COURT FILE NO.: 14-60859

DATE: 2019/09/09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Jill C. Nimchick and Susan J. Nimchick

Plaintiffs

– and –

Bruce Craig Nimchick, Irene Nimchick and Justin Craig Ross Nimchick

Defendants

Counsel:

Ryan Flewelling, for the Plaintiffs

Robert J. De Toni, for the Defendants

HEARD: January 21, 22, 23, 24, and 25, and March 4, 5, 6, 7, and 8, 2019

REASONS FOR JUDGMENT

RYAN BELL J.

Overview

[1] The central issue in this case is whether Jill Nimchick, the matriarch of the Nimchick family, intended to make a financial gift of £67,000 (“the Funds”) to her son Bruce, his spouse Irene, and their son Justin, in the summer of 2013.

[2] Jill and her daughter Susan say that Jill did not intend to gift the Funds to the defendants. They assert that Bruce took advantage of Jill’s vulnerable state and devised a plan to financially exploit his mother for his own benefit, and for the benefit of his spouse and their son. Jill and Susan also maintain that the Funds were owned by Susan, and that they were not Jill’s to gift.

[3] Bruce, Irene, and Justin deny that they misappropriated the Funds or engaged in any wrongful conduct. They contend that Jill is attempting to retract a gift she now regrets having given.

[4] Over ten days of trial, I heard testimony from each of the parties. Numerous documents were tendered into evidence. The plaintiffs also relied on a number of read-ins from the examinations for discovery of Bruce and Justin. On the evidence presented at trial, I conclude that the Funds were Jill’s to gift. I also conclude that Jill gifted the Funds to Bruce and to Justin, and that Bruce did not unduly influence Jill to make the gift.

[5] The action is therefore dismissed.

The Evidence

The Nimchick family and the NatWest account

[6] Jill and her husband had four children: Bruce, Paul, Susan, and Susan’s twin, Ross. Susan has lived with Jill for many years in their home on James Street, in Chicopee, Massachusetts. Susan and Jill are very close. Since Jill’s accident in June 2013, Jill has been totally dependent on Susan.

[7] Bruce, the eldest of the siblings, has lived in Canada since 1968. Prior to the dispute, Bruce’s relationship with his mother was “ok” and his relationship with Susan was “amicable.” Bruce and Irene have been married for many years. Irene described Jill as “very generous to us.” Irene and Jill did not discuss money matters.

[8] Justin testified that he had a good relationship with his grandmother, Jill, before the events giving rise to these proceedings. Susan was Justin’s “closest confidante.”

[9] As twins, Susan and Ross shared a special bond. Sadly, Ross passed away in 1989. Shortly before his death, Ross signed documentation to change the primary beneficiary of his life insurance from Jill to Jill and Susan as joint primary beneficiaries. However, the life insurance proceeds of $250,000 were paid solely to Jill, as confirmed by the completed estate tax return.

[10] In 1993, Jill purchased a house in Whittington, England. The funds for the purchase came from a NatWest account into which Jill had deposited the life insurance proceeds. Both Jill and Susan testified that Jill had tried, unsuccessfully, to open the NatWest account solely in her own name. When she was told by NatWest that she could not do so, Jill opened an account jointly with Susan, who already had an existing NatWest account.

[11] Jill’s name was listed first on the account statements for the NatWest account. Susan’s name appeared underneath Jill’s name. On cross-examination, Susan testified that this meant the account belonged to Jill, and Jill was free to use the money in the account as she wished. Jill’s testimony was to the same effect.

[12] In 2001, Jill sold the Whittington property; however, she continued to travel back to England in the years that followed.

[13] In January 2002, Susan prepared a document, signed by both Jill and Susan, entitled “Jill Nimchick Understanding and Agreement with Susan Nimchick.” According to this document, Jill agreed to pay Susan 50 per cent of the household bills, with the funds to come from Jill’s remaining share of the insurance proceeds. As Susan acknowledged on cross-examination, the document does not state that Susan owned all of the insurance proceeds. Susan also agreed that even after the 2002 document, Jill continued to use the NatWest account for her own purposes.

Jill’s accident

[14] In June 2013, Jill had a serious fall at her home in Chicopee and was admitted to hospital. Her recuperation and rehabilitation lasted approximately seven months.

[15] The same day that Jill fell, Susan collapsed at the hospital. As Jill’s primary care giver, Susan understandably needed a break. She agreed to go on a transatlantic trip to England with her brother Paul in late July 2013 aboard the Queen Mary 2. The Queen Mary 2 is Jill’s favourite ship. Before she left, Susan told Jill about the voyage. Jill was very upset; she testified that had their roles been reversed, she would not have taken the trip.

