Nature of Application

[1] The Applicant seeks to have a handwritten holographic will dated June 24, 2000 that he asserts was made by his deceased brother (under which the Applicant is the sole beneficiary) accepted by the Court as the last will and testament of the deceased that would prevail over the deceased’s will dated June 6, 1995 that was probated by this Court in 2009 (under which the Respondent Almas Barcham is the sole beneficiary).

[2] The Applicant commenced this application by a Notice of Application issued on October 8, 2015 seeking an Order:

a. That the Respondents produce and provide to the Applicant a copy of the Certificate of Appointment of Estate Trustee.

b. For the revocation of the Certificate of Appointment of Estate Trustee.

c. For directions as to whether the Revocation of the Certificate of Appointment of Estate Trustee granted to the Respondent, Almas Barcham, should proceed by way of Application or an amended Statement of Claim [in a pending action].

d. For directions from the court as to the manner to have the deceased’s holographic will dated June 24, 2000 to be put forward as the last will and testament of the deceased and proved in such a manner as the Court directs.

e. For the Respondents to produce and provide to the Applicant a copy of any and all documents relating to the Estate of George Barcham that are in their possession.

[3] For the following reasons, the application is dismissed.

Background

[4] Through the relief claimed on this application, the Applicant seeks to recover an interest in his deceased’s brother’s estate. The deceased, George Barcham, died on May 21, 2009.

[5] The last will and testament of the deceased dated June 6, 1995 was probated by the Ontario Superior Court of Justice on November 10, 2009. The Respondent, Almas Barcham, was appointed estate trustee by a Certificate of Appointment of Estate Trustee dated November 10, 2009. The Property was the only significant asset of the estate of the deceased. Title to the Property was transferred to the Respondent Alma Barcham in accordance with the terms of the probated will.

[6] When the Notice of Application was issued on October 8, 2015 there was a pending action in this Court that was commenced by Statement of Claim issued on May 7, 2012 between the Applicant as plaintiff and the Respondents as defendants (the “Action”). The Action was discontinued by the Applicant, on consent, on or about March 7, 2016. The circumstances relating to this discontinuance are described below.

[7] In the Action, the Applicant sought a declaration that the Respondents hold in trust for him a one-third interest in certain property (the “Property”). The Applicant claimed that the Property was purchased using proceeds from the sale of another property to which he had made contributions towards the upkeep, maintenance and payment of mortgages and taxes. The Action was defended.

[8] According to the affidavit of the Applicant sworn on January 5, 2017 in support of this application, his deceased brother had prepared and given to him for safekeeping a holographic will that the Applicant’s deceased brother requested be kept secret. The Applicant’s evidence is that he did not open the holographic will, to respect his brother’s privacy.

[9] The Applicant in his January 2017 affidavit explains that he advised his former lawyer after the death of his brother that there was a holographic will in existence that his brother prepared subsequent to the June 6, 1995 will. The Applicant explains that he forgot where he had placed the holographic will and he searched his home and files, but could not locate it. The statement of claim in the Action was prepared by the Applicant’s former lawyer without reference to the existence of a holographic will.

[10] According to the Applicant’s January 2017 affidavit, on or about May 19, 2014 the Applicant found his deceased’s brother’s holographic will dated June 24, 2000 under which he claims to be entitled to a full interest in his brother’s estate. He states that he had continuously searched his house from the date that his brother died but was not successful in finding the holographic will. He states that he finally found it in a briefcase that he had previously checked which was full of documents and the will was folded very small and was hidden amongst other documents.

[11] In early October 2015, shortly before the scheduled commencement of the trial of the Action, the Applicant brought a motion to amend the statement of claim in the Action to reflect the relief he is seeking based upon the contents of the holograph will (under which he would be entitled to a full interest in the Property and other assets of the deceased). The amendments proposed by the Applicant were to (a) set aside the court appointment of Almas Barcham as estate trustee; (b) set aside the 1995 will; (c) set aside the distribution of the assets of the estate; (d) request a finding that the holograph will stand as the deceased’s last will and testament over the 1995 will; and (e) request a finding that the Applicant is the sole beneficiary of the deceased’s estate.

[12] The motion was heard by Lederman J. on January 8, 2016. The Applicant submitted on the motion that he was moving to amend the statement of claim merely to particularize the alternative relief he was seeking. The Respondents submitted that the Applicant was attempting to plead an entirely new cause of action and, because the Applicant had actual knowledge of the existence of the holographic will at the time of his brother’s death and did nothing to challenge the validity of the 1995 will or the distribution of his brother’s estate according to its terms, that the new cause of action was statute-barred.

