COURT OF APPEAL FOR ONTARIO

CITATION: Orfus Estate v. The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225

DATE: 20130410

DOCKET: C54532

Laskin, Sharpe and Epstein JJ.A.

BETWEEN

Myer Botnick as an Executor named in the Last Will and Testament of Bessie Orfus, and Elaine Orfus and Rachel Wardinger, personally and as Executors named in the Last Will and Testament of Bessie Orfus

Applicants (Respondents/ Appellants by way of cross-appeal)

and

The Samuel and Bessie Orfus Family Foundation, Carrie Heather Orfus- Gelkopf, Michael Abraham Orfus, Shayna Hyla Orfus, Sharon Gerstein, The Children’s Lawyer, Mitchell Gerstein and Yisraella Shira Gelkopf

Respondents (Appellant/ Respondent by way of cross-appeal)

Richard B. Swan and Emrys Davis, for the appellant/respondent by way of cross-appeal

Clare Burns and Mandy L. Seidenberg, for the respondents/appellants by way of cross-appeal

Heard: June 7 and June 15, 2012

On appeal from the judgment, dated September 30, 2011, with reasons reported at 2011 ONSC 3043, and on cross-appeal from the costs endorsement, dated November 14, 2011, of Justice Michael A. Penny of the Superior Court of Justice.

Laskin J.A.:

[1] The main issue on this appeal is whether the motion judge erred by granting summary judgment dismissing Sharon Gerstein’s challenge to the validity of two wills and a codicil made by her mother, Bessie Orfus. Sharon contends that her challenge should have been determined after a trial.

A. overview

[2] Bessie Orfus died in 2009, at the age of 98. She left an estate of nearly $20 million, largely derived from the successful real estate business of her husband, Samuel Orfus, who had predeceased her. Samuel and Bessie Orfus had three children: a son, Howard, who died in 1997, and two daughters, Sharon Gerstein, the appellant, and Elaine Orfus, one of the respondents and estate trustees.

[3] Elaine lived with her mother. According to everyone but Sharon, Elaine was, in the motion judge’s words, “a supportive, caring daughter”. Sharon lived next door but was estranged from both her mother and sister. She communicated with them rarely, if at all.

[4] In May 2004, Bessie Orfus made two wills. She left Sharon shares in three private Orfus companies but removed her as an executor and treated her less generously than Elaine.

[5] In November 2004, Sharon began oppression proceedings in respect of the Orfus companies. She sued, among others, both her sister and her mother. On November 17, 2004, all parties consented to or said they did not oppose the winding up of the Orfus companies. As a result of the wind up, Sharon was to receive $9 million. Less than a month later, on December 13, 2004, Bessie Orfus made a codicil to her two wills in which she cut Sharon out of her estate, save for a nominal $1,000 bequest.

[6] After Bessie died, Sharon gave notice of an objection to both the two wills and the codicil. She claimed that her mother lacked testamentary capacity, did not know and approve of the contents of the wills and codicil, and was unduly influenced by Elaine to sign the documents. The respondent trustees moved for summary judgment to set aside the notice of objection and for a declaration that the wills and codicil were valid.

[7] The motion record was substantial: 20 witnesses gave evidence; examinations of the witnesses yielded over 1,700 pages of evidence; and the exhibits took up approximately 5000 pages. The motion was argued over three days. In lengthy and thorough reasons, the motion judge, Penny J., granted summary judgment dismissing Sharon’s objection. He held that there were no genuine issues requiring a trial. He concluded that Bessie Orfus had testamentary capacity in May and December 2004, that she knew and approved of the contents of her two wills and codicil, and that the execution of her testamentary documents was not procured by Elaine’s undue influence. However, he also concluded that Sharon had reasonable grounds to challenge her mother’s testamentary capacity and therefore made no order for costs.

[8] Sharon appeals the granting of summary judgment. The respondents seek leave to appeal the motion judge’s refusal to award them their costs.

[9] On her appeal, Sharon Gerstein makes four submissions. Her first and main submission is that the motion judge erred by granting summary judgment instead of ordering a trial of the issues. The motion judge decided this case before the release of our court’s judgment in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1. Sharon submits that on the “full appreciation” test set out in Combined Air, summary judgment was not appropriate.

[10] Second, Sharon submits that the motion judge erred in ruling inadmissible two voicemail messages left by Dr. Silberfeld, an expert capacity assessor. Dr. Silberfeld met Bessie Orfus in 2004 and said that he had the “impression” she lacked testamentary capacity. The motion judge ruled that his two voicemail messages did not meet either the test for the admission of hearsay or the test for the admission of expert evidence, largely because they were not reliable. Sharon says that the motion judge’s ruling is wrong in law.

[11] Third, Sharon submits that the motion judge erred by ruling inadmissible her evidence about her relationship with her mother and about her mother’s lack of sophistication in business matters. The motion judge ruled Sharon’s evidence about her relationship with her mother inadmissible because it was not corroborated, as required by s. 13 of the Evidence Act, R.S.O. 1990 c. E.23. He also referred to s. 13 in rejecting Sharon’s evidence about her mother’s business acumen. Sharon says that her evidence on both matters was corroborated.

[12] Fourth, Sharon submits that the motion judge erred in finding that Bessie Orfus knew and approved of the contents of her codicil. Sharon says that there was no evidence to support this finding.

[13] The respondents seek leave to appeal the motion judge’s costs order on two grounds. First, they submit that although Sharon may have had reasonable grounds to begin her will challenge, the motion judge erred by failing to find that she did not have reasonable grounds to pursue it, in the face of the evidence produced on the motion. Second, they submit that the motion judge erred by failing to give effect to their offer to settle.