[16] On July 22 or 23, Bruce, Irene, and Justin travelled to Massachusetts. Irene and Justin visited a few days before returning home on July 26. Susan left for England on July 27. Bruce stayed on in Massachusetts to help Jill who unfortunately, by this point in time, had been readmitted to hospital.

Justin’s name is added to the NatWest account

[17] In late August 2013, Justin’s name was added to the NatWest account. The parties disagree as to the circumstances under which and the reason why Justin was added to the account.

(a) Bruce’s testimony

[18] While he was in Massachusetts, Bruce stayed at the house on James Street, in Chicopee. He visited with Jill at the hospital each day. He described Jill as “devastated” about Susan’s trip.

[19] Jill was worried about dying. She told Bruce about a letter inside her security box at the house on James Street which spelled out what she wanted done with her remains following her death. Bruce was unable to locate the letter, so Jill had him prepare a new letter which she signed on August 6. It was at this time that Bruce first learned about the NatWest account.

[20] Bruce testified that one day, “out of the blue,” Jill told him that she wanted him to be added to the title to the house on James Street. Bruce declined because it would “not be fair to Susan.” Jill next offered him her car. Once again, he refused. Then, Jill suggested that Bruce’s name be added to the NatWest account in order to pay for Justin’s student loans “in full.” Bruce, thinking that it would please his mother, suggested that Justin be added to the account instead of him. Bruce and Jill had discussions over the course of about a week. The gift was to be in the amount of £67,000, and was intended for Justin (to pay his student loans) and for Bruce. Bruce testified that Justin’s student loans at the time were approximately $28,000 or £17,000. Jill was very excited about the gift.

[21] In order to have Justin added to the NatWest account, Bruce prepared an authorization letter to NatWest for Jill’s signature. Jill signed the authorization letter on August 6, 2013. In the letter, NatWest was asked to notify Jill, Susan, and Justin at their respective addresses once the change to the account was made.

[22] As it turned out, NatWest required two additional documents: an “Add a Third Party to an Account” form and a “Third Party Mandate” form.

[23] Bruce testified that he told Justin about Jill’s gift on August 17. He may have also mentioned it to Irene. In her testimony, Irene said that Bruce told her in August about his mother’s generosity.

[24] On August 18, after Susan had returned home, Bruce headed back to Ottawa. Bruce and Justin returned to Chicopee a few days later. Bruce testified that Justin signed the NatWest forms on August 23 at the house on James Street, and Susan and Jill signed the documents the same day at the hospital. Bruce testified that there was little in the way of discussion – “Sue did what my mother told her to do.” There was, according to Bruce, no discussion on that occasion about why Justin was being added to the account.

[25] On August 23, Bruce attended at Citizen’s Bank to have them verify Justin’s driver’s license and passport information. While he was there, an employee mentioned that NatWest was “technically bankrupt” in 2008. When Bruce went to the hospital to have the forms signed by Jill and Susan, Bruce passed on to Jill that NatWest was not experiencing any problems in 2013.

(b) Jill’s testimony

[26] Jill testified that while she was in the hospital and before Susan returned from her trip, she did not discuss with Bruce Justin’s university education costs, tuition fees, or student loans. Jill was trying to save $16,000 “in her social security” to give to Justin as a surprise on his university graduation. She acknowledged that she was not going to be able to save this amount and added “but we weren’t going to touch Ross’ money.”

[27] Jill denied signing the August 6 letter of direction regarding her remains.

[28] Jill wanted to add Justin to the NatWest account so that after she died, he could help Susan to carry out Jill’s wishes for her remains: she wanted her remains to be scattered at her childhood home in England. Jill testified that she first asked Paul, but Paul declined to be added to the account. Jill then spoke to Bruce about adding Justin’s name to the account. She testified that she told both Bruce and Susan that she wanted to add Justin to the account. Jill acknowledged her signature on the required NatWest forms, but she did not remember signing the documents in her hospital room with Bruce and Susan being present.

(c) Susan’s testimony

[29] Susan returned home from her trip with Paul on August 15, 2013. She described a “horrific” family meeting with the hospital staff on August 16 at which Bruce was “yelling at the staff.” Following the meeting, Bruce and Susan were together with Jill in Jill’s hospital room. Jill told Susan that she, Jill, wanted to add Justin to the NatWest account so that he could help Susan when the time came to scatter Jill’s ashes. Susan agreed because “this is what mom wanted.” Susan did not ask Bruce or Jill to explain further. Susan testified that while they were in Jill’s hospital room, Bruce presented her with the required forms to add Justin to the NatWest account. Susan signed the forms, but she dated them August 23, 2013 because Bruce told her that was the date. Outside in the parking lot, Susan accused Bruce of “blindsiding her.”

