COURT FILE NO.: CV-12-1014 DATE: 20160722 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: ANDREA TAYLOR-REID Plaintiff – and – SHIRLEY CECILIA TAYLOR personally and as THE ESTATE TRUSTEE OF THE ESTATE OF CHARLES FULLERTON TAYLOR, deceased, and KENNETH TAYLOR Defendants (Moving Party)

Counsel: Michael A. McKee, for the Plaintiff Ellen A. Brohm, for the Defendants

HEARD: April 27, 2016

REASONS FOR DECISION DiTOMASO J.

INTRODUCTION

[1] This is a motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure brought by the Defendants Shirley Cecilia Taylor personally and as the Estate Trustee of the Estate of Charles Fullerton Taylor, deceased for disclosing no genuine issue requiring a trial. In the alternative, an order is sought dismissing the action for the Plaintiff’s delay in moving the action forward. In the further alternative, an order is sought requiring the Plaintiff to attend an examination for discovery and to adhere to a timetable imposed by the court.

OVERVIEW

The Parties

[2] The claim arises from the death of Charles Fullerton Taylor (Mr. Taylor).

[3] The plaintiff, Andrea Taylor-Reid (“Andrea”) is the daughter of Mr. Taylor.

[4] The defendant Kenneth Taylor is the son of Mr. Taylor and brother to Andrea. The action has been discontinued against him.

[5] The defendant Shirley Taylor (“Shirley”) is Mr. Taylor’s second wife. They were married on March 3, 1999 and enjoyed a twelve and a half year marriage.

History of Proceeding

[6] On September 12, 2013, Andrea, daughter of deceased, initiated these proceedings by issuing the original Statement of Claim. The Claim seeks a declaration that the Last Will and Testament of Mr. Taylor and certain beneficiary designations all benefitting his wife, Shirley, be set aside.

[7] On or around December 21, 2012, Shirley, served a Statement of Defence.

[8] On or around November 26, 2013, Andrea served a Notice of Intention to Act in Person. Andrea is now represented by counsel.

[9] On or around August 12, 2014, Andrea served a Notice of Discontinuance for the action as against the Defendant, Kenneth Taylor, only.

[10] On or around February 9, 2014, Andrea served an Amended Statement of Claim. Andrea in her Amended Statement of Claim continues to seek a declaration that the Last Will and Testament of Mr. Taylor and certain beneficiary designations all benefitting Shirley be set aside. Added to the Claim was a request for compensation to Andrea for services she claims to have provided to Mr. Taylor during his lifetime.

[11] On or around February 18, 2014, Shirley served an Amended Statement of Defence.

[12] Andrea served her Affidavit of Documents on or around May 30, 2014.

[13] Shirley served her Affidavit of Documents on or around September 26, 2014.

[14] Shirley has attempted to arrange Examinations for Discovery since the date the Affidavit of Documents were exchanged.

[15] Andrea has refused to attend Examinations for various reasons, being that she had arranged counsel by lawyers who were either suspended or disbarred from the practice of law or that she was ill.

[16] Shirley obtained a Certificate of Non-Attendance for a mutually agreed Examination for Discovery date of April 16, 2015.

[17] There has been no communication between the parties since then.

Undue Influence

[18] Andrea seeks a declaration that the Last Will and Testament of Mr. Taylor is invalid. In addition, she seeks that the transfer of the beneficial interest of Mr. Taylor's RRIF, TFSA and various investments to Shirley be set aside. In addition, Andrea seeks compensation for the services alleged to have been provided by her to Mr. Taylor prior to his passing.

[19] With respect to the declaration regarding the Will and investments, Andrea claims that these changes were made as a result of Shirley unduly influencing Mr. Taylor.

[20] In support of the allegation of undue influence, Andrea relies solely on unsubstantiated accusations that Shirley, either verbally or implicitly, threatened to leave Mr. Taylor and/or divorce Mr. Taylor if he did not give Mrs. Taylor half interest in the home and bank accounts.

[21] Even if this were true, which Shirley vehemently denies, she alleges it would not constitute influence which is "undue".

[22] Shirley submits there was no undue influence over Mr. Taylor and there is no evidence available to support same.

[23] Mr. Taylor sought and obtained legal advice from his long time legal counsel Michael Reed and instructed the preparation of and executed of the Will voluntarily because of his relationship with Shirley.

Compensation

[24] In her Amended Statement of Claim, served on or around February 9, 2014, Andrea claims for compensation for services alleged to have been performed. Shirley denies there was any agreement for compensation.

[25] Firstly, Shirley submits Andrea did not provide such services because the Community Care Access Centre organized for home care to be brought into her home to do the work.

