COURT OF APPEAL FOR ONTARIO

DATE: 20240220

DOCKET: C66527

Roberts, Sossin and Dawe JJ.A.

BETWEEN

Gayle Shannon Applicant (Respondent)

and

Michael Hrabovsky and Glenn Hrabovsky, both in their capacities as Estate Trustees with a Will of the Estate of Andrew Hrabovsky, deceased, and in their personal capacities Respondents (Appellants)

Norman Ronski, for the appellants Vusumzi Msi, for the respondent

Heard: in writing

On appeal from the order of Justice Herman J. Wilton-Siegel of the Superior Court of Justice, dated November 2, 2018, with reasons reported at 2018 ONSC 6593.

Dawe J.A.:

A. Overview

[1] The testator Andrew Hrabovsky (“the testator”), who died in November 2014, had two adopted children: Gayle Shannon, who is the respondent in this appeal, and Glenn Hrabovsky, who is one of the two appellants. The second appellant, Michael Hrabovsky, is the testator’s brother. [1]

[2] During his lifetime the testator made a series of wills. In April 2002 the testator executed a last will and testament (the “2002 Will”) which left equal bequests of ten percent of the residue of his estate to Gayle and Glenn’s children and divided the remainder equally between Gayle and Glenn. In November 2006 the testator executed a new will (the “2006 Will”) which was even more favourable to Gayle, in that it also left her title to the testator’s Toronto residence. The testator had previously made Glenn a joint tenant of a cottage property, so that ownership would pass to Glenn on his death outside his will, by right of survivorship. The 2006 Will also added Gayle as a third executor, along with Glenn and Michael.

[3] However, in July 2007, the testator executed another will (the “2007 Will”) which disinherited Gayle and removed her as an executor. The 2007 Will increased the percentage share of the bequests to Gayle and Glenn’s children, from ten percent of the residue to fifteen percent, but removed the bequest to Gayle of the Toronto house and left the balance of the residue of the estate entirely to Glenn. It also stated that if Glenn predeceased the testator, the balance of the residue would pass entirely to his children, rather than being shared equally with Gayle’s children.

[4] The 2007 Will also stated that the testator was forgiving a debt owed by Gayle of money loaned to her “that she has not paid back to me”. As will be discussed later, this apparently referred to certain purchases Gayle had made in or around 2005 using the testator’s credit card.

[5] The 2007 Will also significantly increased the size of the bequest to the testator’s brother Michael. It had been $30,000 in the 2002 Will and had then been raised to $35,000 in the 2006 Will but was now increased to $100,000.

[6] After the testator’s death in November 2014, Gayle commenced an application by notice dated December 23, 2016, in which she challenged the validity of the 2007 Will, contending that the testator had lacked testamentary capacity when he made it. The application judge granted the application on November 2, 2018, set aside the 2007 Will, and restored the 2006 Will as the testator’s true last will and testament. However, he did not give effect to Gayle’s alternative argument that the testator had been subject to undue influence from Glenn when he made the 2007 Will.

B. Issues

[7] Glenn and Michael appeal. Their main argument is that the application judge should have found that Gayle’s application was statute-barred by the two-year limitations period in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Limitations Act”). They seek to support this ground of appeal by adducing fresh evidence.

[8] The appellants’ second ground of appeal is that the application judge erred by giving insufficient weight to the evidence supporting their position that the testator had testamentary capacity when he made the 2007 Will. They also seek to support this ground with fresh evidence.

[9] In response, Gayle brings her own motion to adduce fresh evidence in support of her position that the 2007 Will was properly set aside by the application judge.

[10] For the reasons that follow, the appellants’ motion to adduce fresh evidence is dismissed. Their appeal from the order setting aside the 2007 Will is also dismissed. As a result, it is unnecessary for me to address or consider the respondent’s motion to adduce fresh evidence.

C. Procedural History

[11] This appeal was originally scheduled to be heard on December 18, 2023. However, on December 8, 2023 counsel for the appellants wrote to request an adjournment, citing both personal and medical reasons. Counsel for the respondent opposed the request. After a conference call with the president of the panel, both counsel agreed to have the appeal converted to an appeal in writing, and both parties filed supplemental factums.

D. First Ground: The Limitations Issue and Related Fresh Evidence

[12] The appellants’ first ground of appeal takes issue with the application judge’s conclusion that Gayle’s challenge to the validity of the 2007 Will was not limitations-barred. They seek to challenge the application judge’s findings of fact concerning the limitations issue by presenting fresh evidence.

(1) The Evidence that was Before the Application Judge

[13] It was undisputed that on July 24, 2007, the testator went to the office of his lawyer, Ann Woodruff, and executed a new will. Ms. Woodruff had also prepared the testator’s 2002 and 2006 Wills. As discussed above, the 2007 Will disinherited Gayle and left the residue of the testator’s estate entirely to Glenn.

[14] In the affidavit that Gayle filed as evidence in her application, dated December 22, 2016, she explained that in or around August 2007, the testator told her that Glenn had taken him to his lawyer’s office to sign some paperwork, but that the testator “was unclear as to the nature of what he had been asked to sign”. Gayle then took the testator to consult with another lawyer, who told Gayle that “it appeared that [the testator] wanted to make a new will but that [this] could not be done at that time”.