(d) Justin’s testimony

[30] Shortly before Bruce returned to Ottawa in mid-August, Bruce called Justin to tell him that “Gran wanted to add me to the NatWest account.” Justin believes that his father also told him that Jill wanted to pay off his student loans.

[31] When Justin returned to Massachusetts with Bruce in late August, Jill told Justin that she wanted him to have a fresh start when he graduated and to be “debt free.” Justin did not discuss with Jill why he was being added to the NatWest account.

The calls with NatWest

[32] Bruce sent the forms signed by Jill, Susan, and Justin to NatWest. Thereafter, Justin was added to the NatWest account.

[33] In mid-August, Justin set up an HSBC GBP account so that the Funds could be transferred into it.

[34] On October 4, Bruce completed a “Sending a Payment Abroad” form in the amount of £67,000 which Justin signed. Bruce sent the Payment form to NatWest, together with a letter giving NatWest contact information for Jill and Susan. The words “student loan” appear in the “message to beneficiary” box on the Payment form. On October 5, Bruce emailed Justin and provided him with copies of the Payment form and the letter containing the contact information. Bruce copied Susan on his email to Justin.

[35] On October 7, Bruce sent a fax to NatWest. He requested that they phone Jill and provided NatWest with Susan’s telephone numbers. On October 8, Bruce sent a second fax to NatWest and provided them with times when they could reach Jill by phone. In his second fax, Bruce stated, “[Jill] also requests that you verify with Susan Nimchick.”

[36] The parties disagree about what was said in this time period.

(a) Bruce’s testimony

[37] Bruce told Jill about the transfer of the Funds before she received the first call from NatWest. He testified that when NatWest first called Jill, Jill forgot what was happening. Jill asked Bruce what she should say when NatWest called back. He told her to tell them to honour the wire transfer. Bruce then sent his second fax to NatWest. Jill wanted NatWest to verify things with Susan as well so he included Jill’s request in his fax. In Bruce’s words, Jill was “very eager” to transfer the Funds.

[38] Bruce denied that he told Jill that NatWest was “going under.”

(b) Jill’s testimony

[39] Jill testified that a woman from NatWest called her on October 7. Bruce had told her the day before that NatWest would be calling her. NatWest told her that Justin wanted to withdraw the Funds from the account. Jill responded “no, definitely not.” Bruce called Jill in the afternoon. Bruce told her that NatWest was “going under” and that she had better get the money out of the account. Jill testified that Bruce had been telling her this “all along.”

[40] Jill wrote down what Bruce told her to say to NatWest when they called back. Her notes were made an exhibit at trial. They read in part: “[p]lease honour the request for the wire transfer” and “mail me an up to date of my bank statement please when the transfer has gone through.” Jill’s notes do not refer to NatWest going under.

(c) Susan’s testimony

[41] Susan testified that NatWest called the house on James Street on October 7 and asked to speak to Jill. Susan provided NatWest with Jill’s number at the hospital. Jill subsequently called Susan and reported that NatWest had called her about Justin trying to withdraw the Funds from the NatWest account. Susan said she was in the room with Jill when Bruce called Jill. Bruce had told Jill that NatWest was in trouble. Jill told Bruce to get all of the Funds down to her and Bruce agreed.

[42] That evening, Susan called Bruce. He told her he was transferring the money because NatWest was in trouble and that “I don’t want anything.” Susan did not question Bruce about NatWest because “I trusted Bruce.” Bruce agreed to send to Jill, £50,000, with the rest in U.S. dollars.

The Funds are transferred

[43] On October 11, the Funds were transferred from the NatWest account to Justin’s HSBC GBP account. £66,000 was then transferred from Justin to either Bruce by bank draft (according to the defendants), or to Irene by wire transfer (according to the plaintiffs). Regardless, the Funds were ultimately transferred to a joint USD account and a joint CDN account, both held by Bruce and Irene. I reject the plaintiffs’ suggestion that the defendants have “concocted” the bank draft explanation to “conceal the extent of Irene’s involvement” in the movement of the Funds. There was documentary evidence adduced at trial that the Funds were ultimately transferred to the two joint accounts. Irene’s involvement was not concealed. Whether the Funds were moved out of Justin’s account by wire transfer or by bank draft is of no moment to my determination whether Jill intended to gift the Funds to Justin and to Bruce.

[44] NatWest sent a “payment debit advice” to Jill and Susan. The payment details refer to “Student loan.” Susan testified that she did not see NatWest’s confirmation of the transfer until March 2014, after she and Jill wrote to NatWest seeking the information.