[26] Secondly, if any services were provided, they were paid for by Mr. Taylor at a rate of $2,000.00 per month.

[27] Thirdly, if Andrea suffered any injuries, which is denied, they were as a result of pre-existing health conditions and not from providing care to Mr. Taylor.

[28] Finally, Shirley submits Andrea is statute barred from commencing such a claim pursuant to section 4 of the Limitations Act, 2001, 2001 S.O. c.24 Sch. B. Mr. Taylor died on September 22, 2011 and the Amended Statement of Claim was not served until February 9, 2014.

POSITION OF THE PARTIES

Position of the Moving Party Shirley Cecilia Taylor personally and as the Estate Trustee of The Estate of Charles Fullerton Taylor, Deceased

[29] On behalf of the moving party, it is submitted that Andrea’s claim does not disclose a genuine issue requiring a trial. There are two claims advanced by Andrea. The first is that Shirley unduly influenced the deceased to execute the Last Will and Testament and bank account beneficiary designation forms in her favour. The second is for damages related to services alleged to have been performed by Andrea to the benefit of the deceased, Mr. Taylor.

[30] Andrea alleges that there are suspicious circumstances surrounding the execution of Mr. Taylor’s Last Will and Testament dated February 18, 2011. Shirley submits that the principle of suspicious circumstances does not apply in this case. Suspicious circumstances only becomes relevant for a court to consider when a party is challenging the Last Will and Testament on the basis of knowledge and approval or on the basis of testamentary capacity. It does not apply to the challenge of the Last Will and Testament on the basis of undue influence/coercion. Shirley takes the position that there is no presumption of undue influence applied in testamentary undue influence cases.

[31] Further, Andrea has the burden of establishing the existence of undue influence. She must prove that testamentary undue influence must amount to coercion forcing the Will-maker to make a Will containing gifts that he or she would otherwise not make. Further, Andrea must prove causation in addition to undue influence. Andrea must also prove that the coercion itself must have caused the testamentary gift which is the subject of the challenge. It is submitted that Andrea cannot satisfy her onus to establish undue influence as she cannot prove coercion and she cannot prove causation.

[32] As for Andrea’s claim for compensation, Shirley submits that there is no agreement oral or otherwise between Andrea and Mr. Taylor for services and compensation.

[33] Further, Andrea’s claims of undue influence and compensation lack support by way of corroborative evidence as contemplated by s. 13 of the Evidence Act. In addition, it is submitted that even if Andrea could establish undue influence and a claim for compensation, her claims are barred by operation of s. 4 of the Limitations Act. In the alternative, Shirley submits that Andrea’s claim ought to be dismissed for delay. In the further alternative, Shirley submits that if Andrea’s action is not dismissed, a timetable ought to be imposed.

Position of the Plaintiff Andrea Taylor-Reid

[34] Andrea submits that a timetable ought to be imposed. She submits that this is not an appropriate case where a motion for summary judgment ought to succeed. Rather, she maintains that there are genuine issues for trial i.e. undue influence and compensation. Andrea submits that there are different versions relating to these issues which require credibility findings best left to a trial judge.

[35] On behalf of Andrea, it is submitted that the motion for summary judgment and, in the alternative, motion for an order dismissing the action, be dismissed.

ISSUES

[36] The issues to be determined on this motion as follows:

a) Does the claim disclose a genuine issue requiring a trial? b) In the alternative, should the claim be dismissed for delay? c) In the further alternative, should a timetable be imposed on Andrea?

ANALYSIS

Legal Principles

Summary Judgment Rules

[37] Rule 20 and subrules of the Rules of Civil Procedure provide the applicable rules for summary judgment as follows:

Rules 20.01(3) of the Rules of Civil Procedure provide that:

(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[38] Rule 20.04(2) of the Rules provides that:

(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.

[39] Rule 20.04(2.1) and (2.2) of the Rules provides that:

Powers

(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)

(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.

Hryniak Roadmap

[40] The Supreme Court of Canada set out the roadmap/approach to be taken when deciding a summary judgment motion pursuant to Rule 20.04:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [1]

[41] Shirley submits that the evidence made available to the court through this Motion for Summary Judgment provides the Court with enough evidence required to fairly and justly adjudicate the dispute. In which case, Summary Judgment must be granted and the claim dismissed. Doing so would serve the goals of timeliness, affordability and proportionality. [2]

Findings

[42] I find there is no genuine issue requiring a trial. The summary judgment process herein provides this court with the evidence required to fairly and justly adjudicate the dispute in a timely, affordable and proportionate way under Rule 20.04(2)(a).