[14] For the reasons that follow, I would dismiss Sharon Gerstein’s appeal and refuse the respondents’ request for leave to appeal the motion judge’s costs order.

B. summary of the relevant facts

[15] In his reasons, the motion judge set out the factual background to this dispute. I will summarize only those facts necessary to give a context to the issues on appeal.

(1) Bessie Orfus’ character and independence in 2003-2004

[16] The critical period in this litigation was 2003-2004. The uncontradicted evidence before the motion judge was that in this period, despite her age, Bessie Orfus was independent, self-sufficient, socially active, and strong-minded. She swam at least three times a week; she stayed alone in Florida for periods of a week or so; she took taxi cabs by herself; she spoke to her best friend almost daily; she visited other friends, went to charity events, musicals, theatre, and the movies; and she consulted with counsel alone about her wills.

[17] Bessie’s long-time cleaning lady said that she had a strong mind, “her own mind”. Her family doctor testified that Bessie was always engaged during her appointments with him. Her dentist said that Bessie was very independent. She wanted to do things for herself with no help from anyone. The motion judge fairly concluded at para. 27 of his reasons, that “[u]ntil the end, Bessie appears to have been a woman of strength and determination”.

(2) Bessie’s relationship with Elaine

[18] Elaine lived at home with her mother and looked after her. Undoubtedly the two had a close relationship and cared deeply about each other. As Bessie got older, Elaine became her primary caregiver. She drove her mother to her medical appointments, to Baycrest for swimming, to the hairdresser, to do household errands, and to shop for clothes.

[19] In her eulogy at Bessie’s funeral, Bessie’s granddaughter and Howard’s daughter, Carrie, paid tribute to Elaine with these words: “Elaine deserves special recognition as she has been my Bubi’s primary caregiver all these years and has done so much to help her live the great and long life that she did.”

(3) Bessie’s relationship with Sharon

[20] Sharon is Bessie’s oldest child. She married Marvin Gerstein, a paediatrician at Sick Children’s Hospital. They had one child, a son Mitchell, who apparently did not work and for ten years did not speak to his grandmother.

[21] Sharon’s husband died in 1984 but left her and her son very well-off. Sharon’s parents were also very generous to her. For example, they gifted Sharon the lot on which she and her husband built their home. This lot was right next door to the house where her parents and later Bessie and Elaine lived.

[22] Indeed, Sharon lived next door to her mother and Elaine for 35 years. Yet despite living next door, for many years Sharon did not even speak to her mother. In Bessie’s words, her relationship with Sharon was “not good”; Sharon was “indifferent” to her.

[23] Although Sharon did not work outside the home, she apparently did nothing to care for her mother. In the critical period of 2003-2004, Sharon admitted that she did not take her mother to medical appointments or shopping or swimming or to get groceries or to do errands. As the motion judge aptly observed, at para. 73 of his reasons: “Sharon had an entirely different relationship with Bessie than did Elaine”.

(4) The medical evidence on Bessie’s testamentary capacity

[24] On the key question of Bessie’s testamentary capacity in 2004, the motion judge had the evidence of four doctors: Dr. Colla, Dr. Dombrower, Dr. Shulman, and Dr. Silberfeld.

(i) Dr. Colla

[25] Dr. Colla had been Bessie’s family doctor for nearly 14 years. He saw Bessie on June 1, 2004, the day after she signed her two wills, and on November 25, 2004, two and a half weeks before she signed her codicil. Dr. Colla testified that he had no cognitive concerns about Bessie on either occasion.

(ii) Dr. Dombrower

[26] Dr. Dombrower was a geriatrician at Baycrest. He assessed Bessie in the morning of May 31, 2004, the day she signed her two wills. In Dr. Dombrower’s opinion, Bessie Orfus had testamentary capacity.

[27] As part of his assessment, Dr. Dombrower conducted a Mini Mental Status Examination. Bessie scored 25 out of 30. According to Dr. Dombrower this score showed only mild cognitive impairment. In his written report, Dr. Dombrower concluded:

Despite this mild cognitive impairment, it is my opinion that this lady is capable to make a Will or change her Will. There is no question in my mind that she currently exhibits the capacity to understand the purpose of a Will and the consequences of making one and not making one. She provided to me very reasonable explanations as to why certain assets were being divided up unequally. I do not believe that there is coercion. I asked Elaine to leave the room for a part of the assessment. And while Mrs. Orfus did confide in me that occasionally Elaine and she argue, there is clearly no verbal or physical abuse and she tells me that she has decided to change her Will on her own behalf.

(iii) Dr. Shulman

[28] Dr. Shulman, another expert capacity assessor, was retained by Sharon to review Dr. Dombrower’s report. He did not meet with or assess Bessie himself and had no independent evidence of her capacity.

[29] Dr. Shulman did not criticize Dr. Dombrowner’s administration of the Mini Mental Status Examination. However, he did criticize other aspects of Dr. Dombrower’s assessment, which the motion judge summarized, at para. 137 of his reasons:

Dr. Shulman went on to cite several specific concerns with Dr. Dombrower's assessment: the assessment was conducted partly in the presence of Bessie's daughter Elaine, who appeared to be an active participant. In the circumstances Dr. Dombrower was not able to establish Bessie's independence of thought from her daughter Elaine; Bessie did not appear to recall that she had executed prior wills and codicils; Dr. Dombrower did not have the root wills to review with Bessie; there was no review of the nature and extent of Bessie's assets which were very substantial and detailed; the description of the family history did not make it clear whether the information came from Bessie herself or from Elaine…

[30] However, because Dr. Shulman never met or assessed Bessie Orfus, the motion judge held, at paras. 115 and 218 of his reasons, that at most Dr. Shulman’s evidence showed that Dr. Dombrower’s report might have been more comprehensive:

[115] Sharon points to evidence concerning meetings with Bessie, Elaine and the lawyers to the effect that Elaine did most of the talking and that most of the information about Bessie's assets, family relationships and will instructions came from Elaine, not from Bessie herself. The principal lawyer involved in drafting the 2003 and 2004 wills was Schoenroth, who admitted that she “should have contacted Bessie directly but it was complicated and I was trying to move things along so that I could come up with a draft before she [Bessie] left for Florida.”