[15] At para. 22 of her 2016 affidavit, Gayle stated further:

I did not become aware that my father had made a further will after the 2006 Will until January 2015 when I was provided with a copy of the Will dated July 24, 2007 … by the solicitor for the Estate [i.e., Ms. Woodruff].

[16] As part of their responding evidence on the application, the appellants filed an affidavit from Ms. Woodruff, dated March 22, 2017, in which she discussed the circumstances in which the testator had made the 2002, 2006, and 2007 Wills, and stated that in her opinion he “did not exhibit any impairment of testamentary capacity” when he made the 2007 Will. She did not say anything in this affidavit about her communications with either Gayle or Gayle’s lawyer after the testator’s death.

[17] The testator died on November 15, 2014. Gayle commenced her application challenging the 2007 Will more than two years later, on December 23, 2016.

[18] At the hearing of the application in July 2018, the appellants argued that Gayle’s application was statute-barred, submitting that the two-year limitation period in s. 4 of the Limitations Act began to run on the date of the testator’s death.

[19] In his reasons, the application judge concluded that Gayle’s application was not limitations-barred. He stated:

[W]hile the limitation period in respect of a will challenge is presumed to commence on the date of death of a testator for the purposes of s. 4 of the Act, the “discoverability principle” [in s. 5 of the Act] is not ousted if the presumption is rebutted.

[20] The application judge concluded:

In the present circumstances, Gayle had all the facts necessary to commence her application, on the grounds of both a lack of testamentary capacity and undue influence, before the Testator’s death, with the exception of knowledge of the existence and contents of the 2007 Will. While she had suspicions that a will had been executed in 2007, she was never able to confirm its existence nor was she made aware of its contents until January 2015, after the date of death. Accordingly, Gayle has established that, on the date of the Testator’s death, when the act on which the claim is based occurred, being the effectiveness of the 2007 Will, she did not have knowledge of the existence and contents of the 2007 Will which are essential elements of her application. Gayle has therefore rebutted the presumption in section 5(2) that she had knowledge of the matters referred to in section 5(1)(a) on the day on which the act or omission on which her claim is based occurred. Gayle did not discover the claim in this application until sometime in January 2015, with the result that the two-year limitation period under the Act did not begin to run until that time. [Emphasis added.]

(2) The Proposed Fresh Evidence

[21] The appellants now seek to adduce fresh evidence in the form of a new affidavit by Ms. Woodruff, sworn on April 23, 2019, which appends as an exhibit a letter, dated December 16, 2014, that Ms. Woodruff received from a lawyer named Edson Pease, who was acting for Gayle (the “Pease letter”).

[22] Mr. Pease indicated in his letter that he understood that Ms. Woodruff was acting for Glenn, and stated:

My client advises that when she recently called your office you advised that another Will was signed by [the testator] some time in 2007, which appoints two people as executors but not her … We assume it is your client [i.e., Glenn] and Michael. You also advised that you will be probating the [2007] Will, not the [2002] Will that was signed when [the testator] had full capacity. [2]

[23] Mr. Pease stated further:

I suspect that your client is the sole residuary beneficiary of the [2007] Will. My client also suspects as much because her father said on several occasions that he regretted signing a will after the [2002] Will and leaving his estate to your client only vs. to both of our clients.

[24] Mr. Pease concluded his letter by setting a deadline of January 5, 2015, for Ms. Woodruff to respond and provide the documentation he was requesting, [3] failing which “proceedings will be commenced forthwith in the Courts to set aside the [2007] Will”. In her responding material on the appellants’ fresh evidence motion, Gayle has adduced documents that indicate that Mr. Pease later extended this deadline to January 30, 2015.

[25] The appellants argue that the Pease letter contradicts para. 22 of Gayle’s 2016 affidavit, because it shows that she learned about the existence of the 2007 Will in a telephone conversation with Ms. Woodruff at some point before December 16, 2014. According to the appellants, the Pease letter reveals:

… that the evidence adduced by Gayle as set forth at paragraph 22 of her … Affidavit was deliberately false and misleading, and designed to deceive the Court.

[26] The appellants argue further that if the Pease letter had been before the application judge he would likely have reached a different conclusion on the limitations issue and would have dismissed Gayle’s application as statute-barred.

(3) Analysis

[27] The principles governing the admission of fresh evidence in civil appeals were summarized as follows by this court in St. Amand v. Tisi, 2018 ONCA 106, 89 R.P.R. (5th) 1, at para. 8:

Paragraph 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, permits this court to receive fresh evidence in a civil appeal. The test for admitting fresh evidence is well established. The party seeking to introduce the fresh evidence must show that the proposed evidence:

• Is credible;
• Could not have been obtained by reasonable diligence before trial or application; and
• If admitted, would likely be conclusive of an issue in the appeal.

The overriding criterion is that fresh evidence will be admitted only where it is in the interests of justice to do so. See: Center City Auto Sales Inc. v. Kalsatos, 2013 ONCA 373, at paras. 3-4; and Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.), at para. 9.

See also Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775.

[28] In my view, the fresh evidence in Ms. Woodruff’s 2019 affidavit bearing on the limitations issue, including the appended Pease letter, fails to meet the last two prongs of the test. I am not satisfied that the appellants acted with reasonable diligence when they failed to put this evidence before the application judge, nor am I persuaded that it would likely be conclusive of the limitations issue in this case.

