Court File and Parties

COURT FILE NO.: 298/15 DATE: 20181002 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Wendy Cotnam Plaintiff – and – Donna Jensen and David Burstein Defendants

Counsel: Wendy Cotnam, Self-Represented Mark A. Wiffen, for the Defendants

HEARD: May 22, 24, 25, 28, 29, 30, 31, June 1, 2018

REASONS FOR JUDGMENT

Sosna, J.

[1] The plaintiff, Wendy Cotnam (“Cotnam”), seeks a declaration that she is the beneficial owner of 338 Daniel Street, Peterborough, Ontario (the “Property”) and that title should be transferred to her. Presently, the Property is registered to the defendants, Donna Jensen (“Jensen”) and David Burstein (“Burstein”). Cotnam and her husband, Basil Cotnam (“Basil”), have resided at the Property as tenants since 1994.

[2] Cotnam claims she entered into a written lease with the defendants in 1994 (Exhibit 1: the “Lease”). Cotnam also claims that in 2003, while still a tenant, the defendants sold the Property to her. The transaction was set out in a one-page document (Exhibit 3: the “Agreement”).

[3] The Agreement stipulates that the purchase price for the Property was $120,000. The Agreement obligated Cotnam to make monthly payments of $750 over 160 months. She would continue to live at the property and would receive title after making the payments.

[4] Cotnam claims the defendants have conspired to defraud her of title to the Property and seeks an order that title to the Property be transferred to her.

[5] In the alternative, having lived on the Property and improved its value since 1994, Cotnam seeks damages of $500,000 for unjust enrichment.

[6] The defendants acknowledge a verbal tenancy arrangement with the plaintiff, but deny the existence of a written lease. The defendants also deny entering into an agreement to sell the Property to Cotnam. They contend that both the Lease and the Agreement have been fraudulently prepared by Cotnam to support her claims.

[7] The defendants seek a dismissal of Cotnam’s claims of beneficial ownership and the transfer of title. Further, they deny Cotnam’s claim that she improved the value of the Property while living there and seek a dismissal of her claim for unjust enrichment.

BACKGROUND FACTS

[8] The Property is legally described as: PT LT 3, CON W COMMUNICATION ROAD, SMITH, PT 1, 45R9093; LT 12 RCP 99 SMITH, PT 3, 45R9093; S/T R389350 SMITH-ENNISMORE. It is known by Property Identification Number (PIN) 28450-0043 LT in the Land Registry Office in Peterborough.

[9] The plaintiff resides in the City of Peterborough, in the County of Peterborough.

[10] The defendants reside in the City of Toronto, in the Province of Ontario.

[11] The Property in its current form is comprised of 8.86 acres and fronts onto Daniel Street. The back acreage, in excess of 8 acres, was previously owned by Jensen’s mother and later acquired by her. The original 338 Daniel Street property was a small residential property purchased from a third party in 1981. The Daniel Street property and the back acreage were consolidated in 1991. The consolidated property was legally owned by Jensen. The Property was held in trust by Jensen for the beneficial owners Jensen, Burstein, and Jensen’s nephew, Randy Cornell (“Cornell”).

[12] In August 2007, Cornell sold his beneficial interest in the Property to Burstein. The transfer was registered on title with Jensen transferring title to the Property from herself (as legal owner of the property in trust) to Jensen and Burstein as tenants in common. Since then, Jensen and Burstein have been the registered owners of the Property.

[13] In December 1994, Cotnam and her husband became tenants of 338 Daniel Street and continue to reside there. In 2015, issues concerning late or nonpayment of rent remained unresolved and on July 23, 2015, Burstein commenced eviction proceedings against Cotnam before the Landlord and Tenant Board.

[14] During the proceedings, Cotnam claimed that the Property had been sold to her and produced the Agreement. The hearing was adjourned pending the disposition of the present civil action.

ISSUES TO BE DETERMINED

[15] The main issues to be determined are:

(1) Is there a valid agreement of purchase and sale that would result in a transfer of title to Cotnam? (2) Is Cotnam entitled to damages for unjust enrichment?

[16] To provide context to both issues, an analysis of the exhibits relied on, including the purported Lease and Agreement, is necessary. On both questions, the civil onus of proof rests with Cotnam.

ANALYSIS AND FINDINGS

The Lease

[17] The defendants, Jensen and Burstein, claim that the Lease is a fraudulent document created by Cotnam. They testified that prior to litigation in 2015, the Lease was unknown to them. They acknowledged that a verbal tenancy was negotiated with the Cotnams, but denied it had been reduced to writing.