[218] Dr. Dombrower’s report, while perhaps not conclusive of Bessie’s capacity, is some evidence to be considered, in the context of all of the evidence, including the observations of Schoenroth, Lawrie and Dr. Colla. In the absence of any contrary report from another assessor, I fail to see how Dr. Shulman’s criticism of Dr. Dombrower’s report creates a triable issue about Bessie’s capacity. Dr. Shulman is simply in no position to comment on Bessie’s capacity at all.

(iv) Dr. Silberfeld

[31] Dr. Silberfeld met with Bessie Orfus on May 11, 2004. Both after that meeting and two days later, he telephoned Bessie’s lawyer, Lorna Shoenroth, and left her two voicemail messages. In the first of these messages, he said that he had the “impression” that Bessie Orfus was not capable of making her December 2003 wills but “may be capable of making a codicil”. In a second voicemail message, Dr. Silberfeld offered to meet with Bessie Orfus again, but another meeting never took place.

[32] The motion judge ruled that the two voicemail messages were inadmissible because they were not reliable either as hearsay evidence or as expert opinion evidence. Dr. Silberfeld had no files, no notes, and no recollection of meeting with Bessie Orfus. Thus, he could give no evidence about what led him to his impression that Bessie Orfus did not have testamentary capacity. The motion judge’s ruling is one of Sharon’s grounds of appeal, and I will discuss it later in these reasons.

(5) The 2004 wills and the evidence of Bessie’s lawyers on her testamentary capacity

[33] Bessie Orfus signed her two wills, a primary will and a secondary will, on May 31, 2004 in front of her two lawyers from Aird & Berlis, Lorna Schoenroth and Barbara Lawrie. Each lawyer testified that in her opinion, Bessie Orfus had testamentary capacity when she signed the two wills. Three important considerations give some context to these opinions.

[34] First, Bessie met three times with Schoenroth, Lawrie or both, in the absence of Elaine. These meetings took place on November 20, 2003, December 8, 2003, and May 31, 2004. Each meeting lasted between 20 minutes and two hours. At each meeting, Bessie confirmed her testamentary instructions. Bessie told her lawyers that she was leaving less to Sharon because she did not see Sharon much and because Sharon was “taken care of”. The trial judge accepted Bessie’s explanation. He found that Sharon held shares in the Orfus companies, received a $70,000 annual salary from these companies, had a beneficial interest in her husband’s $3 million estate, and had received from her parents the lot her house was built on.

[35] Second, Bessie’s lawyers prepared a chart of her assets and their values. Bessie looked at the chart and acknowledged that the items and figures were accurate.

[36] Third, although the two wills themselves were complicated documents, Schoenroth prepared a simple language memorandum of Bessie’s proposed dispositions. Schoenroth and Lawrie reviewed the memorandum with Bessie before she signed her wills, and Bessie initialed each page and then signed her name at the end of the memorandum. She gave understandable and compelling reasons for her dispositions:

I have left the largest portion of my estate to Elaine since we are very close, she works hard managing the Orfus companies and she takes good care of me. Sharon and her son, Mitchell, were well taken care of financially by Sharon’s late husband. Carrie was also taken care of financially by her late father, my son, Howard, in his will and she is in financially comfortable circumstances. I have given Carrie significant funds as a gift in the past and I have made a significant loan to her which she has repaid. Recently I have had little contact with Carrie or her children. I have decided to leave the assets that I would otherwise have left for Carrie to her children, in trust.

[37] Schoenroth and Lawrie still had some doubts whether Bessie knew the nature and the extent of her assets. Nonetheless, each was of the opinion that Bessie had testamentary capacity on May 31, 2004. Schoenroth explained why she held that opinion in a passage from her evidence relied on by the motion judge, at para. 164 of his reasons:

She knew the value of her home. She knew she had a cottage. She knew she had bank accounts. She did not understand the complex structure of this partnership of companies that were owned by a variety of family members in percentages that go to the third digit. She did not understand that. She understood that she had wealth. She understood, cash-wise, what people were getting, roughly, if the estate was worth 18 million, which is what I was trying to work with. But she did not understand what the shares were worth. I still felt she had the capacity to sign the will.

[38] Lawrie wrote a lengthy memorandum of her and Schoenroth’s meeting with Bessie on May 31, 2004. In that memorandum, Lawrie too states her opinion that Bessie had testamentary capacity:

Lorna spent much of the time reviewing with Bessie Orfus the provisions of the Wills, changes made from previous Wills, and, in that connection, Bessie's relationships with her children, grandchildren and great-grandchildren. I took 10 pages of handwritten notes, which are included for the file. During the meeting, I formed the view that that Mrs. Orfus did have testamentary capacity, and therefore it was appropriate to have her sign her Wills. The purpose of this memorandum is to set out why I believe that Mrs. Orfus had testamentary capacity…

[39] In finding that Bessie Orfus had testamentary capacity when she signed her two wills on May 31, 2004, the motion judge relied on the opinions of Schoenroth and Lawrie. He summed up his assessment of the evidence from the doctors and the lawyers, at para. 219-220 of his reasons:

[219] Thus, even if Dr. Dombrower’s report is held not to be conclusively determinative of Bessie's capacity and is accorded limited weight, this still leaves, as the best evidence of Bessie’s cognitive function, Schoenroth and Lawrie’s evidence about their meeting with Bessie on May 31 and Dr. Colla’s notes of his June 1 meeting with Bessie. Dr. Colla, I note, primarily practiced with geriatric patients. All of that evidence is consistent with Bessie having had testamentary capacity on that day.