(1) Reasonable Diligence

[29] The appellants contend that it was Gayle’s responsibility to put the Pease letter before the application judge. Citing the decision of D.M. Brown J. (as he then was) in Levy v. Fitzgerald, 2012 ONSC 2105, 27 C.P.C. (7th) 225, at para. 40, they argue that by not putting the Pease letter into evidence at her application, Gayle breached her duty to make full and frank disclosure of all material facts.

[30] In my view, the appellants reliance on Levy is misplaced. This decision summarizes the well-established “principles concerning the obligation to make full and frank disclosure on ex parte motions”: Levy, at para. 40. However, Gayle’s application challenging the validity of the 2007 Will was not heard ex parte, and the appellants have not provided any explanation as to why they did not put the Pease letter into evidence themselves.

[31] Importantly, the Pease letter was not exclusively within Gayle’s knowledge, power, or control. Indeed, the appellants filed an affidavit from the letter’s recipient, Ms. Woodruff, as part of their own evidence on the application. Neither she nor they have explained why she made no mention of the Pease letter in this affidavit.

[32] The appellants state that Ms. Woodruff never acted for the appellants in their capacities as trustees of the testator’s estate, and that their own lawyer on the application, Mr. Werbowyj, “was completely independent of Ms. Woodruff at all times”. In my view, this misses the point. Whether or not Ms. Woodruff ever represented the appellants in their role as estate trustees, she was their witness on the application, and the Pease letter was in her possession. In these circumstances, I am not satisfied that the appellants could not have adduced this evidence at the application through reasonable diligence.

[33] Moreover, in a responding affidavit that Gayle has filed on the appellants’ fresh evidence motion, sworn on November 29, 2019, she appends a letter from Mr. Werbowyj to Mr. Pease, dated January 23, 2015, in which Mr. Werbowyj states: “Your letter addressed to Ann Woodruff of Copeland McKenna has been forwarded to me for reply”. It thus appears that Mr. Werbowyj also had a copy of the Pease letter in his possession well before the litigation started.

[34] The appellants cite this court’s comments in Dean v. Mister Transmission (International) Limited, 2010 ONCA 443, 267 O.A.C. 67, at para. 17:

The due diligence test for the admission of fresh evidence is less significant when the evidence is in the hands of a party against whom it is tendered and there was an obligation on the party to disclose or to produce it. See: R. Clancy Heavy Equipment Sales Ltd. v. Joe Gourley Construction Ltd. (2001), A.B.C.A. 114 (Alta. C.A.).

[35] In my view, this principle does not assist the appellants. In Dean, the appellant was seeking to adduce a relevant document that it only obtained after summary judgment had been granted. Counsel for the appellant had previously requested a copy of this document from the respondent, whose counsel had undertaken to review it and disclose any parts of it that were relevant, but had then seemingly failed to do so. The appellant later obtained the document from a third party. In contrast, in the case at bar the appellants’ own counsel and their witness, Ms. Woodruff, both had copies of the Pease letter in their possession well before Gayle commenced her application. They cannot complain that she breached her obligation “to disclose or to produce it” to them. Unlike the situation in Dean, nothing stopped the appellants from putting the Pease letter into evidence on the application had they chosen to do so.

[36] I conclude that the appellants have not met their burden of demonstrating that they could not have put the Pease letter or Ms. Woodruff’s evidence bearing on the limitations issue into evidence on the application if they had exercised reasonable diligence.

[37] As Doherty J.A. noted in Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271, 398 D.L.R. (4th) 652, leave to appeal refused, [2016] S.C.C.A. No. 279, at para 49:

Finality concerns, especially important in civil proceedings, demand a restrictive approach to the admissibility of evidence on appeal. The due diligence inquiry, an important consideration in determining whether to admit fresh evidence on appeal, reflects the restrictive approach taken to the admission of fresh evidence on appeal.

See also Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 61.

[38] In the circumstances here, these concerns weigh heavily against admitting the proposed fresh evidence relating to the limitations issue.

(2) Would the Proposed Fresh Evidence Likely be Conclusive on the Limitations Issue?

[39] I am also satisfied that the Pease letter and Ms. Woodruff’s proposed fresh evidence regarding her communications with Gayle and her lawyer after the testator’s death would not be conclusive on the issue of whether Gayle’s application was limitations-barred.

[40] I agree that the Pease letter shows that as of December 16, 2014 Gayle already knew from her earlier telephone conversation with Ms. Woodruff that her father had made a new will in 2007, although she did not have full knowledge of the contents of this will and did not receive a copy of it until January 2015. It follows that her statement at para. 22 of her 2016 affidavit that she “did not become aware that [her] father had made a further will after the 2006 Will until January 2015” appears to be incorrect.

[41] I also accept that the application judge appears to have relied on Gayle’s affidavit evidence to conclude that “she did not have knowledge of the existence … of the 2007 Will” until January 2015, although he also stated that she “had suspicions that a will had been executed in 2007”.

[42] Although it is not entirely clear from the application judge’s reasons, I accept for the purpose of the fresh evidence motion that the Pease letter could undermine the application judge’s apparent conclusion that Gayle did not learn of the existence of the 2007 Will until January 2015. However, even if this factual conclusion can now be seen as erroneous in light of the Pease letter, I am not satisfied that any such error was “overriding”, in the sense of being so significant that it “goes to the very core of the outcome of the case”: Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 38, quoting South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46, leave to appeal refused, [2012] S.C.C.A. No. 349.