[18] The Lease is a one-page document. It is not dated. It is not the original, but a copy. When pressed in cross-examination regarding the whereabouts of the original document, Cotnam testified that she did not know because Cornell took it with him after negotiations were complete.

[19] The Lease does not set out its duration or a termination date. It states, “Basil and Wendy Cotnam will take possession of 338 Daniel Street December 1, 1994.” The rent is set at $750.00 per month with Donna Jensen and Randy Cornell responsible for upkeep and maintenance.

[20] Cotnam testified that she does not know who drafted the Lease. Her only knowledge was that Cornell brought it with him and that it set out their agreement in writing. At the time, Cornell held the Property in trust with Jensen.

[21] Although the first paragraph of the Lease identifies the parties stating, “Rental agreement between Basil and Wendy Cotnam and Randall Cornell and Donna Jensen in Trust,” their signatures are not present. The only signature on the face of the Lease is that of a “Brian Sloan” (“Sloan”). Cotnam testified that Sloan was Cornell’s friend who lived in her neighborhood at the time.

[22] Cotnam testified that Sloan acted as a witness to the Lease and also acted as an agent on behalf of Jensen and Cornell to receive the security deposit of $1,200.00 and the $1,400.00 for first and last month’s rent. The agency relationship is set out in the Lease.

[23] Cotnam testified that the whereabouts of Sloan are not presently known to her. As a result, she could not call him as a witness. Cornell passed away in 2014 and therefore his evidence is unavailable.

[24] Basil was a party both to the Lease and a witness to its negotiated terms. Although Basil is Cotnam’s husband and they still reside together, Cotnam elected not to call him as a witness to corroborate her evidence that a written lease had been negotiated and finalized.

[25] Jensen testified that because she was in Florida for extended periods of time, she left arrangements for rental of the Property with her nephew Cornell. All rental agreements were verbal and never done in writing. Contrary to Cotnam’s evidence, Jensen testified that she was never a party to the Lease and was not present when it was negotiated or purportedly signed by her.

[26] Jensen further testified that she had no knowledge of the existence of the Lease prior to the Landlord and Tenant Board hearing in 2015. Furthermore, she has neither heard of nor known a Brian Sloan.

[27] The Lease identifies “Randall Cornell” as holding an interest in the Property. Jensen testified that from his birth her nephew was known as Randy Cornell. She testified that at no time was he identified as “Randall Cornell” by others nor did he ever identify himself by that name.

[28] Jensen’s evidence regarding the name used by Cornell is confirmed in Exhibit 12, an Appraisal Report dated November 25, 1994 of 338 Daniel Street. The report states that it was “Prepared For: Randy Cornell” and not Randall Cornell.

[29] In addition, Exhibit 41, a letter to Jensen from her counsel on May 4, 1988, identifies that “Randy Cornell” is a party to the attached Letter of Agreement. The Letter of Agreement identifies “Randy Cornell” and not “Randall Cornell” as a signatory to the document.

[30] Jensen’s evidence, both in-chief and on cross-examination, was consistent and not undermined. I accept her evidence without reservation.

[31] Cotnam testified that the Lease was negotiated in November or December 1994. She testified it was the final product of two earlier leases reduced to writing by Cornell. She further testified that Cornell provided copies to her, but that she has since lost them.

[32] This evidence is inconsistent with Cotnam’s Affidavit of Documents (Exhibit 71: “Affidavit”). Schedule “C” of her Affidavit reads as follows:

Documents that were formerly in my possession, control or power but are no longer in my possession, control or power.

None

[33] Cotnam acknowledged that the Lease is not dated. She testified that it was formalized some time in December 1994, but she did not know the specific date.

[34] This evidence is also inconsistent with the evidence she provided in her Affidavit. Schedule “A” of her Affidavit reads as follows:

Documents in my possession, control or power that I do not object to producing for inspection.

1. Rental Agreement December 1, 1994

[35] When challenged in cross-examination regarding the contradictions in her evidence as compared to her sworn Affidavit, Cotnam responded, “If I am dealing with a lawyer I may not read everything.” I find Cotnam’s response evasive and transparently self-serving.

[36] Cotnam testified that after finalizing the Lease in December 1994, the Property remained vacant until March 1995, when she moved in. She testified she temporarily lived in Salt Springs, British Columbia until March 1995.