[45] Justin’s admission that he did not ask Jill or Susan about whether they knew or agreed with the Funds being transferred is not surprising. Bruce sent Justin copies of the letter to NatWest and the completed Sending a Payment Abroad form. Susan was copied on Bruce’s email to Justin and was provided with copies of the attachments.

[46] Jill testified that around the time the Funds were transferred out of the account in October, she discussed with Bruce that he was going to “send down to her”, from the NatWest account, $50,000 (U.S.) and £17,000. She agreed on cross-examination that she did not instruct Bruce to transfer the money to her account in the United States.

[47] In late October 2013, Susan asked Bruce to send her details about Justin’s student loans. Bruce sent Susan the information she requested.

The second transfer of funds

[48] In late October 2013, there was a second transfer of £46,500 from the NatWest account.

[49] Bruce prepared a second Sending a Payment Abroad form, this one in the amount of £46,500. Justin signed the form. Bruce then sent the form, together with a letter providing Jill’s and Susan’s contact information, to NatWest.

[50] Bruce set up a joint HSBC GBP account with Irene. On October 31, these funds were transferred from NatWest to Justin’s HSBC GBP account. On November 12, these funds were transferred to Bruce’s and Irene’s joint HSBC GBP account.

[51] The parties disagree about the reason for the second transfer of funds.

(a) Bruce’s testimony

[52] Bruce testified that Jill wanted Bruce to hold these funds for her in Canada. She did not tell him why she wanted him to hold the funds for her. Jill wanted about £5,000 to remain in the NatWest account.

[53] Bruce denied telling Jill that NatWest was going under.

(b) Jill’s testimony

[54] According to Jill, Bruce told her that she should get the rest of the funds out of the NatWest account because NatWest was going under. She wanted to leave about £5,000 to £6,000 in the account. Jill did not recall having a telephone discussion with NatWest regarding the second transfer. Jill acknowledged that she could have had these funds transferred to either her account or Susan’s account. She did not have any discussions with Justin about either transfer until February 2014 when she asked for the money back.

(c) Susan’s testimony

[55] Susan first heard about the second transfer in late October. She testified that Bruce told Jill NatWest was going under and they should get the money out of the bank.

The events of November 2013

[56] On November 4, 2013, Susan left on a second trip to England, again on the Queen Mary 2. Given Jill’s reaction to her first trip, Susan told Jill that she was travelling on business. This was not the case.

[57] Bruce arrived in Massachusetts before Susan left. However, Susan was clearly frustrated with Bruce: she testified that he “finally showed up to look after Jill” and that she had been expecting him much earlier.

[58] Although she was aware of the second transfer of funds in late October, Susan did not raise the issue with Bruce when he arrived in Massachusetts.

[59] While Susan was away, Bruce set up an account in Massachusetts and transferred approximately $9,000 into it. When Susan returned home on November 19, Bruce signed a series of cheques on the newly created account and gave them to Susan. Susan did not try to cash any of the cheques until March 2014.

[60] There is no evidence that any of the parties discussed either transfer of funds in November or December 2013.

Jill and Susan request that the Funds be returned

[61] Jill finally returned home in early January 2014.

[62] According to Bruce, in January 2014, after Jill had returned home, Susan threatened to leave. Susan vehemently denied making any such threat.

[63] Bruce testified that in mid-February, Susan requested that Bruce return £50,000; Jill and Susan testified that they asked Bruce to send all of the money back. On cross-examination, Jill acknowledged that she left it to Susan to get the money back. Bruce told Susan that he had used the NatWest funds to pay down his mortgage. Bruce agreed on cross-examination that this was not true, and that he told Susan this to get her to stop calling him about returning the money.

[64] Justin testified that in late February or early March 2014, Susan called him. Susan and Jill were worried that Bruce would not send the money to them. Justin told them he would speak to his father.

[65] Ultimately, Bruce transferred approximately $82,000 (U.S.) (approximately £50,000) to an account in Susan’s name.

[66] On March 20, 2014, Susan told Bruce that she was contemplating litigation. The next day, Bruce paid off Justin’s student loans.

The Issues

[67] The following issues were pursued at trial:

i. Were the Funds Jill’s to gift?

ii. Did Jill intend to make a gift of the Funds to the defendants?

iii. If Jill intended to make a gift, did Bruce exert undue influence over Jill?

iv. If there was a trust created, who is liable as trustee for breach of trust?

v. Did Bruce, Justin or Irene owe a fiduciary duty to Jill and/or Susan?

vi. Did Bruce make false representations to Jill to convince her to transfer the Funds?

Analysis

Issue 1: Were the Funds Jill’s to gift?

