Court of Appeal for Ontario
Goudge, Simmons and Rouleau JJ.A.
IN THE MATTER OF the Estate of George Garfield Hipel, late of the City of Cambridge, in the Regional Municipality of Waterloo, deceased
AND IN THE MATTER OF the Estate of Norman Otto Hipel, late of the City of Cambridge in the Regional Municipality of Waterloo, deceased
AND IN THE MATTER OF the Estate of Olive Victoria Hipel, late of the City of Kitchener in the Regional Municipality of Waterloo, deceased
AND IN THE MATTER OF the Estate of Mabel Helen Hipel, late of the City of Cambridge in the Regional Municipality of Waterloo, deceased
BETWEEN
Norma Irene Jacques
Plaintiff (Appellant)
and
The Canada Trust Company, Executor and Trustee of the Estate of Norman Otto Hipel, deceased, and the Estate of George Hipel, deceased
Defendants (Respondent)
Counsel:
Ian Hull and David M. Smith, for the appellant
Ross Earnshaw, for the respondent
Heard: May 30, 2012
On appeal from the judgment of Justice Parayeski of the Superior Court of Justice, dated September 7, 2011.
APPEAL BOOK ENDORSEMENT
1The appellant argues that the respondent, by not distributing on the death of the life tenant, engaged in fraudulent concealment and that the trial judge erred in not so finding.
2We do not agree. Each case must turn on its own facts. The appellant quite properly acknowledges that the trial judge correctly found that unconscionable conduct by the respondent is essential if she is to succeed. The trial judge went on to find that on these facts the appellant had not established unconscionable conduct. There was ample evidence to support this finding, particularly that in 1978 the appellant knew of her entitlement and with reasonable efforts could have discovered what assets were included in the estate. Moreover there was no evidence of how or why the non distribution occurred or that the respondent’s conduct went beyond mere negligence.
3There is no basis for the court to interfere with the finding that unconscionable conduct by the respondent had not been established and the appeal must be dismissed.
4Costs to the respondent fixed at $8000 all inclusive.