[37] Cotnam was challenged in cross-examination on this evidence. Counsel for the defendants produced a receipt for the amount $101.65 and dated January 10, 1995 (Exhibit 65: “receipt”). The receipt was addressed to “Mr. and Mrs. Cotman c/o 338 Daniels St. PTBO Ont.” from Honey Wagon Disposal for vacuuming and cleaning the septic tank. Although the receipt reads Cotman, it was obviously referring to the Cotnams.

[38] Moreover, attached to the receipt are two pages with handwritten notations. On page two, a handwritten notation reads: “I had to go on Service Call should be home 9:30 Basil”.

[39] When challenged in cross-examination on this point, Cotnam testified that the receipt was a fraudulent document created by the defendants. When further pressed that the handwritten note attached to the receipt was that of her husband Basil, Cotnam responded with another non-answer, stating, “I’m not a handwriting expert.”

[40] Cotnam’s credibility is further undermined by her evidence as to how she came into possession of the Lease and what happened to it.

[41] She testified that although the Lease was finalized in 1994, she did not receive it from Cornell until 2003. She testified Cornell gave her a sealed envelope that remained unopened until 2015. It was not until she opened the envelope 12 years later that she discovered the Lease.

[42] I find that it is more than mere coincidence that in 2015 when she testified she first discovered the Lease, it was also the year that she was brought before the Landlord and Tenant Board by the defendants. I further find that it is more than mere coincidence that Cotnam only filed a copy of the Lease and claimed she did not know the whereabouts of the original.

The Agreement

[43] The factors negating the authenticity of the Lease are also present in the Agreement.

[44] The Agreement is also an undated, one-page document. It is purportedly a purchase and sale agreement and states, “Signed this day at 338 Daniel Street, Peterborough, Ontario.” As with the Lease, the signing date is also not identified.

[45] Both exhibits, the lease and the agreement are copies and not the originals. Cotnam testified that she has no knowledge of the whereabouts of the originals. Both exhibits are witnessed by a “Brian Sloan” and Brian Sloan is not available to testify.

[46] As with the Lease, Cotnam testified that she does not know who drafted the Agreement and similarly, that it was Cornell who introduced the Agreement to her. As mentioned, Cornell is not available to testify.

[47] Cornell is identified as “Randall Cornell” in both the Lease and Agreement. As I previously reviewed, Jensen testified that her nephew was known as Randy Cornell. I accept her evidence on this issue.

[48] The Lease is missing the signatures of all individuals who were parties to the tenancy. In the Agreement, “Randall Cornell” is identified as a party, but his signature is absent.

[49] In the Agreement, the signature “Donna Jensen” is noted at the bottom. At paragraph 16 of the Agreement, it reads, in part: “Donna Jensen agrees that She has been given authority by Her nephew to also act on His behalf at this signing.”

[50] Jensen testified that she had no knowledge of the Agreement until the present litigation ensued in 2015. She further testified, as she did with the Lease, that she was never a party to the Agreement. She denied affixing her signature and also denied that she had acted on her nephew’s authority to ratify the Agreement. Jensen testified that from 1994 to the present, Cotnam has lived at the Property as a tenant and that the tenancy was governed by a verbal arrangement.

[51] Moreover, Jensen testified that from its inception, the Property was held for long-term development purposes and that these development plans are ongoing. The development plans were never set aside by the alleged Agreement that she neither negotiated nor had prior knowledge of.

[52] Jensen’s evidence on this issue was again consistent both in examination-in-chief and in cross-examination. Her evidence was not impeached. I accept her evidence.

[53] Cotnam testified that Burstein was actively involved in the negotiations of the Agreement. She testified that Burstein identified himself as a lawyer and gave her his business card. She has since lost the business card.

[54] Paragraph three of the Agreement, in part, reads as follows: “This document will reflect the discussions reviewed from audio tape conversations regarding the purchase and sale of one 338 Daniel Street, Peterborough, Ontario. Canada from Donna Jensen in Trust to Wendy E. Cotnam”. Cotnam testified that she lost the audio tapes.

[55] Burstein testified, as did Jensen, that he had no knowledge of the Agreement. He also testified, as did Jensen, that Cotnam was never a purchaser of the Property, but a tenant who resided there on a verbal tenancy arrangement.

[56] He also testified that he had no involvement in the negotiations of the Agreement and no knowledge that the Agreement had been drafted. He was also not familiar with a “Brian Sloan.”