[43] In his reasons, the application judge described Gayle’s “knowledge of the existence and contents of the 2007 Will” as “essential elements of her application” (emphasis added).While the Pease letter may undermine the application judge’s finding that Gayle did not learn about the existence of the 2007 Will until January 2015, it does not undermine his further factual finding that this was when she first learned about its contents. Indeed, the Pease letter confirms that when the letter was written on December 16, 2014, Gayle and her lawyer still did not have a copy of the 2007 Will, even though they correctly suspected that it disinherited Gayle and left the residue of the testator’s estate entirely to Glenn. In her responding record on the appellants’ fresh evidence motion, Gayle also includes an affidavit from Mr. Pease to which he appends subsequent correspondence that provides further support for the application judge’s finding that Gayle did not receive a copy of the 2007 Will before January 2015.

[44] Under ss. 5(1)(a)(iv) and 5(1)(b) of the Limitations Act, the limitations clock only starts to run once the litigant first knew, or a reasonable person with the abilities and in the circumstances of the litigant ought to have known, “that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”. As Moldaver J. held in Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613, at para. 46, “the degree of knowledge needed to discover a claim is more than mere suspicion or speculation”.

[45] In my view, it was open to the application judge to conclude that it would have been premature for Gayle to have started legal proceedings to challenge the 2007 Will until she received a copy of it and could examine its terms. Even though Gayle appears to have suspected for many years that the document her father had told her about in or around August 2007 was a will, and seems to have also suspected that this new will disinherited her and left the bulk of the testator’s estate to Glenn, it was open to the application judge to find that it would not have been reasonable for Gayle to commence litigation to challenge the validity of a will that she had never seen, and that might not even exist.

[46] The appellants argue that we should conclude that Ms. Woodruff gave Gayle specific information about the terms of the 2007 Will during their telephone conversation that preceded the Pease letter. According to the appellants:

Ms. Woodruff, in fact, spoke with Gayle on the telephone in November 2014 and Gayle was advised that she was not an Executrix, there was a Forgiveness of Debt provision, whereby [the testator] essentially agreed to waive the repayment of debt, which Gayle otherwise owed him, and Ms. Woodruff emphasized to Gayle that there was no further reference to her (Gayle) in the 2007 Will.

[47] I would not give effect to this argument, for four main reasons.

[48] First, the appellants’ factual claims about what Ms. Woodruff told Gayle during their telephone conversation are unsupported by any evidence to this effect from Ms. Woodruff. In her 2019 affidavit, Ms. Woodruff states only that she recalls Gayle calling her “prior to December 16, 2014”, and that she told Gayle that the testator had signed “another Will” in 2007, and that Gayle was no longer an executor. Gayle’s evidence in her responding 2019 affidavit – uncontradicted, on the record before us – is that during their phone conversation Ms. Woodruff “refused to tell me anything beyond advising that I would receive correspondence with the portion of the will relevant to me in due course and that I was not an executor thereunder”. For its part, the Pease letter states that Ms. Woodruff told Gayle that she was not appointed as an executor in the 2007 Will, and that there was only one paragraph of the will that pertained to her. The Pease letter also states that Gayle “suspects that [this paragraph] is a forgiveness of debts clause”, but it does not state that Ms. Woodruff expressly told Gayle that the 2007 Will left her no bequest.

[49] Second, if the appellants were to seek to support their factual claims about what Ms. Woodruff told Gayle during their telephone conversation by presenting a new affidavit from Ms. Woodruff, they would run into the same problem that I have already discussed: namely, their inability to explain why they did not put this evidence before the application judge.

[50] Third, even if Ms. Woodruff did say things to Gayle during their telephone conversation that either informed Gayle or implied to her that she was not a beneficiary under the 2007 Will, I am not satisfied that this information would have been sufficient to allow Gayle to decide whether litigation to challenge the will’s validity was “appropriate”. I agree that after her conversation with Ms. Woodruff the onus was on Gayle to take reasonable steps to get a copy of the 2007 Will: see Grant Thornton, at para. 44. However, that is what she did when she and her ex-husband arranged for Mr. Pease to write to Ms. Woodruff and request a copy of the will and other documents, setting a January 2015 deadline.

[51] Fourth, Gayle’s uncontradicted evidence is that she only decided to challenge the validity of the 2007 Will after she obtained a copy of it and saw that the will not only disinherited her, but also would have eliminated her children’s contingent interest in the residue of the estate if Glenn had died before the testator. Gayle explains that seeing this clause was what convinced her that the testator must have lacked capacity when he made this will, since he “would never have been so preferential among his grandchildren had he had capacity at the time”. Indeed, as I will discuss further later, the application judge also considered this particular term of the 2007 Will to be “unusually spiteful”, and treated it as one of the “suspicious circumstances” that shifted the burden of proving testamentary capacity to the appellants, as the propounders of the 2007 Will.

[52] In my view, the application judge’s conclusion that the limitations clock only started to run after Gayle confirmed both the existence and the contents of the 2007 Will accords with the approach that was taken in the two cases that he considered in relation to this issue: Leibel v. Leibel, 2014 ONSC 4516, 2 E.T.R. (4th) 268, and Birtzu v. McCron, 2017 ONSC 1420, 24 E.T.R. (4th) 14.