[68] I find that the Funds were Jill’s to gift. In reaching this conclusion, I rely on the following.

[69] First, the estate tax return reflects Jill as the beneficiary of Ross’ life insurance policy. Both Jill and Susan signed the return.

[70] Second, both Jill and Susan testified that Jill used the NatWest account as she pleased. This was true even after Jill and Susan signed the January 2002 document. Both Jill and Susan testified that the NatWest account was joint because Jill could not open one in her name alone. Susan was clear that it was Jill’s account because Jill’s name was listed first.

[71] Third, the NatWest account was not listed as an asset in Susan’s bankruptcy. I agree with the defendants that this is consistent with the account being Jill’s account and the funds in that account being Jill’s to use as she pleased.

[72] Fourth, Susan signed the documents adding Justin to the NatWest account because “this is what mom wanted.” Susan’s explanation is again consistent with the funds in the account being Jill’s to use in the manner she saw fit. Bruce testified that when Jill first offered the gift, he raised the issue of Susan also being on the NatWest account; Jill’s reply was that Susan would do what she, Jill, told her to do. Susan’s explanation is also consistent with Bruce’s testimony in this regard.

[73] Fifth, I find that Susan was aware of both the first and second transfers before they were made and that she did nothing to stop either. I do not believe her explanation that she did not open the attachments to Bruce’s October 5, 2013 email until a number of months later. It was inconsistent with the meticulous approach Susan appears to have followed in other aspects of her life. Her explanation was not credible. Susan’s conduct in not acting to stop the transfers is consistent with her own testimony that the NatWest account was Jill’s and the funds in it were for Jill to use as she wished.

[74] I place no weight on the April 11, 2014 document prepared by Susan and signed by Jill and Susan. The opening words to this document read: “I, Jill C. Nimchick, acknowledge that the money in our Jill Nimchick and Susan Nimchick NatWest account…had become and continues to be 100 per cent ownership of Susan Nimchick.” This document was created after Susan told Bruce she was contemplating litigation, and is at odds with the other documentary evidence to which I have referred, as well as Jill’s and Susan’s own testimony at trial.

Issue 2: Did Jill intend to make a gift of the Funds?

[75] I find that Jill intended to make a gift of the Funds to Bruce and to Justin.

[76] A valid inter vivos gift – one that is intended to take effect during the lifetime of the donor – consists of a voluntary transfer of property to another person with the full intention that the property will not be returned. To establish a gift, one must show an intention to donate, sufficient delivery of the gift, and acceptance of the gift (Jansen v. Niels Estate, 2017 ONCA 312, 137 O.R. (3d) 709, at para. 40; Foley v. McIntyre, 2015 ONCA 382, 125 O.R. (3d) 721, at para. 25, citing McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401). In this case, the requirements of delivery and acceptance are not in issue.

[77] When a parent gratuitously transfers property to an adult child, the law presumes that the child holds the property on a resulting trust for the parent. The onus rests on the adult child to rebut the presumption by proving the contrary intent on the balance of probabilities. The trial judge must begin her inquiry with the presumption and then weigh all of the evidence in an attempt to determine the parent’s actual intent at the time of the transfer (Foley, at para. 26; Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 44).

[78] Evidence of intention that arises subsequent to the transfer must be relevant to the intention of the transferor at the time of the transfer. In assessing what weight is to be given to post-transfer evidence, the trial judge must guard against evidence that is self-serving or that tends to reflect a change in intention (Pecore, at para. 59).

[79] Weighing all of the evidence, I find that the defendants have rebutted the presumption of a resulting trust. I find that Jill transferred the Funds with the intention that they not be returned.

[80] The family dynamic that existed prior to and at the time the Funds were transferred is consistent with Jill intending to gift the Funds to Justin (to pay off his student loans) and to Bruce. Prior to the issues that gave rise to the action, the parties had an amicable relationship. Bruce, Irene, and Justin saw Jill a couple of times each year, and they often spoke on the phone. They saw Susan when they visited with Jill in Massachusetts. There was evidence that Jill had made gifts of money and other items to the defendants in the past. Justin had a good relationship with his grandmother and a very close relationship with his aunt. Jill herself testified that she wanted to give Justin $16,000 at the time of his graduation from university because “he is my only grandchild.” In Justin’s words, Jill wanted Justin to be “debt free” when he graduated.

[81] There is no dispute that Jill was devastated by Susan’s decision to go to England on the Queen Mary 2. There was evidence that Jill had tried to press other gifts on Bruce, including adding him to the title to the house on James Street, which she and Susan own jointly. This evidence, too, is consistent with Jill intending, at that moment, to gift the Funds to Bruce and Justin. In addition, by the time the Funds were transferred, it was clear that Jill would not be able to attend Justin’s graduation. There was also no evidence that Jill would have been able to save $16,000 from her social security to gift to Justin.