[57] Burstein denied he ever held himself out as a lawyer to Cotnam either by words or documentation. He testified that the first time he met Cotnam face-to-face was in 2011 and not 2003, when according to her, the Agreement was finalized.

[58] Burstein testified that originally he represented the Jensen family originally as a friend and thereafter as a Chartered Accountant. He confirmed Jensen’s evidence that the Property was held as an investment for future development and that there was never a negotiation for its sale to Cotnam.

[59] He acknowledged that a phone call with Cotnam took place sometime in 2003 in which Cotnam expressed an interest in buying the Property. He advised Cotnam that the Property was not for sale because it was being held for future development. Although Cotnam pressed him for a sale price, he refused to provide one.

The Letter

[60] Cotnam introduced a letter (Exhibit 33: the “Letter”) to challenge Burstein’s evidence that the Property was never sold to her. Cotnam testified that Cornell gave her a copy of the Letter, but that she does not recall when.

[61] Dated November 26, 2003, the Letter is allegedly from Burstein to Jensen referencing the need for future building permits being included as part of the Agreement of Purchase and Sale. In part, the letter reads: “This was an oversight and should have formed part of the agreement of purchase and sale with The Cotnams as we may have anticipated rebuilding would occur.” The Letter bears a signature of David Burstein. However, it is not formatted on Burstein’s business letterhead as set out in other correspondence from him (Exhibits 32, 35, 37). Burstein denied sending the Letter to Jensen.

[62] Jensen had no recollection of receiving the Letter. It was addressed to her at 200 Elmdale Road, Peterborough. She testified that in November 2003 she was no longer residing at that address, but was residing in Toronto. She acknowledged that she previously lived at Elmdale Road but that she had moved after her mother died.

[63] The Letter begins in part with the following sentence: “Further to O ur discussions on May 22 nd ” (emphasis added). As it will be reviewed later in this judgment, the capitalization of “Our” in the Letter is pertinent to the defendants’ position that Cotnam fraudulently created the Lease, Agreement and Letter.

The Emails

[64] In Cotnam’s Statement of Claim, at paragraph 13, she contends that she has been the beneficial owner of the Property since April 1, 2003. Accordingly, she and the defendants have treated the Property as belonging to her. This evidence is inconsistent with emails between Cotnam and Burstein after 2003. Those emails deal with non-payment or late payment of “rent” by Cotnam consistent with a tenancy arrangement only.

[65] Exhibit 36B is an email dated September 14, 2011, from Burstein to Cotnam. It reads, in part, as follows: “Hi, further to our conversation last week, I did confirm with donna that you brought the rent up to-date….I called to advise you that your rent has been the same since you have been there and is now being increased to $850/month effective October 1 st ” (emphasis added).

[66] Exhibit 36A is an email dated October 4, 2012, from Burstein to Cotnam and reads, in part, as follows: “Further to our telephone conversation last Friday, here is a copy of the email, advising you the rent was increased October 1, 2011. You are $1,200 in arrears and would appreciate you making the payment promptly. You know the house would easily rent for $1,000 per month and your rent had not been raised in over 7 years” (emphasis added).

[67] Exhibit 7 is an email dated November 6, 2012, from Burstein to Cotnam and reads, in part, as follows: “Wendy, Donna tells me you have not paid the rent November 1 st . Nor have you replied to my email from October 4 th . Please let me know immediately what you are doing or I will have someone attend to changing the locks on the doors” (emphasis added).

[68] Cotnam responded, “Donna may want to check again as the $750.00 fee has been paid as per My agreement”.

[69] Burstein responded, in part: “Wendy….THIS IS YOUR RENT …YOU DONOT HAVE ANY OTHER WRITTEN AGREEMENT…if you DO NOT MAKE ARRANGEMENT TO PAY THE ARREARS I WILL START EVICTION” (emphasis added).

[70] Exhibit 8 is an email from Burstein to Cotnam dated June 3, 2015, and reads as follows: “Wendy you continue to pay $750 per month even though we gave you notice September 2011 that your rent was increased to $850. You are now $4,500 in arrears…unless I hear from you within 10 days we will evict you from the home” (emphasis added).

[71] Cotnam testified that Burstein privately advised her to ignore the rent demands as he was only complying with Jensen’s orders because Jensen was in financial difficulty. Further, she testified that he described Jensen as being mentally unstable and “nuts” and therefore her demands were to be ignored.

[72] I find Burstein to be a hardnosed businessman focused on the bottom line. This is borne out when he testified that as a landlord he demanded that the full cost of future property maintenance and improvements to the property be at the expense of the tenant for the entirety of the lease.