[13] Lederman J., in his reasons, held that the requested amendments raise a new cause of action not set out in the statement of claim. He wrote that in order to succeed on a motion to amend pleadings after the expiry of a limitation period, a plaintiff must demonstrate that there is a triable issue of discoverability which, he wrote, will be in issue if a plaintiff demonstrates that he exercised due diligence. Lederman J. wrote that a motion to amend pleadings after the expiry of a limitation period should be refused if the plaintiff is unable to demonstrate the existence of a triable issue of fact or credibility relating to discoverability.

[14] Lederman J. held that the record before him does not disclose a triable issue as to whether the Applicant acted with due diligence. He accepted that the court has residual discretion to permit the amendment, even if the plaintiff fails to establish an issue as to discoverability. However, he held that this discretion is constrained by the presence of prejudice to the opposing parties. Lederman J. concluded that both actual and potential prejudice would be visited on the defendants if the Applicant were to be successful on the motion to amend the statement of claim.

[15] In the reasons for his decision, Lederman J. wrote:

Lazar proposes to plead a new cause of action. If his action were to be advanced in an entirely new statement of claim, it would be statute-barred. Permitting new causes of action to be pleaded via existing claims is not the rationale for rule 26.01, especially where those claims are made outside of the limitation period. The principle of discoverability does not assist the plaintiff on this motion. It is designed to permit amendments to pleadings where it could not reasonably have been known, even with a plaintiff’s due diligence, that evidence existed which would warrant a new cause of action to be commenced. That is not the case on this motion.

Lederman J. dismissed the motion to amend the statement of claim.

[16] Following release of the decision of Lederman J. the Action was discontinued, on consent, on or about March 7, 2016.

[17] The Applicant wishes to proceed with this Application in order to have the holographic will recognized by the court as the legitimate last will and testament of his deceased brother, with the Applicant as sole beneficiary.

Analysis

[18] The Applicant takes the position that, notwithstanding the decision of Lederman J., he is entitled to proceed to have the application decided on its merits. The Applicant’s position is that he has newly discovered material evidence, the holographic will, to substantiate his own oral evidence to support his claim that he is entitled to the Property and other assets included in the estate of his deceased brother. The Applicant submits that he made all reasonable efforts to find the holographic will after the death of his brother and before the will was discovered.

[19] The Applicant submits, correctly, that pursuant to Rule 23.04(1) the discontinuance of the Action does not bar him from proceeding with this application. The question that I address in these reasons is a different one, whether the decision of Lederman J. precludes the Applicant from bringing this application for relief founded upon the holographic will.

[20] With respect to the limitation period for this claim, the Applicant submits that the general rule is that a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. The Applicant seeks to satisfy the court regarding the issue of discoverability and the commencement date of the limitation period as it relates to the estate of his deceased brother.

[21] The Applicant submits that, given that there is a newly discovered holographic will and the estate was not distributed according to the holographic will, the Applicant has a claim against the personal Respondent or against the estate of his deceased brother.

[22] The Respondents refer to the decision of Lederman J. and submit that the Applicant is now impermissibly trying on this application to obtain what he could not obtain through an amendment to the statement of claim in the Action. The Respondents submit that the court has already made a decision that the Applicant’s request for a judicial finding that the holographic will is the last will and testament of the deceased that prevails over the 1995 will is a new cause of action that is statute barred, and that the Applicant should not be able to relitigate this question.

[23] The Respondents also submit that, on the evidence before the Court, and apart from the decision of Lederman J., the claims made in this application are statute barred. Further, the Respondents submit that the doctrine of laches applies because, they submit, the Applicant acquiesced in the estate being distributed in accordance with the 1995 will, resulting in circumstances that make the prosecution of this application unreasonable.

[24] The Respondents’ submission that the Applicant is impermissibly trying to relitigate a question that was decided by Lederman J. requires consideration of the doctrine of issue estoppel.

[25] In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, Binnie J. described the rationale underlying the doctrine of issue estoppel, at para.18:

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. … An issue, once decided, should not generally be relitigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.