[82] I prefer Bruce’s testimony to that of Jill as to their discussions at the hospital in July and August 2013, and thereafter. Bruce was clear, consistent, and candid in his testimony about what he and Jill discussed. He was not shaken on cross-examination. He stated candidly that “we took the money” because they thought that Jill was dying. Contrary to the plaintiffs’ contention, I do not infer from Bruce’s choice of words that the defendants misappropriated the money or took the money under false pretences. Bruce’s gratuitous comment that Susan forged some of the cheques has no bearing on the matters I must determine. His suggestion that Susan must have altered an email to show him as a bcc’d recipient was the result of his evident frustration that he had not received certain emails that Susan had addressed to herself. His remark, although intemperate, does not impact adversely on his credibility.

[83] By contrast, Jill’s memory failed her several times during her testimony. For example, she did not remember signing the NatWest forms in her hospital room when Bruce and Susan were both present. She acknowledged her signature on other documents, but she did not have a specific recollection of having signed those documents.

[84] There were significant discrepancies between Jill’s testimony at trial and her evidence on discovery. These discrepancies call into question the reliability and credibility of Jill’s testimony. For example, Jill testified at trial that Bruce had been telling her all along that NatWest was going under. However, Jill failed to mention Bruce’s alleged misrepresentations at discovery. And, while Jill testified that Bruce told her that NatWest was going under and that she made notes of what Bruce told her to say to NatWest, Jill’s notes do not include anything about NatWest going under. I find that the plaintiffs failed to prove Bruce made the alleged statements concerning NatWest.

[85] Jill also maintained that she did not discuss Justin’s student loan situation with Bruce in the fall of 2013. She stated otherwise on discovery. I note as well the evidence that Bruce provided Susan with details about Justin’s student loans in late October 2013. In my view, the only credible explanation for Bruce and Susan to have been discussing Justin’s student loans at that time is that some of the Funds were to be used to pay off Justin’s student loans. This is consistent with the purpose of the transfer as stated on the Sending a Payment Abroad form, a copy of which was provided by Bruce to Susan.

[86] Justin testified that when he visited with Jill in August 2013 (when the NatWest forms to add Justin to the account were signed), Jill told him that she wanted to pay off his student loans. I accept Justin’s evidence in this regard. Justin gave his testimony in a consistent and forthright manner. He was not shaken on cross-examination. Justin’s testimony that Jill told him she wanted to pay off his student loans is consistent with her stated intention to give Justin $16,000 when he graduated.

[87] The plaintiffs contend that Justin’s evidence as to when he learned about being added to the account and the gift of the Funds – mid-August, and not by August 6 when Bruce had already obtained a bank-verified copy of Justin’s passport – impacts adversely on Justin’s credibility. I disagree. The timing of the opening of the HSBC GBP account is consistent with when Justin testified he learned about the Funds. And, even if Bruce did tell Justin that he was being added to the account earlier, nothing turns on the timing for the purpose of ascertaining Jill’s intention at the time of the transfer.

[88] I reject the plaintiffs’ contention that Bruce convinced Jill to add Justin to the NatWest account by making Jill believe it was to implement her plan to have someone assist Susan when the time came to scatter Jill’s remains in England. I do so for the following reasons. First, Jill’s stated reason for adding Justin to the account does not make sense. Susan was already on the account; Justin could assist her without being added to the account.

[89] Second, Jill’s testimony that she had previously asked Paul if he would agree to be added to the account was not corroborated. The alleged reason for adding Justin to the account is a crucial issue in this case. I draw an adverse inference against the plaintiffs as a result of Paul’s failure to testify at trial in this regard.

[90] Third, the suggestion that Bruce acted for a nefarious purpose is at odds with Bruce’s actions and the documentary evidence adduced at trial. Bruce’s conduct was consistent with Jill having made a gift of the Funds. He did not attempt to hide the fact that Justin was to be added to the account. Both Susan and Jill signed the required forms. Bruce provided Susan with a copy of the letter to NatWest and the Sending a Payment Abroad form. He sent faxes to NatWest requesting that they verify the transaction with Jill and he communicated Jill’s wish that they also verify the transaction with Susan. I find that Justin was added to the NatWest account to facilitate the transfer of the Funds. The plaintiffs’ argument that Bruce wanted to add Justin to the account as quickly as possible, and before Susan returned from England is not grounded in the evidence. The transfer itself did not take place until October 11.