[53] In Leibel, the motion judge’s conclusion that the applicant in that case “had the knowledge to commence a will challenge on or before July 31, 2011” was based in part on her finding of fact that the applicant had received copies of the disputed wills a few weeks earlier: see Leibel, at paras. 34, 39. Likewise, in Birtzu, at para. 50, the trial judge concluded that the applicants had sufficient knowledge to commence their claim once, knowing that the deceased suffered from dementia, they learned that the disputed will “denied them any gift”.

[54] Importantly, in Birtzu, as in the case at bar, a lawyer acting for one of the plaintiffs wrote a letter setting a deadline by which the defendant “was to turn over the estate assets to [the plaintiff] or face legal action”: see Birtzu, at para. 46. In concluding that the plaintiffs’ claim was statute-barred, the trial judge treated the limitations clock as starting to run on the deadline date that had been set in the plaintiff’s counsel’s letter, not on the date that this letter was sent: Birtzu, at para. 48. I agree that this approach makes sense, since if the defendant had capitulated to the plaintiff’s demands, there would have been no need for litigation.

[55] By parity of reasoning, I would find that the limitation clock in the case at bar only began to run as of the January 2015 deadline that Mr. Pease set in his letter to Ms. Woodruff, and that he later extended. [4] I do not agree with the appellants that if the application judge had known about the Pease letter, he would have found, contrary to Birtzu, that the limitations clock started running on December 16, 2014, which is when the letter was dated and presumably sent. Since Gayle commenced her application in December 2016, which was less than two years after both the deadline that was first established in the Pease letter, and the new extended deadline, on this calculation her application was not limitations-barred.

[56] In summary, I am satisfied that even if the Pease letter had been put before the application judge, it would not have changed his conclusion that the limitation clock did not start to run until January 2015, and that Gayle’s application was accordingly not statute-barred. It follows that if the Pease letter were admitted as fresh evidence, it would not “likely be conclusive” on the limitations issue: Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.), at p. 211; see also Palmer, at p. 775. Indeed, I view the Pease letter as lending additional support to the application judge’s conclusion that the application was not limitations-barred.

(3) Conclusions Regarding the Admissibility of the Pease Letter as Fresh Evidence and the Appellants’ First Ground of Appeal

[57] For both reasons discussed above, I would not admit the Pease letter and Ms. Woodruff’s 2019 affidavit evidence about her communications with Gayle and her lawyer as fresh evidence.

[58] The appellants’ first ground of appeal, as framed, was dependant on this fresh evidence being admitted. I am satisfied that the application judge’s reasons on the limitations issue do not disclose any reversible errors. It follows that I would not give effect to this ground of appeal.

E. Second Ground: The Application Judge’s Conclusion that the Testator Lacked Capacity When He Signed the 2007 Will

[59] The appellants’ second ground of appeal is that the application judge erred by finding that the testator did not have testamentary capacity when he executed his disputed 2007 Will. They also seek to support this ground of appeal with fresh evidence from Ms. Woodruff.

[60] Some additional background information is necessary to give context to this ground of appeal, and to the proposed fresh evidence that the appellants seek to adduce in support of it.

[61] The appellants maintain that the testator changed his will in 2007 to disinherit Gayle because he was angry with her over an incident two years earlier, in 2005, when she had allegedly put charges on his credit card without his permission. Gayle acknowledged that she had used her father’s credit card to make purchases relating to her business but maintained that she had done so with his knowledge and permission.

[62] It was established in evidence on the application that on September 27, 2005 Ms. Woodruff sent Gayle a letter demanding that she repay the testator $12,000, before the end of the year in weekly installments, for “expenses that [Gayle] incurred with his credit cards” (the “Demand Letter”). Ms. Woodruff did not mention this letter in her March 2017 affidavit, but she was cross-examined about the circumstances in which it was sent. Her evidence at that time was that before she sent the Demand Letter, she met with the testator to receive his instructions, but that she had no notes from this meeting.

[63] The application judge relied on Vout v. Hay, [1995] 2 S.C.R. 876, and Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.), for the principles governing the burden of proof in cases in which a will is attacked on the grounds of a lack of testamentary capacity. Gayle was not arguing that the 2007 Will had not been properly executed, but was contending that her father had lacked testamentary capacity when he signed the will. The application judge held in accordance with these authorities that Gayle bore the initial burden of introducing “evidence of suspicious circumstances” with respect to its preparation and signing. If she met this threshold burden, the burden of establishing testamentary capacity would shift back to the appellants, as the propounders of the will.

[64] The application judge concluded that Gayle had met her threshold burden, identifying “a number of suspicious circumstances that collectively suggest that the Testator lacked testamentary capacity when he executed the 2007 Will”. These included:

i) The testator had changed his will in 2006 and left Gayle his home, as well as an equal share of the residue of his estate. This undermined the appellants’ theory that when he disinherited her a year later, in 2007, he did so because he was still angry with her about the 2005 credit card charges;

ii) The testator had no other known reason for wanting to disinherit Gayle;

iii) The 2007 Will was “unusually spiteful” in another respect in that it also eliminated Gayle’s children’s contingent right to inherit a share of the residue of the estate if Glenn predeceased the testator, even though the testator “had an ongoing relationship with Gayle’s children”, and they “had nothing to do with the loans to her”;

iv) The application judge found that there was “reason to doubt that the Demand Letter represented the Testator’s state of mind in September 2005”;

v) The application judge accepted the evidence from Gayle and her former husband that shortly after the testator signed the 2007 Will, he had “called Gayle expressing concern that he had signed a document, the contents of which he was unaware”; and

vi) The application judge accepted the evidence that in May 2008 the testator had given Gayle the deed to his house, “in the belief that this would protect her entitlement to the Home if any other document that he had signed, including a will, would provide otherwise”.