[73] I accept Burstein’s evidence that he did not have private conversations with Cotnam for her to ignore his email demands that she pay outstanding rent or arrears. Any such conversations would be wholly inconsistent with his hard-driving business tactics.

[74] Contrary to Cotnam’s contention, I accept Jensen’s evidence that she did not have financial difficulties. Moreover, having listened to and observed Jensen testify, she did not exhibit any sign of mental instability.

Rent Tax Credits

[75] In cross-examination, copies of Basil’s Canada Revenue Agency Assessments were produced, providing a summary of rent claimed (Exhibit 72, Tab 19). The tax credits were claimed annually commencing in 2005 through to 2015. In each year a tax credit of $9,000 was claimed for rent paid. The $9,000 rent credit claimed is consistent with monthly rent payments of $750.

[76] Mirroring Basil’s rent tax credit, Jensen’s tax returns from 2003 through to 2012 reveal that Jensen claimed annual rental income of $9,000 (Exhibits 47-57, 59, and 60).

[77] Cotnam testified that her accountant advised her that because the Agreement was a “rent to own agreement” the $750 monthly payments over 12 years was a tax credit properly claimed by the payor.

[78] Cotnam’s evidence is inconsistent with her answers at her Examination for Discovery on August 8, 2016, at page 256, at questions 1931-1934. The following exchange took place:

Q. Has he [Mr. Cotnam], since 2002, claimed anything on his Ontario tax -- property tax credit returns? A. No. Q. All right. So from 2003 to present nobody has ever claimed an amount as the owner of the property on their Ontario property tax credit -- A. No. Q. – portion of their returns? A. That -- that was, actually, against the law, not something I -- Q. No, nobody—You – You’ve never done that and Mr. Cotnam has never done that? A. No.

[79] Cotnam did not call her husband as a witness. Nor did she call her accountant as a witness. On this issue, Cotnam’s evidence is both self-serving and misleading.

Unique Writing Style

[80] As previously reviewed, Cotnam testified she does not know who drafted the Lease or the Agreement, but that it was Cornell who produced them to her. She also testified that the Letter was given to her by Cornell. All three documents intermittently capitalize possessive pronouns or adjectives throughout. The following are some examples.

[81] In the Lease at paragraph two, the document reads in part, “As per discussions held at M y home…the following rental agreement has been established” (emphasis added). Moreover, at paragraph ten, in part reads, “It is agreed that at H er choice Wendy Cotnam may repaint the interior” (emphasis added).

[82] Similarly, in the Agreement at paragraph three, the document reads in part, “Further to this agreement between Wendy Cotnam and Donna Jensen in Trust, Donna’s nephew Randall Cornell who holds and interest conveyed to H im at H is M others passing” (emphasis added).

[83] Again, in the Agreement at paragraph 12, the document reads in part, “Donna Jensen has agreed to the purchase price of $120,000.00 for the above property and will receive payment at H er request of $750.00 over a 160 month period” (emphasis added). Further, at paragraph 16, it reads in part, “Donna Jensen agrees that S he has been given authority by H er nephew to also act on H is behalf at this signing” (emphasis added).

[84] The Letter, which was introduced by Cotnam, also incorporates the same writing style. The document reads, “Further to O ur discussions” (emphasis added). The Letter, purportedly sent by Burstein to Jensen, corroborates Cotnam’s submission that the defendants entered into an Agreement to sell the Property to her. However, there is no evidence that the writing style in the Letter is also used by Burstein. Indeed, the only evidence of this writing style is that it is used by Cotnam.

[85] In Examination for Discovery on August 8, 2016, at pages 70-71, at questions 545-556, Cotnam was questioned whether she capitalizes pronouns in her written text. The following exchange took place:

Q. All right. And I’m going to put to you that you have a tendency in the documents we’ve seen to capitalize things like pronouns. A. M’hm. Q. Does that -- Is that a habit of yours, words like “our” and “his’ and “her” and “my”, things like that? Do you agree that that’s the habit that you have when you write -- write things? A. No, I don’t think so. Q. You -- There wouldn’t be any documents in here where you’ve written -- where you’ve capitalize all your pronouns? A. I don’t know. Q. You don’t know? A. No. Q. Well, is there anybody in here that knows your writing better than you? A. That knows my writing better than me? Q. Right. A. No, there would be nobody in here that knows my writing -- Q. Okay. A. – better than me. Q. So if I put it to you that you tend to capitalize things like “his”, “her”, “our”, “my”, you would be the one that would know if that’s true or not, is that fair? A. M’hm. Q. All right. Can you tell me if that’s true or not, you tend to do that? A. No, I don’t think so. Q. All right. And if there’s documents like that then those documents wouldn’t be your documents? A. Oh, I’m not saying that. Q. Okay. So you may do that? A. Oh, yeah. Q. All right. And you may do that frequently? A. I don’t know. I can check all my Facebook posts to see if they do.

