Court File and Parties
COURT FILE NO.: 2684/17 DATE: 20190912
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Estate of Marjorie Mae Taylor, Plaintiff/Responding Party AND: William Alfred Taylor, Defendant/Moving Party
BEFORE: Tranquilli, J.
COUNSEL: Rod Refcio, Jordan Sharpe, Counsel for the Plaintiff/Responding Party David Smith, Garrett Horrocks, Counsel, for the Defendant/Moving Party
HEARD: August 12, 2019
Endorsement
[1] The defendant William Alfred Taylor brings this motion for summary judgment seeking a dismissal of the claim by his mother’s estate, the Estate of Marjorie Mae Taylor (“the Estate”).
[2] The Estate alleges the defendant failed to advance money owed to his late mother during her lifetime, in contravention of the terms of his late father’s will. The Estate claims the defendant was unjustly enriched and that he failed to make adequate provision for his mother or otherwise failed to ensure her financial well-being. The Estate seeks general damages of $750,000 and punitive damages of $250,000.
[3] The defendant pleads he made all required payments to his mother in accordance with the terms of his father’s will.[^1]
The Issue
[4] The dispute centres on whether the defendant complied with the terms for compensating his mother with a share of the income generated from farm property left to him in 1984 under his late father’s will. The key provision under the Last Will and Testament of Ernest Taylor, dated December 4, 1979 (“the Will”), is as follows:
III. I give all my property wheresoever situate, including any property over which I may have a general power of appointment, to my trustees upon the following trusts, namely:
(a) If my son William Alfred Taylor shall have farmed continuously for at least a period of three years prior to my death, to transfer and convey to my said son all my farm machinery including any truck I may own to be his absolutely, together with any and all interest which I may own in any real estate at the date of this Will in the Township of Harwich in the County of Kent, subject to the right of my wife, Marjorie Mae Taylor, to occupy the residence building which she and I occupy at the date of my death during her lifetime, rent free, she to pay all the utilities in connection therewith, and also subject to her being provided with one-third share of the crops grown on said real estate for and during the term of her natural life (or whatever other arrangement that is satisfactory to her and my said son William Alfred Taylor), he to pay all taxes in respect of the property …[^2] [emphasis added]
[5] The Estate alleges that the defendant failed to pay Mrs. Taylor her one-third share of the crop income as provided by the terms of her late husband’s will. The defendant responds that his mother agreed vary the payment arrangement. The defence submits that Mrs. Taylor agreed to accept one-third of the rental income from the property in place of the crop income and she demonstrated acceptance of this arrangement through her cashing of cheques from the defendant over the course of 18 years before her death.
[6] The Estate claims that Mrs. Taylor did not agree to the change.
Material Filed on Motion
[7] The record before the court on this summary judgment motion consisted of affidavits from the defendant, the Estate trustee and the defendant’s three sisters, who are beneficiaries of the Estate. Transcripts of the cross-examinations on these affidavits were filed with the court. Documentary evidence included the Last Will and Testament of the defendant’s father, the defendant’s ledger statements and other financial information evidencing payments by the defendant to his late mother, his mother’s Last Will and Testament and her Power of Attorney for Property. The parties also filed written submissions following oral argument regarding the application of the law of acquiescence to the facts.
Decision
[8] For reasons that follow, the motion for summary judgment dismissing the plaintiff’s claim is allowed.
Factual Overview
[9] The parties agree on a number of the facts relevant to the motion, subject to interpretation, which I will address below. Based on the evidence put forth on the motion, I find the following facts:
a. Marjorie Mae Taylor (“Mrs. Taylor”) died on November 13, 2017;
b. Mrs. Taylor was predeceased by her husband, William Ernest Taylor (“Ernest”), and is survived by her four children: i. The defendant and moving party, William Alfred Taylor (“Bill”); and ii. Bill’s sisters, Donna Pritchard (“Donna”), Jean Taylor (“Jean”), and Lou Anne Pauhl (“Lou Anne”);
c. Ernest Taylor (“Ernest”) died on September 10, 1984. His Will provided for the following: i. Mrs. Taylor was named as sole estate trustee; ii. All of Ernest’s farm machinery together with any and all of Ernest’s interest in real estate in the Township of Harwich in the County of Kent was devised to Bill on condition that Bill had farmed continuously for a period of no less than three years prior to Ernest’s death; iii. For the purposes of this motion, the real estate at the time of Ernest’s death included a farm property located at municipal address 10355 New Scotland Line, RR #4, Blenheim, Ontario (“Blenheim Farm”);[^3] iv. The devise of the Blenheim Farm to Bill was subject to two conditions in Ernest’s Will: 1. Mrs. Taylor had a life interest in the residence on the Blenheim Farm, which she was entitled to occupy rent-free, subject to Mrs. Taylor paying all utility expenses and Bill paying all taxes; and 2. Mrs. Taylor was to be provided with one-third share of the crops grown on the Blenheim Farm during her lifetime “or whatever other arrangement that is satisfactory” to Mrs. Taylor and Bill [emphasis added]; v. On December 18, 1984, Mrs. Taylor as her late husband’s estate trustee registered a Deed transferring title of the Blenheim Farm to Bill, subject to her life estate and entitlement to receive one-third of the crop income; vi. Bill remitted a one-third share of the crop income generated from the Blenheim Farm to Mrs. Taylor beginning in or about 1984 until 1998; vii. Beginning in or about 1998, the defendant stopped farming and leased the Blenheim