Court of Appeal for Ontario

CITATION: Spylo v. Spylo, 2016 ONCA 151

DATE: 20160225

DOCKET: C59435

MacPherson, van Rensburg and Miller JJ.A.

BETWEEN

Andrew Spylo, Annemarie Nittel and Katherine Duncan

Plaintiffs (Appellants)

and

Gordon Spylo, personally and as Estate Trustee for Mike Spylo and as Estate Trustee for Antoinette Spylo and Bonnie Spylo

Defendants (Respondents)

Counsel:

Brendan Donovan, for the appellants

Jamie Spotswood, for the respondents

Heard: February 22, 2016

On appeal from the judgment of Justice A. Duncan Grace of the Superior Court of Justice, dated September 4, 2014.

ENDORSEMENT

[1] The appellants, Andrew Spylo and Annemarie Nittel, appeal from the judgment of Grace J. of the Superior Court of Justice. Justice Grace dismissed the appellants’ claim against the respondent Gordon Spylo both in his personal capacity and in his capacity as estate trustee for the estates of Andrew’s and Gordon’s parents, Michael and Antoinette Spylo.

[2] This appeal arises from a dispute between siblings over the estates of their parents who died in 1985 (Michael) and 1986 (Antoinette). The son Gordon was named as estate trustee and Gordon and the daughter Katherine were beneficiaries. The son Andrew was left nothing in both parents’ wills.

[3] Andrew claimed that there was a secret trust created in his favour by the estate trustee Gordon and acquiesced in by his sister Katherine. He also claimed that he was entitled to the surplus proceeds from the sale of a property in Waterloo because Gordon held that property in trust for Andrew and Annemarie.

[4] The trial judge rejected these claims. The appellants appeal on three grounds.

[5] First, the appellants contend that the trial judge erred by finding that there was no secret trust in Andrew’s favour. They rely in particular on the evidence relating to the T3 tax forms showing monies paid to Andrew from each estate. The forms, enclosed in a letter to Katherine, were never provided to Andrew. Andrew says that these establish the existence of a trust in his favour.

[6] We do not accept this submission. Gordon and Andrew represented themselves at their trial. The result was a huge gap in documentary evidence and, often, very confusing testimony. The trial judge did his best in this difficult context. Ultimately, he concluded:

In my view, the T3’s have nothing to do with the alleged secret trust. They relate to a dispute that arose after Mike died in 1985. They were created to address issues that arose in relation to the Castlefield property after Gordon acquired it in 1986.

[7] The trial judge reached this conclusion after a careful review of the conflicting evidence, including the testimony of Gordon and Andrew. There is nothing in the evidence nor in the trial judge’s assessment of Andrew’s credibility, and his rejection of Andrew’s evidence on certain points, that would lead us to the required label of ‘palpable and overriding error’ for the above conclusion.

[8] Second, the appellants submit that the trial judge erred by concluding that Gordon did not hold the Castlefield property in trust for Andrew after Gordon purchased it from Andrew.

[9] At trial, Andrew produced one document to support the existence of this trust. He could not produce the original of the document and the trial judge drew an adverse inference against him. Gordon testified that although his handwriting appeared to be on the document, it was not authentic. Importantly, Andrew testified that Gordon gave him the document, which was dated May 15, 1986, in Waterloo that day. However, Gordon signed an entirely different document, and swore it before a Commissioner in Timmins on May 15, 1986. In these circumstances, we cannot conclude that the trial judge committed a palpable and overriding error by concluding, “I do not believe Andrew’s evidence concerning the creation and execution of the trust document.”

[10] Third, the appellants submit that a single intervention by the trial judge during Andrew’s testimony relating to other judgments against him “crossed the line” and destroyed the image of judicial impartiality.

[11] We disagree. The appellants conceded that all of the other interventions by the trial judge in the several days of trial with self-represented litigants were beyond reproach and even quite helpful. In that context, the single brief question and comment about other judgments against Andrew do not reach the high threshold required for a finding of reasonable apprehension of bias.

[12] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $18,000, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“K. van Rensburg J.A.”

“B.W. Miller J.A.”