[220] And, most importantly, none of that evidence is contradicted, other than by Sharon's bald assertion that her mother never had capacity to make a will dealing with the Orfus Companies because she did not understand the corporate structure of her husband’s real estate business. Dr. Shulman’s report is insufficient to demonstrate that a trial is required on the issue of Bessie’s testamentary capacity.

(6) The oppression litigation

[40] In November 2003, Carrie and her step-mother began oppression proceedings concerning the Orfus companies against Bessie, Elaine, Sharon, and others. In February 2004, Sharon withdrew her support of Bessie in that litigation. Instead, she sought to be bought out of the Orfus companies – in the motion judge’s words, at para. 281 of his reasons, “thus hastening the dismantling of all that Samuel, Bessie’s husband of 50 years had built”.

[41] In November 2004, Sharon started her own oppression proceedings against Bessie and others. On December 14, 2004, Sharon obtained an order for the winding up of the Orfus companies. Bessie consented to the order. Sharon never claimed or suggested to the court that Bessie lacked the capacity to give her consent. As a result of the winding up of the Orfus companies, Sharon received $9 million.

(7) The codicil

[42] On December 13, 2004 the day before the winding up order was made in the oppression litigation, Bessie signed a codicil to her will. As I said in the overview, in that codicil Bessie cut Sharon entirely out of her will except for a nominal $1,000 bequest.

[43] The codicil was prepared by the respondent, Myer Botnick, a solicitor who had known Bessie for many years, and his associate Aaron Mitnick. They received their instructions from Elaine. Neither met with Bessie before December 13, and neither has any recollection of the meeting with Bessie at which she signed the codicil. Whether, in these circumstances, the motion judge erred in finding that the codicil was valid is a separate ground of appeal, which I discuss later in these reasons.

C. the appeal

First Issue – Did the motion judge erred in granting summary judgment instead of ordering a trial of the issues[^1]

[44] Our new Rule 20, the summary judgment rule, came into effect on January 1, 2010. Rule 20.04(2) now provides:

20.04 (2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

20.04 (2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

Oral Evidence (Mini-Trial)

20.04 (2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[45] The new Rule 20 gave judges expanded powers on motions for summary judgment. The motion judge decided this case under the new Rule 20. However, he decided it on September 30, 2011, about two months before this court released its decision in Combined Air.

[46] By the time the motion judge decided this case, there was a good deal of jurisprudence from trial judges on how the new Rule 20 was to be interpreted. But in Combined Air, at para. 35, we said that “our decision marks a new departure and a fresh approach to the interpretation and application of the amended Rule 20”. The motion judge, therefore, did not have the benefit of this “fresh approach”.

[47] As a benchmark, we set out a “full appreciation” test for deciding whether a trial is required in the interest of justice. Under the full appreciation test, the motion judge must ask: “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”. See Combined Air, at paras. 50-51. The question whether there is a genuine issue requiring a trial is a legal determination, reviewable on a standard of correctness.

[48] Sharon submits that the full appreciation of the evidence and issues in this case could only be achieved at a trial. In making this submission she relies on the following passage from Combined Air, at para. 51:

In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.

[49] Sharon says that credibility lay at the heart of this dispute and that the motion judge was required to make highly contested findings of fact on a record replete with conflicting evidence. Thus, he could not fairly decide this case by summary judgment.

[50] I do not accept Sharon’s submission. Although the motion judge did not have the benefit of Combined Air, I am satisfied that his appreciation of the evidence enabled him to decide by summary judgment the issues relating to Bessie Orfus’s testamentary dispositions. The “interest of justice” did not and does not now require a trial.

[51] As I said in the overview, the record on the motion was substantial, even “voluminous” – an exhibit book of 5,000 pages and 1,700 pages of transcripts of evidence. And many witnesses – 20 – gave evidence either by affidavit or by oral examination under rule 39.03. However, the size of the record, standing alone, or even the number of witnesses, standing alone, is not a sufficient reason to send a case to trial. The motion judge has to consider whether the record and the issues require the making of difficult credibility assessments or many findings of fact that are highly disputed because conflicting or contradictory evidence. If so, then a trial is the appropriate procedure. If not, then summary judgment may be appropriate.

[52] Here, I do not think that this large record with its numerous witnesses yielded the kind of case that we said in Combined Air required a trial. This is not a case where many witnesses said one thing and many other witnesses said something else. Of the 20 witnesses who gave evidence, only three were proffered by the appellant: Dr. Silberfeld, Dr. Shulman, and Sharon Gerstein herself. Dr. Silberfeld’s voicemail messages were ruled inadmissible; but even if they were admissible, he had no memory of his meeting with Bessie Orfus. Dr. Shulman criticized some aspects of Dr. Dombrower’s capacity assessment, but he never met Bessie Orfus or had any direct knowledge of the matters in issue.

[53] Sharon Gerstein was the sole fact witness for the appellant. However, as she hardly saw her mother, she knew little if anything about her mother’s capacity. Some of her evidence was not admissible because it was not corroborated. And virtually all of her evidence was inconsistent with the testimony of the 17 witnesses who gave evidence for the respondents.

[54] Thus, the motion judge was not required to make contested findings of fact on conflicting evidence. The motion judge’s task was to assess the evidence in the record and decide whether sufficient evidence existed to show whether Bessie Orfus had testamentary capacity and knew and approved of the contents of her testamentary instruments. The motion judge was as well positioned as a trial judge to undertake that assessment.