[43] On the basis of the evidentiary record before me, I have made this determination.

[44] I have read the affidavit of Shirley Taylor sworn January 21, 2016 together with exhibits, the affidavit of Michael Reed sworn March 22, 2016 and the affidavit of Andrea Taylor-Reid sworn April 22, 2016.

[45] I find the preponderance of the evidence weighs in favour of the moving party. The evidence of Shirley and Michael Reed, long-time solicitor of Mr. Taylor are cogent and compelling. Three of these affidavits and exhibits provide a fulsome contextual matrix from which factual determinations can be made on this motion for summary judgment motion including an evaluation of credibility of the various deponents. For reasons to follow, I prefer the evidence of Shirley and Mr. Reed to the evidence of Andrea both in respect of factual matters as well as on matters of credibility.

[46] On the basis of the evidentiary record before me, I make the following findings.

[47] Shirley and Mr. Taylor were married on March 3, 1999 and enjoyed a twelve and half year marriage. Prior to their marriage, they entered into a Marriage Agreement having each obtained independent legal advice.

[48] On March 5, 1999, Mr. Taylor transfer joint ownership of his property to Shirley. Shirley and Mr. Taylor had a brief separation in 2002. They entered into a Separation Agreement and, upon reconciling, subsequently executed a Termination of Separation Agreement. They resumed living together as husband and wife. I accept that apart from this brief period of separation, Mr. Taylor and Shirley enjoyed a happy marriage. At paragraph 17 of her affidavit Shirley deposes:

17. Besides this brief period of separation, Charles and I enjoyed a happy marriage. Charles was kind and generous to me. I never wanted for anything but Charles would have given me whatever I needed. He was a gentleman and always took care of me.

[49] By contrast, Mr. Taylor and Andrea always had a challenging relationship. For example, in August 2004, Andrea made false allegations of sexual abuse against Mr. Taylor. The police conducted an investigation while Andrea retained a lawyer to request negotiations before she commenced a civil suit for damages from Mr. Taylor. Mr. Reed first met Andrea when she began making these allegations of sexual abuse against Mr. Taylor. Andrea later acknowledged that the allegations of sexual abuse were fabricated.

[50] During the period of the sexual abuse allegations (approximately one month after these allegations were commenced by Andrea), Mr. Taylor executed a new Will dated September 10, 2004. This Will left his estate residue to Shirley entirely. The Will indicated, if Shirley predeceased him, the residue would be paid to Shirley’s grandchildren. Nothing was left to Andrea under this Will.

[51] In his affidavit, Michael Reed at paragraph 9 deposes:

Mr. Taylor did not want either of his children (the plaintiff or Kenneth Taylor) to receive a portion of his Estate residue. It is my opinion that Mr. Taylor was not under any undue influence by Mrs. Taylor to execute this Will. A copy of this Will is already attached to Mrs. Taylor’s affidavit at exhibit 7.

[52] Approximately five months after the last correspondence regarding the sexual abuse, and specifically, on April 18, 2005, Andrea wrote to Mr. Taylor’s lawyer, Michael Reed demanding an interest in real property that belonged to Mr. Taylor. Mr. Taylor owned a couple of cottage properties and had been planning to sell them.

[53] Approximately 14 months later, in June 2006, Mr. Taylor added Shirley to his TD bank accounts as a joint owner and beneficiary.

First Hospital Admission

[54] During the Summer 2010, Mr. Taylor was admitted to Hospital for gall bladder surgery. After the surgery, Mr. Taylor suffered from extreme pneumonia and neuropathy causing a loss of leg function.

[55] By August 2010, Mr. Taylor was ready to be discharged from Hospital but he still required convalescent care. Shirley and Mr. Taylor’s matrimonial home was not suitable for the convalescent care that Mr. Taylor would require. He and Shirley were planning for Mr. Taylor to convalesce at a long-term care facility in Barrie: the Mulcaster Mews. Andrea, however, insisted that Mr. Taylor convalesce at her home in Schomberg. By this time, it had been approximately six years since the allegation of sexual assault and Shirley and Mr. Taylor reluctantly agreed.

[56] Andrea charged Mr. Taylor $2,000 for him to convalesce at her home. In addition, she and her husband, Kerry Reid, were also paid additionally with cheques from Mr. Taylor’s CIBC bank account.