[86] At trial, counsel for the defendants argued that the capitalization of pronouns throughout the Lease, Agreement, and Letter is indicative that Cotnam manufactured and introduced fraudulent evidence to support her claims at trial.

[87] Cotnam denied counsel’s suggestion. She testified it was the defendants who have committed a fraud by conspiring to deprive her of title to the Property. She testified that the defendants were aware of her habit of capitalizing pronouns from as early as 1994 and deliberately drafted the Agreement incorporating her distinctive style to contend it was she who drafted it without their knowledge and concurrence. Further, she contends that by not registering the Agreement on title they could argue, as they did, that there was never an agreement in the first place.

[88] There was no evidence introduced at trial to support this contention or that the defendants were ever aware of Cotnam’s unique writing style in order to fabricate the Agreement.

[89] In addition, the Lease, which predated the Agreement, incorporates the same writing style. Cotnam testified that she does not know who drafted the Lease. The defendants deny drafting the Lease. For reasons previously reviewed, I accept the defendants’ evidence on the issue.

[90] On all the evidence I find the defendants did not enter into an Agreement to sell the Property to Cotnam. I find that all three documents that were introduced by Cotnam to support her claims were fraudulently created by her.

[91] Cotnam’s claim seeking beneficial ownership and the transfer of title to the Property to her is therefore dismissed.

UNJUST ENRICHMENT

[92] Cotnam introduced two exhibits to support her claim of $500,000 for unjust enrichment because of improvements she made to the Property since 1994. Exhibit 30 is a building permit application, dated September 11, 2003, to build a deck at 338 Daniel Street. Exhibit 31 is an application on the same day to the Township with accompanying drawings to construct the deck and an accompanying sunroom.

[93] Cotnam also introduced Exhibit 69, a photo of the Daniel Street home, and testified that after 2003 she and her husband at their expense painted and enlarged the home. She testified those costs were $35,000 to $70,000.

[94] Cotnam filed no receipts for work completed and costs incurred for enlarging the home by the construction of a deck and sunroom. On the evidence, it is uncertain whether those projects were ever completed.

[95] In argument, Cotnam submitted that for 15 years she and her husband have invested much time, energy, and effort into the Property. They have dealt with all the repairs and put the entire acreage to its best use by manicuring the walking paths and have grafted new life into the fruit trees on site.

[96] Those submissions were equally not supported by any evidence from any other source including her husband, who she elected not to call at trial. Accordingly, Cotnam’s claim for unjust enrichment is also dismissed.

CONCLUSIONS

[97] In large part, this is a fact-driven case. Assessment of the credibility and reliability of the witnesses and the documentation cited in support of their evidence requires careful assessment. As it was held in R. v Morrisey, 1995 3498 (ON CA), 97 CCC (3d) 193 (Ont. C.A.), at 205:

Testimonial evidence can raise veracity and accuracy concerns. […] When one is concerned with a witness’s veracity one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony.

[98] I find Cotnam’s evidence raised significant credibility and reliability concerns. Standing alone, Cotnam’s evidence was patently self-serving and misleading – particularly in her introduction of the Lease, Agreement, and Letter – which I find were fraudulently created by her. Where conflicts arise between Cotnam’s evidence and the evidence of the defendants, I accept the evidence of the defendants. For all the aforementioned reasons, both claims are dismissed.

[99] If the parties are unable to agree on costs, they may make written submissions. First, counsel for the defendants shall deliver submissions by October 26, 2018. Then within 15 days of receipt of those submissions, Cotnam and or counsel on her behalf shall deliver submissions. Within five days of receipt of those submissions, counsel for the defendants may deliver a brief reply. All submissions, with proof of service, are to be filed with the trial coordinator in Oshawa. The trial coordinator may accept a party’s submissions, however, if not completed on time, only with the consent of the other party. When the filing of submissions is complete, the trial coordinator shall forward all of them to me, as one package, for consideration.

The Honourable Mr. Justice Alexander Sosna Released: October 2, 2018