[55] This was also not a case where credibility was genuinely in issue.

• Bessie Orfus’s credibility was of course not in issue because she was no longer alive.

• Sharon Gerstein had virtually no relationship with her mother and therefore no evidence to give about her mother’s testamentary capacity.

• Dr. Dombrower’s credibility was not in issue. Although aspects of his assessment were criticized, his credibility was not. Moreover, he is now dead, so at a trial only a transcript of his evidence would be available.

• The two Aird & Berlis lawyers, Lorna Schoenroth and Barbara Lawrie, were the sole surviving witnesses to the two wills. Their evidence was consistent: despite some concerns, they both were of the opinion that Bessie Orfus had testamentary capacity. Although Schoenroth may be criticized for trying to “bury” Dr. Silberfeld’s voicemail messages, no evidence was led to impugn either her credibility or Lawrie’s credibility on the key issue of Bessie Orfus’s testamentary capacity.[^2]

• Dr. Shulman’s credibility was not in issue. His evidence, understandably, was given less weight because he had not seen Bessie Orfus and could give no direct evidence of her capacity.

• Dr. Silberfeld’s credibility was not in issue because he had no memory or notes of his meeting with Bessie Orfus.

• Botnick’s and Mitnick’s credibility were not in issue because neither had any memory of the meeting at which Bessie Orfus signed her codicil.

• Elaine Orfus, alone, could give evidence about what occurred when her mother signed the codicil to her will.

[56] As this summary shows, the motion judge was not required to make and he did not make findings of credibility that affected his determination of the issues relating to the validity of Bessie Orfus’s two wills and codicil.

[57] An examination of the evidence relating to the question whether Bessie Orfus had testamentary capacity in May 2004 when she made the two challenged wills shows why it would not be in the interest of justice to order a trial. The potential evidence on her capacity comes from Dr. Dombrower, Dr. Shulman, Dr. Silberfeld, Dr. Colla, Lorna Schoenroth, and Barbara Lawrie.

[58] Dr. Dombrower is now dead; Dr. Shulman did not see Bessie Orfus; Dr. Silberfeld remembers nothing; and Dr. Colla, Schoenroth and Lawrie are consistent in their opinion that Bessie Orfus had testamentary capacity. Indeed, the two lawyers gave evidence – uncontradicted evidence – that they met alone with Bessie Orfus three times and that she independently expressed her dispositive wishes – wishes that she confirmed by signing a plain language memorandum on May 31, 2004. How then, I ask rhetorically, can it be in the interest of justice to order a trial? The simple answer is that it is not in the interest of justice to do so.

[59] Sharon, however, points to what she alleges is significant evidence contradicting the motion judge’s finding that Bessie Orfus knew the value of her assets. Sharon contends that this is one example of an important issue for which there is contradictory evidence, which should be resolved at a trial. I disagree.

[60] The concern about Bessie’s knowledge of her assets and their value comes from the evidence of Schoenroth and Lawrie. However, a competent testator does not have to know the precise make up of her estate. She only need know in a general way the nature and extent of her property. See Re Schwartz, 1970 CanLII 32 (ON CA), [1970] 2 O.R. 61 (C.A.), at p. 78, Laskin J.A. dissenting on other grounds. In this case, the lawyers showed Bessie Orfus a chart of her assets, which she acknowledged accurately represented their value.

[61] In finding that Bessie knew the value of her estate, the motion judge relied on her acknowledgment of the accuracy of the chart as well as on her ability to enumerate real estate values. In doing so, he rejected Sharon’s claim that her mother was “passive” and that thus her acknowledgement should carry no weight. As Bessie would not be available to testify, a trial judge could hardly be in a better position to make this finding.

[62] I am thus satisfied that the motion judge had a “full appreciation” of the evidence and the issues needed to decide this case by summary judgment. I would not give effect to this ground of appeal.

Second Issue – Did the motion judge err by ruling inadmissible Dr. Silberfeld’s two voicemail messages?

[63] When Lorna Schoenroth began preparing Bessie Orfus’ 2003 wills, she worked at the law firm of Margaret O’Sullivan, a senior estate practitioner. Schoenroth then moved to the Aird & Berlis law firm, where she continued to work on Bessie’s wills. In February 2004, O’Sullivan wrote to Schoenroth and raised concerns about the preparation of the 2003 wills. She recommended that Bessie undergo a testamentary capacity assessment and that Schoenroth prepare new wills. Schoenroth followed her advice.

[64] Schoenroth arranged for Bessie Orfus to see Dr. Silberfeld, an experienced capacity assessor, whom O’Sullivan had recommended. Bessie met with Dr. Silberfeld on May 11, 2004, just weeks before she signed her 2004 wills. After the meeting, Dr. Silberfeld telephoned Schoenroth and left a voicemail message in which he said that he had the “impression” Bessie did not have testamentary capacity. The full text of his message is as follows:

Hello, it’s Dr. Silberfeld calling. I’ve had the opportunity to meet Mrs. Orfus for the first time and it’s my impression that today she would not be capable of giving her December Will, of making her December Will that is, and perhaps you and I should speak about this. She may be capable of making a Codicil, which I think sounded to me like it might perhaps do the job, and we could have a look at that. 416.482.1477.