In Danyluk, Binnie J., citing an earlier Supreme Court of Canada decision in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248, set out, at paragraph 25, the preconditions to the operation of issue estoppel: (1) the same question has been decided; (2) the judicial decision which is said to create the estoppel was final; and (3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

[26] In Danyluk, at para. 24, Binnie J. quoted with approval the following passage from the decision in McIntosh v. Parent, [1924] 4 D.L.R. 420 (Ont. C.A.):

When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains. [Emphasis added [by Binnie J.]]

[27] On the Applicant’s motion to amend the statement of claim in the Action, the question of whether the new cause of action founded upon the holographic will, if it were to be advanced in an entirely new statement of claim, would be statute barred was distinctly put into issue and directly decided by Lederman J. He decided that the Applicant had failed to demonstrate that there was even a triable issue of whether the Applicant, by the exercise of reasonable diligence, ought to have discovered the evidence which would support a new cause of action. Lederman J. decided that such a cause of action if advanced in a new action would be statute barred.

[28] This application raises the same question as the one that was decided by Lederman J., that is, whether the Applicant’s claims founded upon the discovery of the holographic will are statute barred. The first precondition to the application of the doctrine of issue estoppel is satisfied.

[29] The decision of Lederman J. is, unquestionably, a judicial decision. It is also a final decision. A final decision for the purpose of the doctrine of issue estoppel is a decision which conclusively determines the substantive question between the parties (even though it may not be determinative of the entire action). The decision of Lederman J. conclusively determined whether the new cause of action founded upon the holographic will was statute barred. This decision was not appealed, and is final for the purpose of the doctrine of issue estoppel. The second precondition to the application of the doctrine of issue estoppel is satisfied.

[30] Finally, the parties to the Action are the same persons as the parties to this application, so the third precondition to the application of the doctrine of issue estoppel is also satisfied.

[31] Although a court has discretion to refuse to apply the doctrine of issue estoppel, the Supreme Court of Canada has held that, in the context of court proceedings, such a discretion must be very limited in application: Danyluk, at para. 62. The exercise of discretion is necessarily case specific and depends on the entirety of the circumstances. In exercising the discretion, the court must ask - is there something in the circumstances of this case such that the usual operation of the doctrine of issue estoppel would work an injustice? : see Danyluk, at para. 63, citing Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), at paras. 38 and 43. Such circumstances include a change in the law or the availability of further relevant material that could not by reasonable diligence have been adduced in the prior proceedings.

[32] There has been no change in the law and there is no relevant evidence adduced on this application that was not available to the Applicant when the motion heard by Lederman J. was brought and decided. Although the Applicant’s affidavit sworn on January 5, 2017 contains additional evidence concerning the circumstances around the discovery of the holographic will that was not included in the affidavit evidence before Lederman J., this additional evidence was available to the Applicant when his motion to amend the statement of claim was brought. In my view, there are no circumstances that arise in this case that would justify the exercise of judicial discretion not to apply the doctrine of issue estoppel where, as here, the requirements have been met.

[33] I have concluded, therefore, that the Applicant is precluded by the doctrine of issue estoppel from relitigating in this application the question of whether his claims against the Respondents founded upon the holographic will are statute barred.

[34] Avoidance of conflicting or inconsistent decisions is one of the rationales underlying the application of the doctrine of issue estoppel. Because of my conclusion, I do not need to decide (based upon the evidence tendered on this application) whether I would have made the same decision with respect to the issue of the limitation period as was made by Lederman J. I also do not need to address the other submissions made on behalf of the Respondents, including whether the doctrine of laches would apply in these circumstances.

Disposition

[35] For the foregoing reasons, this application is dismissed.

[36] If costs are not agreed upon, the parties may make written submissions. The written submissions of the Respondents (not exceeding three pages, excluding the costs outline) are to be made within 30 days. The responding submissions of the Applicant (limited to three pages, excluding the costs outline) are to be made within 15 days thereafter.

Mr. Justice P.J. Cavanagh

Released: February 3, 2017

CITATION: Barcham v. Barcham, 2017 ONSC 813

COURT FILE NO.: CV-15-538097

DATE: 20170203

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LAZAR BARCHAM

Applicant

– and –

ALMAD BARCHAM and THE ESTATE OF GEORGE BARCHAM

Respondents

REASONS FOR JUDGMENT

Mr. Justice P.J. Cavanagh

Released: February 3, 2017

Barcham v. Barcham, 2017 ONSC 813

Case Summary

Nature of Application

Background

Analysis

Disposition

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1