Court File and Parties

COURT FILE NO.: CV-14-518156 DATE: 20160916 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Wei Chee Sui Yip Applicant – and – Jianwei Deng and R. C. Congregation of St. John the Baptist and The Roman Catholic Congregation of St. John the Baptist Respondents

Counsel: Chi-Kun Shi, for the Applicant Gregory Chang, for the Respondents

HEARD: August 29, 2016

Endorsement

S.F. Dunphy J.

[1] This is an application brought by the applicant Wei Chee Sui Yip seeking either to correct or to invalidate a gift of a $1.2 million home north of Toronto made in August 2013 to her parish priest the respondent Fr. Jianwei Deng in trust for his religious order, the respondent R.C. Congregation of St. John the Baptist and its newly-incorporated Ontario affiliate, The Roman Catholic Congregation of St. John the Baptist.

[2] The Notice of Application pleads that the gift was made under the influence of mistake and seeks either to secure its return as a failed gift or to correct the error by transferring the property to the Catholic Church rather than the religious order or Fr. Deng as its trustee for it. By way of amendment, the Notice of Application now also seeks to invalidate the gift entirely as having been the product of undue influence. This amended, alternative claim of undue influence was in fact the entire focus of the application as argued before me. I was presented with little to no argument directed at the issue of mistake although the applicant filed affidavits and was cross-examined on the premise of a claim based on an alleged mistake.

[3] This case has a number of features that set it apart from the normal undue influence line of cases. First and foremost, the donor is still alive, a relatively rare feature in cases of this nature. Secondly, she is not alleged to have lacked capacity at any time – past or present –Thirdly, the donor has asserted by affidavit and continues to assert that she fully intended to make the gift of the house, disputing only the terms of the trust under which it was to be held by Fr. Deng. A subsequent affidavit makes the somewhat inconsistent allegation of undue influence. Thirdly, undue influence was pleaded by way of amendment and in the alternative and after all of the principal cross-examinations had already taken place and most of the affidavits delivered.

[4] Notwithstanding the existence of a number of contradictions in the voluminous evidence filed (by way of affidavit and examination), both sides insisted that I can and should determine the issues raised by this application based on the evidence before me. I was urged not to require either side to incur further costs or to delay the matter any further by converting the application to an action or ordering a trial on one or more issues raised pursuant to Rule 38.10 of the Rules of Civil Procedure.

[5] In my view, I have discretion to order a trial of an issue or to convert the matter under Rule 38.10 of the Rules of Civil Procedure regardless of the joint urging of the parties. Nevertheless, the interests of efficiency and proportionality suggest that I should give considerable weight to the joint urgings of the parties. After all, despite being adverse in interest, they would have a full appreciation of the nature and extent of the contradictions in the evidence they were asking me to grapple with. If the parties represent that they consider the record to be adequate to permit me to make a fair determination of the issues, their assessment is entitled to consideration by me. This was the approach taken by Nolan J. in Sikh Cultural Society v. Kooner, 2011 ONSC 5513 at para. 34-37, a decision that was upheld by the Court of Appeal without reference to the procedural issue reported at Sikh Cultural Society of Metropolitan Windsor v. Kooner, 2012 ONCA 401.

[6] I have given the matter careful thought and reviewed the evidence – all if it – with great care. Unfortunately, I find that I am left with contradictions and gaps in the evidence that I cannot resolve with sufficient confidence to allow me to proceed.

[7] While neither side contests capacity, the direct evidence of capacity offered is by way of letter in a lawyer’s file, the entire contents of which were made an exhibit. The totality of the evidence before me has left me in considerable doubt on the question of capacity and I am not satisfied with the indirect evidence that I have been offered on the subject.

[8] Mistake has been pleaded but argued only slightly if at all. I am left with direct contradictions between the evidence of Mr. Chang, the applicant’s lawyer at the time of the gift, and the applicant herself as to the instructions she gave. I have no means of resolving these contradictions with sufficient confidence in the fairness and justness of any conclusions I may reach.

[9] The issue of solicitation of this gift is another matter about which I have a considerable body of contradictory evidence and is highly relevant to the undue influence allegation.

[10] In short, despite the urgings of the parties that I make a decision on the record before me, I find that the written record is simply not adequate to permit me to do so. In my view, the fairest and most expeditious means of dealing with this problem is not to send the parties back to the drawing board after all of the time, expense and effort expended in getting this far. I am of the view that a short hearing with viva voce testimony is required. Argument need not be repeated, although a focused review of the issues raised by the testimony to be heard would be useful.

[11] I am directing the parties to schedule a short (30 minute) motion before me to identify the precise issues to be addressed, the names of the necessary witnesses and the ground rules for proceeding. In particular, affidavits and transcripts already filed need not be repeated at length but may be supplemented, for example.

[12] The parties should secure the next 30 minute appointment before me that is available from the motions office. Order accordingly.

S.F. Dunphy, J. Date: September 16, 2016