DATE: 20031202

DOCKET: C38071

COURT OF APPEAL FOR ONTARIO

RE:

JAMES EDWARD BRANDON, IN TRUST, AS TRUSTEE (Plaintiffs) – and – GORDON PETER BRANDON and JAMES EDWARD BRANDON (Defendants)

A N D B E T W E E N:

GORDON PETER BRANDON in his personal capacity (Plaintiff by Counterclaim) – and – JAMES EDWARD BRANDON in his personal capacity and JAMES EDWARD BRANDON AND GORDON PETER BRANDON in their capacities as Executors of the Estate of Clara Jessie Brandon (Defendants by Counterclaim)

B E T W E E N:

GORDON PETER BRANDON, JR., in his personal capacity (Plaintiff (Respondent)) – and – JAMES EDWARD BRANDON, SR. AND GORDON PETER BRANDON, JR. in their Capacities as Executors of the Estate of Clara Jessie Brandon and JAMES EDWARD BRANDON SR. and JAMES EDWARD BRANDON, JR. and PORTIA BRANDON (Defendants (James Edward Brandon Sr., Appellant))

BEFORE:

CATZMAN, ABELLA AND SIMMONS JJ.A.

COUNSEL:

Laurence Pattillo and Andrew D. Gray

for the appellant

Arnold B. Schwisberg

for the respondent

HEARD &

ENDORSED:

November 28, 2003

On appeal from the judgment of Justice Peter Howden of the Superior Court of Justice dated July 18, 2001, December 6, 2001 and March 12, 2002.

A P P E A L B O O K E N D O R S E M E N T

Catzman and Simmons JJ.A.

[1] Mr. Pattillo submits that the appellant, James Brandon, who is alleged to have been responsible for the undue influence upon his mother, was not the beneficiary of the impugned instruments signed by his mother and that the presumption of undue influence therefore does not apply in the present case. That submission ignores the reality that James effectively acquired control of the island for the duration of the trust and that he and his side of the family were the beneficiaries of the influence exerted upon Clara in the procurement of those instruments in favour of James’ son, Jamie.

[2] In any event, quite apart from any presumption, we read paragraphs 115 and 116 of Howden J.’s reasons for judgment as a finding that James had “physical and moral control and persuasion over his mother” and that he in fact exercised that power in a manner that amounted to undue influence at and prior to the time she executed the impugned instruments. That finding is supported by evidence presented at a lengthy trial and canvassed in thorough reasons by the trial judge. Moreover, it is not undermined by the opinion of a solicitor who was not privy to the evidence that was adduced at trial of all of the family interactions that preceded the execution of the instruments. We are not persuaded that the trial judge made any error that would warrant appellate intervention with that finding.

[3] Accordingly, we would dismiss the appeal.

Abella J.A.: (Dissenting)

[4] In my view, even if these circumstances can be said to give rise to a presumption of influence, it has been rebutted not only by the assertive and unshaken evidence of Clara Brandon but by the cogent evidence of her solicitor, Mr. Hacker. There was, with respect, no basis for critiquing the legal advice given to Clara Brandon and it was an error to find that his duty included making inquiries of others to see if there was a sound factual basis for her views. This raises the threshold too high. Mr. Hacker, who had been introduced to her by Gordon Brandon several months earlier, spent an appropriate amount of time with Clara Brandon and satisfied himself that she understood the terms of the documents. He also concluded that her reasons for the disposition to her grandson were genuine and independently made, particularly her concern that the island remain in the Brandon name, that Gordon could lose his share of the island to creditors, and that Gordon might dispose of his share to his friend, a Midland business man. Mr. Hacker was not obliged to do any more than he did.

[5] In addition, her friend Ms. Daub testified that Clara Brandon was mentally alert and able to make her own decisions. The pressure to divide the island came from Gordon. James was satisfied with the status quo which would have resulted in each brother getting 50% of their mother’s share of the island when she died.

[6] Clara Brandon was entitled to divide the property as she saw fit. In the absence of any evidence rebutting her evidence, or any adverse finding of credibility, it was, with respect, a reversible error for the trial judge to disregard her evidence or that of Mr. Hacker. Just because James was her more attentive son and she had a closer relationship with him, does not, in these circumstances, disentitle her to favour his family over her other son’s. I am satisfied any presumption has been thoroughly rebutted.

[7] I would allow the appeal, set aside the judgment, and dismiss Gordon Brandon’s action.