence she did not have the forms to produce for the reasons which she explained, all of which went to the central issue, namely, whether the deceased’s signature was or was not a forgery.

[8] For these reasons, despite Mr. Sapone’s able argument, the appeal must be dismissed.

[9] Costs to the respondent fixed at $12,500 inclusive of disbursements and applicable taxes.