[65] Two days later, Dr. Silberfeld telephoned Schoenroth again and left anther voicemail message in which he cast further doubt on Bessie’s capacity. The text of the second message is as follows:

Hello, it’s Michel Silberfeld returning your call. I can start by saying yes, you’re right that Mrs. Orfus did know her relationships, that she had right, but that was almost the only thing that she had right. Except a crude knowledge of her physical assets, she knew very little about the rest. So, there were just a number of things. Now if what you’d like to do is spend some time educating her with respect to the Will and then send her to see me, you’re right we should co-ordinate that. Next week Thursday I’m travelling, so that’s not going to work. Probably the best time would be the following week May 25th at a quarter to six again if you could co-ordinate your efforts that way, then let’s make a tentative over the phone suggestion that we’ll try to do it again at that time. Now, of course, there’s no guarantee that I’m going to give the answers that you want, and I think that if you’re really searching hard for the answers that you want, then maybe your best approach might to look around for an assessor who will give you the results that you want, I know that that can happen sometimes just by shopping around. So, let me know how you want to proceed and I’ll be happy to help in any way I can.

Schoenroth was sufficiently troubled by Dr. Silberfeld’s messages that she took steps to “bury” them – a process the motion judge aptly characterized as “flawed”.

[66] Dr. Silberfeld kept no file of his meeting with Bessie Orfus and no notes of that meeting. Seven years later when he gave evidence on the summary judgment motion, he had no memory of the meeting at all or what he did that led to his impression of Bessie’s lack of capacity. Nonetheless, Sharon sought to tender Dr. Silberfeld’s two voicemail messages as opinion evidence of her mother’s lack of testamentary capacity. The motion judge ruled the voicemail messages inadmissible, either as hearsay that was both unnecessary and unreliable or as expert evidence that did not meet the test in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. Sharon submits that he erred in his ruling. I do not think that he did.

[67] Dr. Silberfeld’s voicemail messages are out-of-court statements that were not subject to contemporaneous cross-examination. They are, therefore, hearsay: see R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. Whether looked at under the principled approach to the admission of hearsay evidence or under the Mohan test for the admission of expert opinion evidence, to be admissible the two messages had to meet the requisite reliability criterion.

[68] The motion judge ruled, at para. 206, that the two messages did not meet the reliability criterion for the admission of hearsay:

Perhaps more importantly, the transcripts of the voicemail messages are not reliable because, while I accept there is no reason to doubt that the voicemail messages were left and were accurately transcribed, Dr. Silberfeld admits to having no recollection of meeting Bessie, no recollection of the interview or what he did during the interview, and to having no notes, no file and no independent memory of anything, including leaving the voicemails.

[69] More significantly, however, the motion judge recognized that Sharon principally sought to rely on Dr. Silberfeld’s voicemail messages as expert opinion evidence showing her mother’s lack of testamentary capacity. The motion judge rejected that basis of admissibility because as opinion evidence the two messages lacked reliability. He explained in some detail why he reached that conclusion, at para. 209:

In my view, even if Dr. Silberfeld's “impressions” could be said to be relevant to the issue of testamentary capacity, the reliability of those impressions is fatally undermined by the total absence of any evidence, or even recall, of what he did to form that impression. In the absence of a reliable scientific foundation for the proffered opinion evidence, the opinion itself necessarily lacks reliability. In fact, the text of Dr. Silberfeld’s voicemails themselves suggest he did not conduct the scientific inquiry necessary to form a proper opinion. Rather, he formed an “impression” before engaging in the necessary analysis, and passed that impression on to Schoenroth so that she could decide whether, in light of his “impression,” a proper analysis should even be undertaken. Dr. Silberfeld concedes that he did not definitively conclude that Bessie lacked testamentary capacity. His message confirms he was prepared to meet with Bessie again once she had “refreshed herself” about her assets and that she might, in any event, have capacity to execute a codicil without any further education. There is, of course, in law no different standard for capacity to execute a codicil as opposed to a will because codicils effectively republish the subsisting will.

[70] I agree with the reasons given by the motion judge at para. 209 and, therefore, would not interfere with his ruling that Dr. Silberfeld’s voicemail messages were inadmissible. Accordingly, I would not give effect to this ground of appeal.

Third Issue – Did the motion judge err by ruling inadmissible Sharon’s evidence about her relationship with her mother and her mother’s lack of sophistication in business?

[71] Section 13 of the Evidence Act states:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

[72] At para. 15 of his reasons, the motion judge summarized the content of s. 13 and its rationale:

Section 13 of the Evidence Act requires that there be corroboration of material facts alleged by an opposite or adverse party of any matter occurring before the death of the testator. This requirement exists to address the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the livings’ version of events: Burns Estate v. Mellon (2000), 2000 CanLII 5739 (ON CA), 48 O.R. (3d) 641 (C.A.).

[73] The motion judge relied on s. 13 to exclude Sharon’s evidence about her relationship with her mother and referred to s. 13 when discussing Sharon’s evidence that her mother was unsophisticated in business. Sharon submits that the motion judge erred because on both matters her evidence was corroborated. I do not accept Sharon’s submission.

(a) Sharon’s relationship with her mother

[74] Sharon swore in her affidavit that after she had a falling out with Elaine she had difficulty continuing her relationship with her mother. But she maintained that she continued to speak and meet with her mother outside of Elaine’s presence. She also claimed that she had an excellent relationship with her mother. Numerous witnesses testified otherwise. Nonetheless, Sharon contends that Bessie’s granddaughter, Carrie, corroborated her evidence. I do not think that she did, at least in the relevant period.

[75] Carrie did testify she was aware that her grandmother would motion to Sharon through a window to come and visit her. But Carrie admitted that she had not seen Bessie do this between September 2003 and May 2004. Therefore, she does not corroborate Sharon’s testimony during the critical time period.

(b) Bessie Orfus’s alleged lack of sophistication in business

[76] Sharon testified that her mother was not sophisticated in business matters and did not have the capacity to understand complex documents like wills. Although the motion judge referred to s. 13 in connection with Sharon’s evidence on her mother’s business acumen he did not rely on it. Instead, he considered Sharon’s testimony and rejected it. In doing so, he relied on the evidence of Dr. Dombrower, Lawrie, and Schoenroth – specifically their dealings with Bessie in connection with the 2004 wills. This evidence was essentially uncontradicted.