[65] The application judge’s finding that there were “suspicious circumstances” shifted the burden back to the appellants to prove on a balance of probabilities that the testator had had the necessary testamentary capacity when he signed the 2007 Will.

[66] The application judge held that the appellants had not met this burden, for two main reasons. First, he accepted the medical evidence that “suggest[ed] a real possibility that the Testator experienced an episode of dementia at the time he signed the 2007 Will that excluded testamentary capacity”. Second, the application judge concluded:

The evidence adduced pertaining to the “suspicious circumstances” also supports this conclusion with considerable force. … [T]he overall impression based on these circumstances is that the content of the [2007] Will is sufficiently inexplicable and out of character for the Testator, based on his previous wills and his relationship with both his children, that it is more probable than not that the Testator was in a confused state and therefore lacked testamentary capacity when he executed the 2007 Will.

(1) The Proposed Fresh Evidence

[67] As I have already noted, as part of their evidence on the application the appellants filed an affidavit from Ms. Woodruff that she swore in March 2017. She was then cross-examined on this affidavit. The appellants now seek to adduce as fresh evidence a further affidavit from Ms. Woodruff that she swore in April 2019, several months after the application judge’s decision.

[68] I have already discussed the proposed new evidence from Ms. Woodruff that bears on the limitations issue. The remainder of her 2019 affidavit deals primarily with her preparation of the 2005 Demand Letter and the testator’s 2007 Will. Her affidavit also indirectly challenges the application judge’s conclusion that the testator’s decision to disinherit Gayle was “inexplicable and out of character”, by portraying Gayle in a negative light and by suggesting that the testator seemed to have never much cared for her, and to have always preferred his son Glenn.

[69] As mentioned above, Ms. Woodruff did not address the Demand Letter in her 2017 affidavit, although she was cross-examined about it. Her evidence in cross-examination was that before she prepared and sent this letter, she met with the testator to obtain his instructions, but that she had no notes from this meeting. In her 2019 affidavit Ms. Woodruff now sets out further details of this meeting, and also appends what she says are copies of her notes from it.

[70] Ms. Woodruff’s 2019 affidavit also addresses the circumstances in which she prepared the 2007 Will and expresses her opinion that the testator showed no signs of testamentary incapacity at the time. These are both matters that were also addressed in her 2017 affidavit.

[71] The appellants argue that:

Ms. Woodruff’s 2019 Affidavit, based on her direct information, provides further insight into the preparation of the September 27, 2005 letter to Gayle and further clarifies [the testator’s] motive for the letter. Ms. Woodruff’s 2019 Affidavit expands upon and further reinforces her belief as to the fact that at the time the Demand Letter was prepared, as well as at the time of the preparation of [t]he 2007 Will, [the testator] was clear, lucid, and certainly had testamentary capacity.

[72] While I accept that Ms. Woodruff is a credible witness, I do not agree with the appellants that she is “unbiased”. To the contrary, her 2019 affidavit shows her to be highly partisan: it is replete with argument and statements of Ms. Woodruff’s opinion about the parties’ legal positions and how she thinks the application should have been decided. None of this opinion evidence was admissible, and it ought not to have been included: see r. 4.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[73] However, I am of the view that this proposed fresh evidence from Ms. Woodruff fails the second and third prong of the test for admitting fresh evidence in civil appeals, summarized above. That is, I am not satisfied that the appellants acted with reasonable diligence when they failed to adduce this evidence on the application, nor am I persuaded that it would likely be conclusive of an issue on appeal.

(1) Reasonable Diligence

[74] As I have already noted, an important circumstance weighing against the admission of fresh evidence in a civil appeal will be if the evidence could by reasonable diligence have been adduced in the court below.

[75] The appellants have not provided any explanation as to why the additional evidence in Ms. Woodruff’s April 2019 affidavit concerning both the 2005 Demand Letter and the 2007 Will was not put before the application judge.

[76] In my view, the interest of finality weighs heavily against admitting this evidence on appeal. An appeal is not meant to give unsuccessful litigants the chance for a do-over where they can present their case differently. As discussed above, this court has noted that finality concerns are “especially important in civil proceedings” and “demand a restrictive approach to the admissibility of evidence on appeal”: Iroquois Falls, at para. 49; Stekar v. Wilcox, 2017 ONCA 1010, 32 E.T.R. (4th) 199, at para. 27; and St. Amand, at para. 10.

(2) Impact on an Issue in the Appeal

[77] I am also not satisfied that the proposed fresh evidence, if admitted, “would likely be conclusive of an issue in the appeal”: St. Amand, at para. 8.

[78] The application judge was skeptical about the provenance of the Demand Letter, in part because Ms. Woodruff had not mentioned anything about it in her 2017 affidavit, and had then testified in cross-examination that she had no notes of her meeting with the testator when she obtained his instructions to draft the letter. Indeed, the application judge questioned whether Ms. Woodruff had even written the letter herself, noting that it misspelled the testator’s surname.

