Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230614 DOCKET: COA-22-CV-0481

Doherty, Hoy and Favreau JJ.A.

BETWEEN

Hayley Steinhart as Estate Trustee of the Estate of Earl Israel Aplyn Applicant (Appellant)

and

Willa Aplyn Respondent (Respondent)

Counsel: Kenneth Wise, for the appellant Jonathan M. Friedman, for the respondent

Heard and released orally: June 9, 2023

On appeal from the order of Justice M. Suranganie Kumaranayake of the Superior Court of Justice, dated August 19, 2019.

Reasons for Decision

[1] In or about June to September 2014, the respondent’s late father added her name as a joint holder of his two bank accounts.

[2] The respondent testified that her father intended to make a gift of the amounts in the accounts to her to compensate for the fact that, in 2010, he had sold the taxi licence that he had intended to bequeath to her and deposited the funds in those accounts. The application judge found that her father had owned two taxi licences and, prior to 2010, intended that the respondent, and her sister, the appellant, would each receive one of them. In June 2010, he sold the taxi licence which had been earmarked for the respondent. He left the second taxi licence he owned to his other daughter – the appellant – in his will, as had always been intended.

[3] The appellant argues that the application judge erred by failing to apply the presumption of resulting trust and by concluding that the respondent was entitled to the full benefit of the proceeds of the two bank accounts in the absence of corroborating evidence that their late father intended to gift the amounts in the accounts to the respondent. She submits that the matter should be returned to the Superior Court of Justice for a new hearing.

[4] The appellant is not pursuing the argument in her factum that the application judge erred in finding that the parties’ late father was capable at the time that he made the gift, and abandons her motion to adduce fresh evidence.

[5] We are not persuaded that we should interfere with the decision of the application judge.

[6] The appellant did not argue below that there was a presumption of resulting trust in the circumstances. This is not one of those rare cases where it would be appropriate for the court to consider this new issue, especially where, on the appellant’s submission, the record does not permit it to be determined by this court and it would require returning the matter to the Superior Court.

[7] In any event, there was corroborating evidence from Donna Murakami and, to a lesser extent, the parties’ late father’s solicitor that the father intended to gift the amounts in the account to the respondent. The application judge’s conclusion that the respondent was entitled to the funds in the bank accounts was amply supported by the record.

[8] Accordingly, the appeal is dismissed. The respondent is entitled to her costs of the appeal, fixed in the amount of $7000, inclusive of HST and disbursements.

“Doherty J.A.”

“Alexandra Hoy J.A.”

“L. Favreau J.A.”