CITATION: Swearengen. v. Aho, 2016 ONSC 7052
COURT FILE NO.: CV-14-0310-ES
DATE: 2016-11-14
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF CLYDE ROY SWEARENGEN
B E T W E E N:
Lee Swearengen and Linda Arps,
Mr. Holervich appearing for Lee Swearengen and Linda Arps,
Plaintiffs/Moving Parties
- and -
Patricia Aho, Lee-Ann Swearengen, Janie Swearengen, Valerie Seifert, and Jerry Swearengen,
Mr. Watkins appearing for the respondents Patricia Aho, Lee-Anne Swearengen and Valerie Seifert,
Respondents/Responding Parties
Jerry Swearingen appearing on his own behalf
HEARD: October 12, 2016, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons For Judgment
Overview
[1] By order dated July 7, 2016 I directed a trial of this issue: whether the estate or Jerry Swearingen is the owner of two skidders.
[2] Argument proceeded on October 12, 2016 and I reserved my decision.
[3] Evidence consisted of affidavits filed by both parties and testimony from Patricia Aho, a sister of the parties and also a beneficiary of the estate.
[4] The skidders are described as a 1985 Clark 666 D skidder and a 1975 Clark 664 B skidder. The estate argues that the skidders were owned by Clyde Swearingen at the time of his death in December 2014. Jerry Swearingen argues that he is the owner of the 666 D skidder and that he has an interest in the 664 B skidder by virtue of a mechanics lien for unpaid services.
The Facts
[5] The estate relied upon business records maintained by Clyde Swearingen.
[6] A ledger entry in Clyde Swearingen’s business records notes the purchase of the 664 B skidder in October 1984 at a purchase price of $11,500 and records the purchase of the 666 D the skidder in March 2005 for $20,000 plus HST. The estate also produced a receipt dated March 10, 2005 for that skidder.
[7] The estate also produced invoices for repairs to the 664 B skidder from November 15, 1984, April 19, 1987, March 4, 1993, November 14, 2002 and June 1, 2014 directed to Clyde Swearingen. Additionally, there are invoices from Jerry Swearingen’s company, The Break Specialist, for repairs to the 664 B skidder dated August 10, 2001, November 9, 2002, and November 16, 2002 to either C. Swearingen or Clyde Swearingen.
[8] Similarly, the estate produced invoices directed to Clyde Swearingen dated September 13, 2005, November 7, 2005, February 1, 2006, February 28, 2006, March 1, 2006 and March 30, 2006 relating to either the “floating” or repair to the 666 D skidder.
[9] The estate produced a personal property lien search which disclosed no liens against personal property owned by Clyde Swearingen.
[10] Jerry Swearingen filed affidavits from three individuals in which reference was made to the grapple skidder as “Jerry’s”.
[11] Jerry Swearingen also filed a record which purports to be handwritten invoice directed to Clyde Swearingen for work to the 664 B skidder dated June 2, 2014.
[12] Patricia Aho gave evidence that she had discussions with her father about her bother Lee Swearingen’s attempts to purchase the grapple skidder from Clyde Swearingen. She testified that Clyde Swearingen told her that he would not sell the grapple skidder to Lee because it was Jerry’s and that he had given it to Jerry.
Standard of Proof and the Requirement for Corroboration
[13] In F. H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para 49, the Supreme Court of Canada affirmed the standard of proof is on a balance of probabilities in all civil cases and that the task of the trial judge is to “scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.”
[14] To succeed in an action by or against a deceased's estate, a living person's evidence must be corroborated by some other material evidence. This requirement for corroboration is codified in s. 13 of the Evidence Act, which provides:
- 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.
[15] Section 13 addresses the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the living's version of events. (Riordan v. Mellon, 2000 CanLII 5739 (ONCA) at para 5.)
Analysis and Disposition
[16] Does Jerry Swearingen have an interest in either of the skidders?
[17] I am satisfied that the failure to register a lien negates any claim that Jerry Swearingen may have with respect to the 664 B skidder.
[18] With respect to the 666 D (grapple) skidder I am satisfied that this skidder was purchased by Clyde Swearingen. The question is whether it was gifted to Jerry Swearingen as suggested by his sister. The fact that others referred to this skidder as “Jerry’s” assists little in determining whether there was a gift.
[19] I conclude that Patricia Aho’s evidence is capable of corroborating Jerry Swearingen’s claim against the estate for the purpose of section 13 of the Evidence Act if I accept her evidence. I note that her testimony goes against her interest since, as a beneficiary, she and the other beneficiaries would lose that grapple skidder from the estate assets if it was a gift to Jerry Swearingen. Ms. Aho was cross-examined and her testimony was not, I conclude, challenged on the fact that Clyde Swearingen had, before his death, told her that he had given this grapple skidder to Jerry Swearingen.
[20] For the foregoing reasons, I order that the 664 B skidder is an asset of the estate and that the 666 D skidder was a gift to Jerry Swearingen and is not, therefore, an asset of the estate.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: November 14, 2016
CITATION: Swearengen. v. Aho, 2016 ONSC 7052
COURT FILE NO.: CV-14-0310-ES
DATE: 2016-11-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lee Swearengen and Linda Arps,
Plaintiffs/Moving Parties
- and -
Patricia Aho, Lee-Ann Swearengen, Janie Swearengen, Valerie Seifert, and Jerry Swearengen,
Respondents/Responding Parties
REASONS FOR JUDGMENT
Newton J.
Released: November 14, 2016
/sab