[79] I accept that the information that Ms. Woodruff has now provided in her 2019 affidavit might have addressed these concerns. Ms. Woodruff now purports to “clearly recall” meeting the testator in her office to obtain his instructions and appends what she says are her notes from this meeting. Indeed, since her handwritten notes also misspell the testator’s name, if these notes had been in evidence before the application judge they might have eased his concerns arising from the testator’s name being misspelled in the Demand Letter.

[80] However, the circumstances surrounding the preparation and sending of the Demand Letter were not the central issue in this case. What ultimately mattered was whether the testator was capable when he signed the 2007 Will some two years later.

[81] Although there was evidence that the testator had been diagnosed with “mild dementia” in September 2005, nobody was suggesting that it was proved that he had lacked testamentary capacity before 2007. As the application judge noted in his reasons:

Gayle does not suggest that the Testator lacked testamentary capacity at all times in 2007. Instead, she suggests that, by the summer of 2007 if not before, his dementia had reached the state in which he had “good days” and “bad days”. She suggests that he executed the 2007 Will on one of the “bad days”.

For their part, the appellants maintained that the testator had remained “mentally sharp” until approximately 2012.

[82] The proposed fresh evidence in Ms. Woodruff’s 2019 affidavit about the circumstances in which the testator signed the 2007 Will largely covers the same ground as her 2017 affidavit and the transcript of her cross-examination on this affidavit. As the application judge noted in his reasons, Ms. Woodruff’s evidence was that she had “interviewed [the testator] alone” and been “fully satisfied that he was giving me his clear instruction and that he did not exhibit any impairment of testamentary capacity”.

[83] In substance, all that Ms. Woodruff’s 2019 affidavit does is expand on her confidence in the correctness of her opinion. She cites her history “as a very experienced practitioner who has prepared thousands of wills”, and states that there is “no doubt in [her] mind” about the testator’s capacity when he signed the 2007 Will. In my view, her evidence in the 2019 affidavit is not materially different from the evidence that was put before the application judge.

[84] That said, I recognize that one of the application judge’s stated reasons for finding Ms. Woodruff’s evidence regarding the 2007 Will unreliable was his concerns about the circumstances surrounding the preparation and delivery of the Demand Letter. Consequently, I accept that Ms. Woodruff’s new evidence about the Demand Letter could be seen as having some indirect bearing on the application judge’s assessment of her evidence about the testator’s testamentary capacity when he signed the 2007 Will.

[85] However, I see no realistic prospect that the new evidence about the Demand Letter would have affected the result, when this evidence is considered alongside the evidence about the 2007 Will that was already before the application judge.

[86] The application judge gave five main reasons for finding that the testator lacked testamentary capacity when he signed the 2007 Will. Ms. Woodruff’s new affidavit would have no effect on most of the evidence that he relied on.

[87] First, Gayle tendered affidavit evidence from a geriatric specialist, Dr. Devaraj, who had been the testator’s treating physician between 2002 and 2008. The appellants relied principally on the medical records of the various hospitals where the testator received medical attention, including the notes made by Dr. Varga, who had seen the testator in hospital between 2008 and 2012. The application judge preferred Dr. Devaraj’s evidence, in part because it was “more closely linked in time to the events of 2007 and 2008”, and in part because his evidence, unlike Dr. Varga’s evidence, had been tested through cross-examination.

[88] Second, as I have already discussed, the application judge concluded that “the evidence does not support the [appellants’] position that the loans to Gayle [in 2005] explain the provisions of the 2007 Will”. In particular, he viewed this theory as inconsistent with the testator’s decision to change his will in 2006 to leave Gayle his house as well as an equal share of the residue of his estate, and his subsequent act in May 2008 of giving her the deed to his house, which the application judge interpreted as an unsuccessful effort by the testator to transfer title to Gayle.

[89] Third, the application judge accepted the evidence of Gayle and her former husband that shortly after the testator signed the 2007 Will he told them both that he did not understand the document that he had signed.

[90] Fourth, the application judge rejected the appellants’ evidence that the testator remained “mentally sharp” until approximately 2012, noting that this evidence was “inconsistent with the medical observations of both Dr. Devaraj and Dr. Varga”, as well as with Glenn’s own statements to hospital staff in July 2008, when the testator visited the hospital in a confused state, recorded in the hospital notes as: “Son reports confusion x 2 weeks”. The application judge also noted that both appellants stood to benefit financially if the 2007 Will were upheld.

[91] The only aspect of the application judge’s reasons that would potentially be affected by the proposed fresh evidence is his assessment of the reliability of Ms. Woodruff’s evidence about the testator’s condition when he signed the 2007 Will. However, the proposed fresh evidence only affects one of the application judge’s two stated reservations about Ms. Woodruff’s evidence, namely, his “concerns regarding the circumstances pertaining to the delivery of the Demand Letter”. His other concern – Ms. Woodruff’s failure to make any contemporaneous notes of her observations of the testator’s condition when she met with him in 2007 – remain entirely unabated.

[92] Even if the application judge had taken a somewhat less dim view of Ms. Woodruff’s reliability as a witness, I am satisfied from his reasons as a whole that there is no realistic possibility that he would have found that the appellants had met their burden of establishing on a balance of probabilities the testator’s testamentary capacity when he signed the 2007 Will.