[91] I do not find credible Susan’s testimony that she was “blindsided” by Bruce at the hospital and that she signed the forms the day after her return home but dated them August 23 because Bruce told her that was the date. Her story seemed designed for the singular purpose of casting Bruce in an unfavourable light and simply did not make sense.

[92] There were other aspects of Susan’s testimony that I do not find credible. For example, I simply do not believe that she did not open the attachments to Bruce’s October 5, 2013 email until several months later. Her failure to do so would have been inconsistent with what I observed to be her very meticulous nature. Her testimony in this regard seemed to be an attempt to justify the plaintiffs’ delay in asking for the return of any of the monies. Based on Bruce’s testimony, which I accept, I find that the plaintiffs asked Bruce to “send down” the £50,000 he was holding for them.

[93] Susan’s explanation of her March 10, 2014 email was also problematic and adversely impacted her credibility. In her email, Susan purported to record the conversations of October 8 and 9, 2013. The email reads in part:

Oswestry [NatWest] called Jill to tell her that Justin requested 67,000 pounds to be transferred from the account. Jill said no. Bruce called and Jill asked what was going on. Bruce said that nat west [sic] was no good and not in good shape any longer and therefore he was transferring 67,000 pounds. Jill said well then I want from the 67,000 pounds 50,000 and the rest mom will be used towards Justin’s education.

[94] In an effort to explain away the last sentence of her email – which contradicted her testimony at trial – Susan said that she was interrupted in the middle of writing the email and came back to complete it. Susan’s explanation does not make sense. By the time she wrote this email, the dispute between the parties had arisen. I do not accept that Susan would have been so careless with what she put down in writing. I reject her purported explanation as a complete fabrication.

[95] I have already found that the plaintiffs failed to prove Bruce made the alleged statements about NatWest going under. Susan is well-educated. In my view, it is simply not credible that she would have taken statements about a bank’s financial stability (or lack thereof) at face value without conducting her own due diligence. The story lacks any air of reality.

[96] Then there is the fact that neither Jill nor Susan requested the return of any of the transferred funds until February 2014, four to five months after the transfers were made, and only after Jill had returned home from the hospital. Susan did not attempt to cash any of the cheques left by Bruce in November 2013 until March 2014. I find that Jill and Susan did not act because the Funds were intended as a gift to Bruce and to Justin. Jill changed her mind about the gift only after she was home from the hospital.

[97] In summary, I find that at the time the Funds were transferred, Jill intended to make a gift to Justin to pay off his outstanding student loans, with the balance of the Funds to go to Bruce to be used as he wished.

Issue 3: Did Bruce exert undue influence over Jill?

[98] When the potential for dominance inheres in a relationship, the transferee must establish that the gift was the result of the transferor’s “full, free and informed thought” (Foley, at para. 28). In Morreale v. Romanino, 2017 ONCA 359, 30 E.T.R. (4th) 21, at paras. 22 and 23, the Court of Appeal summarized what the plaintiff must establish in order to trigger a presumption of undue influence:

In the case of voluntary gifts, whether the presumption of undue influence arises begins with an examination of the relationship between the parties and the first question to be addressed, in all cases, “is whether the potential for domination inheres in the nature of the relationship itself”…The test requires the trial judge to consider the whole of the relationship between the parties to see if there is the potential for domination, rather than looking for a specific act of coercion or domination.

[99] Having established the requisite type of relationship to support the presumption of undue influence, the second phase of the inquiry involves an examination of the nature of the specific transaction. In the case of gifts and bequests, the court’s concern is that “such acts of beneficence not be tainted”, therefore, it is enough “to establish the presence of a dominant relationship” (Goodman Estate v. Geffen, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353, 42 E.T.R. 97, at paras. 43-46).

[100] The test embraces those relationships that equity has already recognized as giving rise to the presumption, including that of parent and child or guardian and ward (Morreale, at para. 22). I was not referred to any cases that suggest equity has recognized the relationship of parent and adult child as giving rise to the presumption of undue influence on the basis that the potential for domination inheres in the nature of the relationship itself. In any event, looking at the whole of the relationship between the parties, it has not been established that the potential existed for Bruce to dominate Jill’s will. There was no evidence that Bruce dominated their relationship. Certainly, Susan was far closer to Jill than was Bruce. Accordingly, I find that the presumption of undue influence does not apply.

[101] Absent the presumption of undue influence, it is for the plaintiffs to prove that Bruce exerted undue influence over Jill. They have not. I am satisfied that the gift of the Funds was the result of Jill’s full, free, and informed thought.