[57] When Mr. Taylor was in Andrea’s home, she interfered with the ongoing relationship between Shirley and Mr. Taylor. Andrea would not allow the two to have private telephone conversations. Andrea eventually blocked Shirley’s telephone number thereby preventing her calls. Andrea told Mr. Taylor that Shirley did not care about him anymore and that Shirley had a boyfriend. At the same time, Andrea would make hostile telephone calls to Shirley demanding that Shirley now pay for household expenses and that Shirley must sign a Separation Agreement. Andrea also made threats of sending Shirley to jail. While in her home, and specifically on October 22, 2010, Andrea insisted that Mr. Taylor meet with his lawyer, Michael Reed, to prepare a new Will and leave his Estate residue to Andrea and Shirley in equal shares. This would replace the 2004 Will that left everything to Shirley or her grandchildren if she predeceased.

[58] Mr. Reed drafted the Will and mailed the draft version to Mr. Taylor with a cover letter noting Mr. Reed’s concerns regarding the validity of the Will (see affidavit of S. Taylor paragraph 29, exhibit 14 and affidavit of M. Reed, paragraph 15).

[59] While Mr. Reed’s notes indicate that Mr. Taylor expressed to him that Mr. Taylor was acting on his own, it was Mr. Reed’s opinion that Mr. Taylor was being influenced by Andrea to revise the Will provisions to leave half to her.

[60] The Will not was not executed with Mr. Reed present. Instead, it was executed with Andrea and Andrea’s friends as witnesses on December 3, 2010. At the same time, Andrea had Mr. Taylor sign a statement containing the reasons for not naming Kenneth Taylor as a beneficiary in his Will. On the same day, Andrea contacted Mr. Taylor’s bank to obtain information regarding Mr. Taylor’s bank accounts.

[61] On December 7, 2010, Andrea began incessantly emailing Mr. Reed regarding Mr. Taylor’s affairs and to criticize Shirley and to make false allegations of elder abuse. These emails demonstrate that Mr. Taylor cared for and thought highly of Shirley. Specifically, these emails indicate that Mr. Taylor thought of Shirley as the “perfect mate”.

[62] On December 16, 2010, Andrea had Mr. Taylor sign documents that named her as the 100 percent beneficiary of Mr. Taylor’s two bank accounts at the Toronto-Dominion bank.

Second Hospital Admission

[63] On January 16, 2011, Mr. Taylor was admitted to Hospital in Newmarket. After his admission to Hospital this second time, Andrea immediately began steps to have Mr. Taylor and Shirley legally separated, to take over Mr. Taylor’s Attorney for Property, to make fabricated allegations of elder abuse, to involve the police and to obtain a Peace Bond that would have prevented Shirley from visiting Mr. Taylor in the hospital.

[64] Andrea contacted a lawyer, Margaret Black, and Mr. Reed to initiate divorce proceedings, to prepare a new Power of Attorney documents for Mr. Taylor to sign (appointing Andrea) and to obtain a copy of the Marriage Agreement signed by Mr. Taylor and Shirley.

[65] Andrea had Mr. Taylor sign new Power of Attorney documents the same day (January 18, 2011). These documents were signed without Mr. Taylor having received any legal advice and without Mr. Reed present. Throughout all of this, Mr. Taylor still demonstrated his desire to be with Shirley and his desire to speak to his lawyer, Mr. Reed. Despite this, Andrea tried to use the Power of Attorney document to redirect Mr. Taylor’s income deposits to a new bank account. Mr. Taylor then notified the hospital not to release his medical information to Andrea.

[66] On January 31, 2011, Mr. Taylor executed a new Power of Attorney document appointing Shirley and Kenneth Taylor as joint Attorneys for Property. This document was prepared by and witnessed by a lawyer. It was not Mr. Reed as Mr. Reed was on holidays at the time.

[67] On February 2, 2011, Mr. Taylor was discharged from the hospital and transferred to Mulcaster Mews, a long-term care facility close to Shirley.

[68] On February 3, 2011, Mr. Taylor had the beneficiary designation on his Toronto-Dominion bank account number 48LH1ZT reverted back to Shirley.

[69] On February 3, 2011, Andrea contacted the Office of the Public Guardian and Trustee to make further allegations against Shirley.

[70] On February 4, 2011, Andrea delivered Mr. Taylor’s personal belongings, which had been at her home from Mr. Taylor’s convalescence to the Mulcaster Mews facility. To do so, she charged Mr. Taylor $200.

[71] On February 17, 2011, Mr. Taylor met with Mr. Reed at Mulcaster Mews. Mr. Reed had no concerns regarding Mr. Taylor’s capacity and had no concerns regarding any undue influence over Mr. Taylor by Shirley. Mr. Reed advised Andrea of this in an email of the same day. This email is contained in Shirley’s affidavit at exhibit 42.