[93] To the extent that the fresh evidence might show that the application judge made errors of fact, I am satisfied that any such errors were not “overriding”. As this court explained in Waxman v. Waxman (2004), 186 O.A.C. 201 (C.A.), at para. 297, leave to appeal refused, [2004] S.C.C.A. No. 291:

An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, [1996] 1 S.C.R. 254 at 281.

[94] In my view, the appellants have not met this onerous burden, considering the evidence as a whole and the application judge’s reasons in their entirety.

(3) Summary Regarding the Admissibility of the Proposed Fresh Evidence

[95] In summary, I am not prepared to admit the appellants’ proposed fresh evidence. The interests of finality weigh strongly against its admission, given the appellants’ complete failure to explain why this evidence, all of which was or could easily have been known to them at the time of the application, was not put before the application judge. I also see no realistic prospect that the proposed fresh evidence would have likely been conclusive of an issue on appeal.

(2) The Merits of the Appellants’ Second Ground of Appeal

[96] I must go on to consider the merits of the appellants’ second ground of appeal on the basis of the evidence that was before the application judge.

[97] The appellants seek to challenge the application judge’s findings of fact and his assessment of the evidence. They take issue with his conclusion that there were suspicious circumstances, which shifted the burden of proving testamentary capacity to them, and also argue that he erred by not finding that they had met this burden. Specifically, they contend that the application judge placed insufficient weight on their own evidence, and the evidence of Ms. Woodruff.

[98] In essence, the appellants seek to have us retry the case. I would decline to do so. As this court explained in Waxman, at paras. 291-92:

[A]ppellate courts must defer to all findings of fact made at trial unless the court is satisfied that the finding was the product of a “palpable and overriding” error. …

The “palpable and overriding” standard demands strong appellate deference to findings of fact made at trial.

[99] The application judge carefully considered the evidence that was before him, made findings of fact, and fully explained how and why he arrived at his factual conclusions. I see no basis for interfering with his findings of fact, or the conclusions he drew based on these findings.

[100] It follows that I would not give effect to the appellants’ second ground of appeal.

F. Disposition

[101] In the result, I would dismiss both the appellants’ motion to adduce fresh evidence and their appeal from the application judge’s order.

[102] This makes it unnecessary to address or consider Gayle’s own motion to adduce fresh evidence in support of the application judge’s finding that the 2007 Will was invalid.

[103] In her main factum, the respondent seeks various ancillary orders in addition to an order dismissing the appeal. Specifically, she requests orders:

1. Confirming that the 2006 Will is the testator’s true last will and testament;
2. Setting aside the Certificate of Appointment of Estate Trustee dated March 19, 2015; and
3. Removing one or both of the appellants as estate trustees and appointing the respondent in their place.

[104] In my view, the first order sought is unnecessary. It duplicates a term of the order made by the application judge, which would remain effective if the appellants’ appeal is dismissed.

[105] Although Gayle sought an order setting aside the March 19, 2015 certificate of appointment in her Notice of Application, the application judge did not include this relief in his order. However, since this certificate of appointment appears to have been granted in respect of the 2007 Will, I am of the view that it follows from the application judge’s order setting aside the 2007 Will that the certificate of appointment pursuant to the 2007 Will should also be set aside. This court has authority under s. 134(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to “make any order … that ought to or could have been made by the court … appealed from”. In my view, it would be appropriate in the circumstances here to order that the Certificate of Appointment dated March 19, 2015 be set aside.

[106] Since the application judge made an order declaring the 2006 Will to be the testator’s true last will and testament, if the certificate of appointment in relation to the 2007 Will were set aside, the appellants and the respondent, who are all named as estate trustees in the 2006 Will, would be free to apply for a certificate of appointment pursuant to the 2006 Will.

[107] Moreover, if the March 19, 2015 certificate of appointment were set aside, this would make it unnecessary to consider or address the respondent’s request for an order removing one or both of the appellants as estate trustees. The question of who should be appointed to manage the estate under the 2006 Will would be a matter to be determined by the court of first instance, when an application for appointment of an estate trustee or trustees is properly brought.

[108] With respect to costs, as the successful party, the respondent is entitled to her costs of the appeal, including the costs of an unsuccessful mediation pending the hearing of the appeal. The respondent is seemingly seeking costs in the amount of $83,620 for fees and $5,205.88 for disbursements, including HST.

[109] While the appellants’ costs submissions should have been filed by the extended deadline of February 5, 2024, we have not received them. Given the amount and scale of the costs sought by the respondent, I am of the view that the appellants should be given one final opportunity to provide written costs submissions in response to the respondent’s costs submissions. Accordingly, I would grant the appellants one final extension to provide their written costs submissions within seven days of the release of these reasons, failing which, the respondent’s entitlement to costs shall be determined.

Released: February 20, 2024 “L.B.R.” “J. Dawe J.A.” “I agree. L.B. Roberts J.A.” “I agree. Sossin J.A.”

[1] I refer to the appellants and the respondent by their first names for clarity. I mean no disrespect in doing so.

[2] Mr. Pease appears to have been unaware of the existence of the 2006 Will, and to have mistakenly believed that the testator had only made wills in 2002 and 2007.

[3] Mr. Pease requested a copy of: the 2002 Will; the 2007 Will; “the list of original assets”; the Application for a Certificate of Appointment; and the most recent Power of Attorney for Property.

[4] Mr. Pease initially set a deadline of January 5, 2015, but then extended this deadline to the end of January 2015.