[77] I would not give effect to this ground of appeal.

Fourth Issue – Did the motion judge err in finding that Bessie Orfus knew and approved of the contents of her codicil?

[78] Elaine Orfus contacted the respondent Botnick and asked him to prepare the codicil. She then relayed her mother’s instructions to him. She said that she chose Botnick because her mother knew and liked him and because he was less expensive than Aird & Berlis.

[79] Botnick and his associate Mitnick did not speak to Bessie Orfus about her codicil. They did not have a copy of the 2004 wills that the codicil was intended to amend. And although they met with Bessie Orfus on December 13, 2004 so she could sign the codicil, neither Botnick nor Mitnick has any recollection of the meeting.

[80] The motion judge recognized that the execution of the codicil raised concerns. And he excluded Elaine’s evidence about its execution because her evidence was not corroborated. Although on appeal, the respondents for the first time sought to argue that Elaine’s evidence was corroborated, I would not interfere with the motion judge’s holding that it was not.

[81] Still, despite the seeming paucity of the evidence surrounding the execution of the codicil, the motion judge found that Bessie knew and approved of its contents and had testamentary capacity when she signed it. He wrote, at para. 230:

There is no doubt that the process followed to prepare and execute the Codicil raises many questions and provides few answers. Importantly, however, there is no evidence that Bessie’s capacity changed between May 31 and December 13, 2004, the date on which the Codicil was signed. There is no evidence of any medical event that occurred in Bessie's life in the intervening six and one half months that could have affected her cognition. Indeed:

(a) on November 5, 2004, Sharon issued her oppression application against her mother and did not seek the appointment of a litigation guardian;

(b) on November 25, 2004, Dr. Colla saw Bessie and had no cognitive concerns about her;

(c) on December 14, 2004, the court entered an order in the oppression proceeding in which Bessie was a party for the liquidation and wind-up of the Orfus Companies. Bessie did not oppose this order;

(d) during the winter of 2004, Bessie remained in Florida on her own for periods of a week or so at a time;

(e) on June 22, 2005, some six months after the execution of the Codicil, Dr. Colla saw Bessie and had no cognitive concerns about her; and

(f) in August 2004 and 2005, Dr. Colla certified to Baycrest that there were no neurological issues with Bessie so that she could participate in the swimming program there.

[82] Sharon submits that the motion judge erred in making this finding. She argues that the respondents had the onus to prove that Bessie knew and approved of the contents of her codicil and that in the absence of any evidence from Botnick and Mitnick they failed to do so.

[83] This is the most difficult issue on the appeal. Admittedly, Bessie Orfus duly signed her codicil. And, ordinarily on proof of due execution, it will be presumed that the testator knew and approved of the contents of the testamentary instrument and had testamentary capacity. But that presumption will not apply where suspicious circumstances are present: see Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, at p. 889. Here, the motion judge correctly found that suspicious circumstances existed. They existed because Elaine provided all the instructions for the codicil to Botnick and because she benefited from the codicil by receiving half the assets that had been designated for Sharon under the 2004 wills.

[84] Thus, the estate trustees could not rely on the presumption. They had to prove on a balance of probabilities that Bessie Orfus knew and approved of the contents of her codicil, indeed that she had testamentary capacity. The motion judge found that they met their burden, and I am not persuaded that he erred in making that finding.

[85] As the motion judge noted, no evidence was led that Bessie Orfus lacked testamentary capacity in December 2004 or that her cognitive abilities had changed in any way between May and December 2004. In addition to this “negative” evidence, however, there are two cogent pieces of positive evidence that reasonably support the motion judge’s finding.

[86] The first and most important piece of evidence is Sharon’s stance in the oppression litigation she commenced against her mother and others. In that litigation, Sharon never alleged or told the court that her mother was a party under disability. Instead, she accepted her mother’s consent to the winding-up of the Orfus companies, from which she received a $9 million payout. Significantly, the winding-up order was made on December 14, 2004, one day after Bessie Orfus signed her codicil.

[87] The second piece of evidence that supports the motion judge’s finding is the testimony of Dr. Colla, who had been Bessie Orfus’ family doctor for 14 years. Dr. Colla saw Bessie just a few weeks before she signed the codicil. He testified that when he saw her he had no concerns about her cognitive capacity.

[88] For these reasons, the motion judge did not err in finding that Bessie knew and approved of the contents of her codicil and had testamentary capacity when she signed it. I would not give effect to this ground of appeal.

D. the cross-appeal on costs

[89] In McDougald Estate v. Gooderham (2005), 2005 CanLII 21091 (ON CA), 255 D.L.R. (4th) 435 (Ont. C.A.), this court said that the costs rules in civil litigation apply to estate litigation unless one or more public policy considerations come into play. Gillese J.A. set out these policy considerations, at para. 78:

The practice of the English courts, in estate litigation, is to order the costs of all parties to be paid out of the estate where the litigation arose as a result of the actions of the testator, or those with an interest in the residue of the estate, or where the litigation was reasonably necessary to ensure the proper administration of the estate. See Mitchell v. Gard (1863), 3 Sw. & Tr. 275, 164 E.R. 1280 and Spiers v. English, [1907] P. 122. Public policy considerations underlie this approach: it is important that courts give effect to valid wills that reflect the intention of competent testators. Where the difficulties or ambiguities that give rise to the litigation are caused, in whole or in part, by the testator, it seems appropriate that the testator, through his or her estate, bear the costs of their resolution. If there are reasonable grounds upon which to question the execution of the will or the testator’s capacity in making the will, it is again in the public interest that such questions be resolved without cost to those questioning the will’s validity.