[72] Further, Mr. Reed deposes in his affidavit the following at paragraph 21:

21. Upon my return, and specifically on February 17, 2011, I met with Mr. Taylor at Mulcaster Mews a long-term care facility in Barrie. Mrs. Taylor was not present at these meetings and I was able to have private discussions with Mr. Taylor. Mr. Taylor expressed to me that he wanted to be at the Mulcaster Mews so that he could be close to Mrs. Taylor and that he wanted me to draft a new Will for him to sign that would name Mrs. Taylor as the sole beneficiary. We also discussed the fact that he had signed a Power of Attorney with another lawyer during the period that I was out of the office. That document had appointed Mrs. Taylor and Kenneth Taylor (his son) as joint Attorneys for Property. Mr. Taylor also advised me that he had been visited by two police officers who were investigating allegations that he was a victim of elder abuse by Mrs. Taylor. Mr. Taylor assured me that he was not a victim of elder abuse by Mrs. Taylor.

[73] With the services and advice of his lawyer, Mr. Reed, Mr. Taylor executed the Last Will and Testament on February 18, 2011. This is the Last Will and Testament challenged by Andrea. The Last Will and Testament reverts the residual beneficiary back to Shirley and appointed Shirley the Estate Trustee of Mr. Taylor’s estate. (see affidavit of Shirley Taylor, paragraph 17, exhibit 44).

[74] In his affidavit, Mr. Reed deposes that he returned to Mulcaster Mews on February 18, 2011 at which time Mr. Taylor executed the Last Will and Testament in the presence of Mr. Taylor. When this was done, Shirley was not present. At paragraph 23 of his affidavit, Mr. Reed deposes:

…it is my opinion that Mr. Taylor was not under any undue influence by Mrs. Taylor to execute this Will. On March 4, 2011, Mr. Reed emailed Andrea to let her know that he had met with Mr. Taylor and what his observations were. (see affidavit of Shirley Taylor, exhibit 48).

[75] Andrea continued to write many emails to Mr. Reed and the banking institutions regarding Mr. Taylor’s affairs. At one time, Mr. Taylor instructed the long-term care facility not to allow any communications from Andrea.

[76] On March 4, 2011, Mr. Reed confirmed to Andrea that he had no concerns concerning Mr. Taylor’s capacity and undue influence or elder abuse. However, Andrea refused to accept this.

[77] On July 23, 2011 (four months later) Mr. Taylor executed a new Power of Attorney for Property document naming Shirley as the sole Attorney for Property. At paragraph 26 of his affidavit, Mr. Reed deposes:

…when I attended, I already had the Power of Attorney documents prepared for Mr. Taylor to sign. When Mr. Taylor signed the new Power of Attorney document Mrs. Taylor was not present. It is my opinion that Mr. Taylor was not under undue pressure to execute the Power of Attorney document.

A copy of this Power of Attorney is already contained in Mrs. Taylor’s affidavit at exhibit 58. On July 28, 2011, Mr. Taylor executed a document to revert the beneficiary designation of his TD bank account to Shirley for her tax free saving account.

[78] Andrea continued to write to Mr. Reed making allegations and threats of litigation against Shirley. Mr. Taylor died on September 22, 2011. It was not until September 12, 2013 that Andrea commenced this claim.

[79] On about February 9, 2014, Andrea served an Amended Statement of Claim. In her Amended Statement of Claim, she continued to seek a Declaration that the Last Will and Testament of Mr. Taylor and certain beneficiary designations all benefiting Shirley be set aside. Added to the claim was a request for compensation to Andrea for services she claims to have provided to Mr. Taylor during his lifetime.

[80] There has been no communication between the parties since April 2015 and the commencement of this motion.

Suspicious Circumstances

[81] Andrea submits that in the last months of his life, Mr. Taylor left the nursing home, returned to Shirley and thereafter changed his Power of Attorney and his Will which she characterized as a “sudden about-face”; “very suspicious circumstances”. It is asserted that Mr. Taylor changed his Will coming out of a “separation” and being husband and wife, the issue of “suspicious circumstances” is raised. Andrea submits that having procured Mr. Taylor to change his Will by Shirley, there arises a presumption of undue influence.

[82] I find that the principle of suspicious circumstances only become relevant for a court to consider when a party is challenging the Last Will and Testament on the basis of knowledge and approval or on the basis of testamentary capacity. It does not apply to the challenge of a Last Will and Testament on the basis of undue influence/coercion. As a result, there is no presumption of undue influence applied in testamentary undue influenced cases. [3]

[83] Where there is no presumption of undue influence applied in testamentary undue influence cases, if the attacker pleads testamentary undue influence then the attacker has to prove testamentary undue influence. The propounder of the Will is still free to move for summary judgment where the attacker’s case appears to be fatally weak at the outset. [4]

[84] This rule is also confirmed in the Supreme Court of Canada case of Vout v. Hay, 1995 CarswellOnt 186 (SCC) at para. 28.