[102] I do not accept the plaintiffs’ contention that there were “suspicious circumstances” surrounding the discussions between Bruce and Jill. The plaintiffs led no expert evidence at trial to demonstrate that Jill was not fully capable at the time. There was no evidence as to what medications she was taking while she was in the hospital or their possible effects. Jill consented to the various medical procedures while she was in the hospital. Although her memory at trial – six years after the events – proved to be frail, the weight of the evidence showed Jill to be a strong and capable woman. It was Jill who handled the Nimchick family finances, and it was Jill who bought and sold the house in Whittington, England.

[103] I agree with the defendants that Susan served as an additional protection against the risk that Jill could be unduly influenced. The fact that Susan, as a joint account holder, could have stopped the transaction from proceeding but did not, confirms that Bruce did not dominate Jill’s will.

Issue 4: If there was a trust created, who is liable for the breach of trust?

[104] Given my finding that the defendants have rebutted the presumption of a resulting trust, it is not necessary for me to consider this issue.

Issue 5: Did Bruce, Justin, or Irene owe a fiduciary duty to Jill or Susan?

[105] Certain categories of relationships are considered to give rise to fiduciary obligations because of their inherent purpose or their presumed factual or legal incidents. The Supreme Court of Canada has described these as per se fiduciary relationships (Perez v. Galambos, 2009 SCC 48, [2009] 3 S.C.R. 247, at para. 36). Per se fiduciary relationships, historically recognized, include solicitor-client, trustee-cestui qui trust, executor-beneficiary, agent-principal, director-corporation, doctor-patient, parent-child, and guardian-ward (Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 33).

[106] The plaintiffs contend that Justin was a trustee and that this case involves a per se fiduciary relationship. I do not agree. Justin was added to the NatWest account to facilitate the transfer of the Funds, a transfer to which Jill and Susan consented. Contrary to the plaintiffs’ contention, Justin was not reposed with a trust.

[107] As this case does not involve a per se fiduciary relationship I must consider whether there was an ad hoc fiduciary relationship between the parties, that is, one that arises out of the specific circumstances of a particular relationship (Perez, at para. 48).

[108] In Elder Advocates, the Supreme Court of Canada set out the elements which identify the existence of a fiduciary duty in cases not covered by an existing category in which fiduciary duties have been recognized. First, the evidence must show that the alleged fiduciary gave an undertaking of responsibility, express or implied, to act in the best interests of the beneficiary, and in accordance with the duty of loyalty imposed on her or him; the undertaking may be found in the relationship between the parties, in the imposition of responsibility by statute, or under an express agreement to act as trustee of the beneficiary’s interests (Elder Advocates, at paras. 30-32).

[109] Second, the duty must be owed to a defined person or class of persons who must be vulnerable to the fiduciary in the sense that the fiduciary has a discretionary power over them (Elder Advocates, at para. 33).

[110] Third, the claimant must show that the alleged fiduciary’s power may affect the legal or substantial practical interests of the beneficiary (Elder Advocates, at para. 34).

[111] There is no credible evidence that Jill and Susan were peculiarly vulnerable to Justin or to Irene. Justin was close to his grandmother and was her only grandchild. Susan was his closest confidante. However, neither was dependent on him. Irene, like Justin, saw Jill and Susan a couple of times a year. Irene testified that she and Jill did not discuss money issues. Jill and Susan were not dependent on Irene.

[112] There was no evidence that Justin or Irene gave an undertaking of any nature to act in the best interests of Jill and Susan either in relation to Justin being added to the account, or in relation to the transfer of the Funds from the account. Justin did not discuss the transfer of the Funds with Jill or Susan. Irene did not have any conversations with Jill or with Susan about the transfer of monies out of the NatWest account.

[113] The Funds were a gift from Jill to Bruce and to Justin. Accordingly, Bruce did not hold the Funds as trustee for Susan and Jill. Neither Jill nor Susan were peculiarly vulnerable to Bruce; indeed, the weight of the evidence is to the contrary.

Issue 6: Did Bruce make false representations to Jill?

[114] I have found that the plaintiffs failed to prove their allegations that Bruce made false representations to Jill that NatWest was going under in order to convince Jill to transfer the Funds or any of the monies. Jill’s testimony in this regard was unreliable and inconsistent with the documentary evidence.

Conclusion

[115] For these reasons, the action is dismissed.

[116] I would encourage the parties to try to resolve the issue of costs. If they are unable to do so, the defendants are to provide me with their written submissions by October 4, 2019. The plaintiffs are to provide me with their responding submissions by November 1, 2019. Submissions are to be a maximum of three pages, excluding any bill of costs. In the event I do not receive submissions within this timeframe, the parties will be deemed to have settled the issue of costs.

Madam Justice Robyn M. Ryan Bell

Released: September 9, 2019