[90] The motion judge found that Sharon had reasonable grounds to challenge her mother’s testamentary capacity to make the 2004 wills and codicil.

[91] The motion judge also discounted an offer to settle made by the respondents about seven months before the motion was heard. He was not persuaded that the judgment obtained by the respondents bettered their offer, but even if it did, he would have exercised his discretion to “order otherwise” under rule 49.10(1). Therefore, the motion judge ordered no costs of the motion – in effect each side had to bear its own costs.

[92] The respondents do not have a right to appeal costs. They must first obtain the leave of this court to do so. They properly acknowledge that this court rarely grants leave to appeal costs orders. Costs orders are an exercise of judicial discretion. A party seeking to appeal a costs order must make out a strong case that the judge made a reviewable error in the exercise of this discretion.

[93] The respondents submit that the motion judge made two errors in the exercise of his discretion, either of which warrants leave being granted. First, they submit that though Sharon may have had reasonable grounds to launch her will challenge, those reasonable grounds evaporated once the evidence unfolded and the motion judge erred by failing to so find. Second, they submit that their offer to settle was a proper Rule 49 offer, which the motion judge should have given effect to because the result the respondents obtained was more favourable than their offer. If leave to appeal costs is granted, the respondents seek substantial indemnity costs of $397,062.25 or partial indemnity costs of $250,000.

[94] I would not grant leave to appeal costs. In my opinion, the motion judge did not commit a reviewable error in the exercise of his discretion.

(a) The application of McDougald Estate v. Gooderham

[95] At paras. 8 and 9 of his costs endorsement, the motion judge set out why he found Sharon had reasonable grounds to challenge the validity of Bessie Orfus’ wills and codicil:

I concluded, in effect, that while there was “smoke,” there was no “fire.” However, I do not think it can be said that there were no reasonable grounds for Sharon to raise these challenges to Bessie’s capacity. Bessie lived with Elaine. There were, as I found in my Judgment, suspicious circumstances surrounding the execution of the Codicil. Questions were raised, even by Bessie’s lawyers, about her capacity in relation to understanding the full extent of her assets. The process followed by Aird & Berlis concerning Bessie’s testamentary capacity and, more specifically, the attempts to “protect” the 2004 Wills against the very type of challenge that was ultimately made, was flawed.

The fact that Sharon was unsuccessful cannot mean that it was unreasonable for her to have raised these questions. Obviously, there must be something more. I am, however, not satisfied that there was enough of this “something more” to warrant the conclusion that Sharon’s challenge to the 2004 Wills and Codicil was unreasonable.

[96] Of the considerations the motion judge referred to in para. 8, the fact that Bessie lived with Elaine was the sole consideration known by Sharon when she launched her challenge. The other considerations only became evident as the evidence unfolded. Thus, I am satisfied that the motion judge considered whether Sharon had reasonable grounds both to launch her challenge and to pursue it. He found that she did. He did not err in making this finding.

(b) The respondents’ offer to settle

[97] The respondents offered to settle the litigation on the following terms:

• Sharon would agree that the two wills were valid and would not litigate their validity.

• Sharon could proceed to trial on the question whether the codicil was valid.

• Sharon would pay the respondents’ costs on a partial indemnity basis up to the date of the offer.

• Sharon would pay the respondents’ costs on a substantial indemnity basis after the date of the offer.

Sharon did not accept the offer to settle.

[98] The motion judge did not give effect to the offer. He said at paras. 11 to 12 of his endorsement:

I am not sure it is correct to say that the applicants received a judgment better than this offer. I say this because, in effect, all that was offered to Sharon was a chance to attack the Codicil which, in light of my Judgment, would not have been successful.

In any event, even if it could be said that the judgment was better than the offer, it is not, in my view, the sort of offer which, in the circumstances of this case, should attract liability for substantial indemnity costs. Even if I agreed with the applicants about the status of the offer, therefore, I would have “ordered otherwise” under Rule 49.10.

[99] I am inclined to agree with the motion judge that because of the costs component of the offer, the respondents did not obtain a result more favourable than their offer to settle. However, even if that is not correct, the motion judge did not err in the exercise of his discretion by invoking the proviso in rule 49.10, “unless the court orders otherwise”.

[100] For these reasons, the respondents have not persuaded me that they have a case to appeal the motion judge’s costs order. I would deny leave to appeal.

E. conclusion

[101] I conclude that the motion judge did not err by:

(a) granting summary judgment;

(b) ruling inadmissible Dr. Silberfeld’s two voicemail messages;

(c) ruling inadmissible Sharon Gerstein’s evidence about her relationship with her mother and rejecting her evidence about her mother’s lack of sophistication in business matters; and

(d) finding that Bessie Orfus’s knew and approved of the contents of her codicil.

[102] I would, therefore, dismiss Sharon Gerstein’s appeal.

[103] I also conclude that the motion judge properly applied this court’s decision in McDougald Estate v. Gooderham on costs in estate matters and that he properly discounted the respondents’ offer to settle. Accordingly, on the respondents’ cross-appeal of the motion judge’s costs order, I would deny leave to appeal.

[104] The parties may make brief submissions in writing on the costs of the appeal and the cross-appeal within 15 days of the release of these reasons.

Released: Apr. 10, 2013 “John Laskin J.A.”

“JL” “I agree Robert J. Sharpe J.A.”

“I agree Gloria Epstein J.A.”

[^1] Summary judgment is available in will challenge cases. See, for example, Smith Estate v. Rotstein, 2011 ONCA 491, 106 O.R. (3d) 161.

[^2] See paragraph 65 of these reasons.