[85] The Statement of Claim alleges only undue influence and does not raise the grounds of knowledge and approval or testamentary capacity. Therefore, the existence of any suspicious circumstances (which is denied) does not raise a presumption of undue influence as it would in the case, for example, of inter vivos gift challenge.

[86] Even if there was a presumption of testamentary undue influence recognized in law, I find such presumption has been rebutted by the affidavit evidence of Michael Reed and Shirley Taylor.

[87] Therefore, I reject that the principle of suspicious circumstances applies to the case at bar.

[88] I would also note that Mr. Taylor’s last Will simply reverts matters as they stood in accordance with Taylor’s Will dated September 10, 2004 whereby Shirley was designated as his residual beneficiary failing which, the residue of his estate would be divided equally between grandchildren. In all the circumstances, I do not find Mr. Taylor’s decision either shocking or suspicious.

Undue Influence

[89] Andrea has the burden of establishing the existence of undue influence. [5]

[90] For the conduct to amount to testamentary undue influence, it must amount to coercion, forcing the Will-maker to make a Will containing gifts that he or she would otherwise not make. [6]

[91] The Ontario Court of Appeal, citing Wingrove v. Wingrove (1886) L.R. 11 P.D. 81, highlighted a requirement for a plaintiff to prove causation in addition to coercion. In Anderson v. Walkey, citing Wingrove, the court stated:

There remains…another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power that the will, such as it is, has been produced. [7]

[92] Andrea in her Amended Statement of Claim makes no allegation of coercion and/or influence that would amount to undue influence. Her claim of undue influence rests solely on the fact that Shirley threatened “whether spoken or implicitly” that she would leave or divorce Mr. Taylor if she did not sign the Last Will and Testament of February 18, 2011 or revert the beneficiary designation forms back to Shirley on February 3, 2011 and July 28, 2011. (see Amended Statement of Claim, affidavit of Shirley Taylor, exhibit 72, paras. 26, 28 and 30)

[93] Shirley vehemently denies that she ever threatened “whether spoken or implicitly” or otherwise to divorce to Mr. Taylor if he did not execute the Last Will and Testament or the beneficiary designation forms for the bank accounts. I accept Shirley’s evidence that she never made any such threat in any form to divorce Mr. Taylor if he did not execute the Will of February 18, 2011 or the beneficiary designation forms for the bank accounts. Even if Andrea could establish that Shirley gave such ultimatums, I find such ultimatums do not constitute undue influence as described in the jurisprudence. I find there was no coercive conduct as alleged by Shirley. The allegation is bald and lacks particularity.

[94] Further, Andrea would have to establish that the undue influence, if any, was the cause of Mr. Taylor executing the new Will. There were other reasons for Mr. Taylor to revert his estate beneficiary back to Shirley 100 percent. This included the allegations of sexual abuse brought by Andrea, the allegations of right to Mr. Taylor real estate property brought by Andrea, the allegations of Shirley committing elder abuse brought by Andrea – all fabricated without foundation. Not to be overlooked, Mr. Taylor expressed natural love and affection for Shirley.

[95] Andrea also alleges in her Amended Statement of Claim that Mr. Taylor was afraid of his son Ken. It is alleged that Shirley knew this and this was the reason she contacted Ken to come to Ontario with the result that Shirley and Ken either together or separately brought undue influence to bear against Mr. Taylor to transfer title of various assets from his name or name jointly with Andrea, or with Andrea as beneficiary, to Shirley’s name. This too is a bald allegation with absolutely no support on this evidentiary record. There was no evidence that Kenneth Taylor threatened his father with anything. To the contrary, there is evidence that Mr. Taylor did not feel threatened by Ken.

[96] Lastly, at paragraph 30 of the Amended Statement of Claim it is alleged that just prior to his death, Mr. Taylor told Andrea in the company of a family friend that he was sorry but Shirley told him that if Mr. Taylor did not exclude Andrea from his estate, Shirley would divorce him immediately. At this time, Mr. Taylor was in the final stages of cancer and within weeks of his death. There is absolutely no evidence from the family friend named Deborah Rupert to support Andrea’s allegation. It is Andrea’s obligation to put her best foot forward on a summary judgment motion and such evidence, if it exists at all, is noticeably absent from this motion record.

[97] Shirley further relies upon s. 13 of the Evidence Act, R.S.O. 1990, c.E.23 which provides:

Actions by or against heirs, etc. - 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.

[98] I find that s. 13 of the Evidence Act applies in this case and that Andrea’s evidence is not corroborated by “other material evidence” in respect of the issue of undue influence.

[99] For these reasons, I find Andrea’s claim alleging undue influence must fail and there is no genuine issue requiring a trial.

Claim for Compensation

[100] I find Andrea, in her Amended Statement of Claim, makes no allegation of the existence of an agreement between herself and Mr. Taylor for services and compensation. In fact, Andrea claims that Mr. Taylor came to live with her, not as a part of an agreement or contract, but because the alternative was for Mr. Taylor to convalesce at Mulcaster Mews. Andrea, in her correspondence to Mr. Reed, evidences her distaste for long-term care facilities by equating the facility to jail and referring to the residents as “inmates”. (see Affidavit of S. Taylor at paragraph 66, exhibit 40).

[101] In addition, at paragraph 21 of the Amended Statement of Claim, Andrea alleges that Mr. Taylor decided, after two or three months of convalescing at Andrea’s home, that he would change his Will to leave 50 percent to Andrea. This demonstrates that there was no agreement between the parties prior to Andrea providing the alleged services. There was no requirement that Andrea would only provide the services if compensated in the Will. There is no evidence that Andrea was expecting to benefit under the Will.

[102] In addition to there being no evidence of an agreement between Andrea and Mr. Taylor, there is no evidence of Andrea actually providing services. Just because Mr. Taylor lived with her does not mean that she provided services pursuant to an alleged agreement. In paragraph 20 of the Amended Statement of Claim, Andrea indicates that she arranged an in-home care provider to assist Mr. Taylor. The in-home care provided performed Mr. Taylor’s care needs not Andrea.

[103] Even if Andrea were able to produce evidence of services having been provided, she cannot claim that she was not compensated for these services. Andrea acknowledges being paid $2,000 each month by Mr. Taylor while convalescing in her home. Further, the bank statements for the CIBC bank account demonstrate that, in addition to the monthly fee, Andrea and her husband, Kerry Reid, were paid various amounts at various times from Mr. Taylor CIBC bank account while Mr. Taylor was convalescing in her home.

Physical Damage

[104] Additionally, in paragraph 19 of the Statement of Claim, Andrea alleges to have suffered “physical damage” as a result of services rendered. Andrea, however, has produced no evidence of any alleged “physical damage” caused by the services alleged to have been provided. Further to that, if Andrea has suffered any physical damage, Shirley submits it is likely that Andrea’s pre-existing health conditions are the cause of any “physical damage” if any exists.

[105] Based on the jurisprudence, Andrea’s claim for compensation cannot succeed and there is no genuine issue requiring a trial.

[106] Even if Andrea could demonstrate a genuine issue for trial based on evidence of actual “physical damage” and/or that services were actually performed pursuant to an actual agreement, Andrea is statute barred from commencing a claim against the Estate pursuant to s. 4 of the Limitations Act, 2002 and the case of Leibel v. Leibel.

[107] In the case of Leibel v. Leibel, the court determined that, in a Will challenge, the limitation period commences on the date of death, being September 22, 2011. This, however, is subject to the discoverability rule outlined in s. 5 of the Limitations Act, 2002. In Leibel v. Leibel, the Plaintiff (Will challenger) was found to have discovered the claim within 60 days of the date of death and, since the claim was commenced outside of the two year limitation period, it was statute barred.

[108] In the case at bar, Andrea did not commence her claim for compensation until the Amended Statement of Claim was served on February 9, 2014. Mr. Taylor`s date of death is September 2, 2011. Andrea was aware of the claim on or before September 30, 2011 when she wrote to Mr. Reed indicating her intention to challenge the Last Will and Testament. Since the Amended Statement of Claim containing the claim for compensation was not served until February 9, 2014, being two year and 132 dates after Andrea’s email to Mr. Reed, the claim for compensation is statute barred.

Evidence Act

[109] I return to the application of s. 13 of the Evidence Act to Andrea’s claim for compensation. I find there was no corroborating evidence of the material facts in issue.

[110] In the Burns Estate v. Mellon, the Ontario Court of Appeal considered s. 13 of the Evidence Act and stated the following regarding corroborating evidence at para. 29:

The main issue on this appeal is whether Ms. Mellon’s evidence had been corroborated “by some other material evidence.” The corroboration required by s. 13 must be evidence independent of the evidence of Ms. Mellon, which shows that her evidence on a material issue is true. The corroborating evidence can be either direct or circumstantial. It can consist of a single piece of evidence or several pieces considered cumulatively.

[111] In this case, Andrea has no evidence to corroborate the material facts in dispute being:

a) that Shirley threatened to leave/divorce Mr. Taylor if he did not execute the Last Will and Testament and the bank account beneficiary designations, and b) that there existed an agreement between Mr. Taylor and Andrea for compensation.

Apart from Andrea’s own evidence, there is no evidence to corroborate the material facts alleged by her.

Weighing the Evidence

[112] The evidence indicates that Mr. Taylor and Shirley were in a loving long-term relationship while Mr. Taylor and Andrea had a troubled relationship, including allegations of sexual abuse, elder abuse and a real estate dispute by Andrea against Mr. Taylor. The evidence also indicates that Mr. Taylor was more likely to have been influenced by Andrea when his Will was changed in December 2010 (leaving 50 percent of the residue to Andrea) than when he executed his Last Will and Testament signed February 18, 2011 (which reverted the residual beneficiary to 100 percent Shirley). This evidence is corroborated by the Affidavit of Michael Reed, a neutral third party who was Mr. Taylor's long-time lawyer and who has no interest in the Estate, or the outcome of this litigation.

Evaluating Credibility

[113] The evidence raises questions about the credibility of Andrea. Firstly, Shirley submits there should be an adverse inference drawn from the Andrea’s delay in commencing the action and her delay in pursuing the action.

[114] Additionally, paragraph 23 of the Amended Statement of Claim reads: "Once the deceased became well enough, he returned to live in the City of Barrie and put in an old age home by Shirley". This sentence alleges that the deceased became "well enough" to leave Andrea’s home when, in fact, the deceased left Andrea’s home on January 16, 2011 by ambulance and was admitted to Hospital for 17 days. When Mr. Taylor was discharged from Hospital on February 2, 2011, he was admitted to Mulcaster Mews. Andrea fails to include any details regarding the second Hospital admission or the events which occurred during January 16, 2011 and February 2, 2011 while Mr. Taylor was in Hospital. (see Amended Statement of Claim paragraph 23, Affidavit of S. Taylor paragraphs 36 and 58).

[115] Further, Andrea’s Amended Statement of Claim suggests that she had always had a close relationship with Mr. Taylor. Andrea, however, fails to acknowledge that she and Mr. Taylor had a troubled relationship. Andrea had made false allegations of sexual abuse against Mr. Taylor in 2004. In addition, Andrea made false allegations of an entitlement to Mr. Taylor's cottage properties in 2005. Upon Mr. Taylor's second Hospital admission, Andrea began making false allegations of elder abuse against Shirley.

[116] I find it is reasonable for this court to find from the evidence that:

a) Mr. Taylor was not experiencing any undue influence from Shirley when signing the Last Will and Testament dated February 18, 2011; b) Mr. Taylor was not experiencing any undue influence when signing the beneficiary designation forms in favour of Shirley on February 3, 2011 and July 28, 2011; and c) Mr. Taylor made no agreement with Andrea for compensation.

[117] In the end, I find that there are no genuine issues requiring a trial. A trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2.). The use of those powers are in interests of justice. They do lead to a fair and just result and they do serve the goals of timeliness, affordability and proportionality in light of this litigation as a whole. In this case, summary judgment is granted and Andrea’s claim is dismissed.

CONCLUSION

[118] For these reasons, the moving party’s motion for summary judgment is granted and the plaintiff’s claim is dismissed against the Defendants Shirley Cecilia Taylor personally and as the Estate Trustee of Charles Fullerton Taylor, deceased as disclosing no genuine issue requiring a trial. Having so found, it becomes unnecessary for me to consider the alternative relief sought by the moving party. As for costs, the parties agreed that costs would be determined by way of written submissions. Within the next 30 days, the parties shall exchange and file with my judicial assistant at Barrie a concise statement as to costs no longer than two pages in length, a Costs Outline, draft Bills of Costs together with any applicable authorities.

DiTOMASO J. Released: July 22, 2016

[1] Hryniak v. Mauldin, 2014 SCC 7 at para. 66 [2] Hryniak v. Mauldin, 2014 SCC 7, supra, at para. 68 [3] John E.S. Poyser, Capacity and Undue Influence, Carswell 2014 at page 344 [4] John E.S. Poyser, Capacity and Undue Influence, supra. [5] Vout v. Hay [6] Williams v. Goude (1828), 162 E.R. 682 at 581; Wingrove v. Wingrove (1886) L.R. 11 P.D. 81 [7] Anderson v. Walkey, [1961] O.R. 289, (Ont. C.A.) at para. 25