Farm to another individual for the purposes of farming, while Mrs. Taylor continued to occupy the residence; viii. Thereafter, Bill made payments to his mother of one-third of the rental income of the Blenheim Farm instead of one-third of the crop income; ix. In 1998, Mrs. Taylor retained counsel, Mr. James Phillips, to seek an accounting from Bill regarding the income generated by the Blenheim Farm and payments made to Mrs. Taylor; x. Bill produced documents to Mrs. Taylor’s counsel, showing that Mrs. Taylor received one third of the crop proceeds until 1998, when she began receiving one-third of the rent income instead; xi. In August 1999, Bill’s counsel advised Mrs. Taylor’s counsel that he would vigorously defend any litigation over the payments from the Blenheim Farm; xii. There were no further formal inquiries or communications by or on behalf of Mrs. Taylor about the payment arrangement until this litigation; xiii. Bill continued to make payments representing one-third of the rental income from the Blenheim Farm to Mrs. Taylor for the next 18 years until her death in November 2017; xiv. Mrs. Taylor continued to live in the residence on the Blenheim Farm throughout this time without paying rent, although paying utilities; xv. Mrs. Taylor’s Last Will and Testament dated June 5, 2006, prepared by her counsel, Mr. Phillips, named her son-in-law Rick Pritchard (“Rick”) as the estate trustee. Mrs. Taylor’s Will made no provision for Bill and left her estate to be shared among the three other siblings; xvi. On October 26, 2017, shortly before her death due to a terminal illness, Mrs. Taylor executed a Continuing Power of Attorney for Property, also prepared by her counsel Mr. Phillips, appointing her son-in-law, Rick as her attorney for property; and xvii. The Estate commenced the action against Bill by statement of claim issued November 30, 2017.
Summary Judgment – Governing Principles
[10] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.[^4]
[11] As set out in Hyrniak v. Mauldin, there will be no genuine issue requiring trial:
… when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.[^5]
[12] To be appropriate, summary judgment must provide a “fair and just adjudication” that allows the judge to “find the necessary facts and resolve the dispute.” The standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.[^6]
[13] Hyrniak offers the following “roadmap” for a summary judgment motion:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.[^7]
[14] The moving party must move with supporting affidavit material or other evidence to support its motion.[^8] The court is entitled to assume that the parties have put before it all evidence that will be available for trial.[^9] Each side must “put their best foot forward” by adducing evidence regarding the material issues to be tried.
[15] Summary judgment motions are decided by evidence of the facts and by inferences drawn from those facts. Not by speculation about the facts.[^10]
[16] The judge may decline to presume that the parties led their evidence on the motion that they would have done at trial if there is concern that there is material evidence that has not been produced such that the evidentiary record on the motion is inadequate to ensure a fair and just determination.[^11]
Position of the Moving Party Defendant
[17] Bill acknowledged that he had an obligation under his father’s Will to make payments to Mrs. Taylor during her lifetime while she held a life interest in the property. He claims that he did so.
[18] Bill contends that in 1998 he and his mother agreed that neither of them wished to continue farming. This would mean there would no longer be any crop income from the Blenheim Farm from which his mother could be paid her one-third share. He claims his mother orally agreed to a different arrangement, whereby he would instead pay his mother one-third of the rental income from the Blenheim Farm.
[19] The defendant argues this alternative arrangement was permitted by the terms of his late father’s Will. Although this new arrangement was not reduced to writing, the defendant points to the following evidence in support of a conclusion that the defendant and Mrs. Taylor agreed that she would accept a share of rental income in place of a share of crop income:
a. the leasing of the Blenheim Farm in 1999 to a tenant, meaning the crops were no longer available to the defendant;
b. Mrs. Taylor’s inquiries through legal counsel into her compensation pursuant to the Will in 1999, with no further communication thereafter; and
c. for the next 18 years until her death, Mrs. Taylor cashed/deposited the payments of the rental income and took no steps to challenge the payments on that basis.
[20] The defendant also argues that these facts establish that Mrs. Taylor had a full appreciation of her rights and entitlements under her late husband’s Will for more than 18 years prior to her death. That fact that she took no steps to challenge the payments indicates she did not object to the arrangement or otherwise waived her right to pursue a cause of action.
Position of the Responding Party Estate
[21] The Estate and its beneficiaries contend that the terms of the Will made Bill financially responsible for Mrs. Taylor’s well-being in exchange for receiving title to his father’s real estate. The Estate trustee accepts that Ernest’s Will provided that Bill and Mrs. Taylor could agree to amend the terms of the crop compensation. However, in the Estate trustee’s view, Mrs. Taylor should have received the whole rent in place of the one-third crop income as that would have been more representative of the value of her previous one-third share of the crop income from the Blenheim Farm. The Estate argues there is no documentary evidence corroborating the defendant’s position that there was an agreement to the new payment arrangement.
[22] The Estate argues Mrs. Taylor did not agree to change the payment arrangement and that she always intended to address the injustice. She cashed the payments from her son out of necessity; not acceptance. The Estate trustee and beneficiaries each deposed in their affidavits and stated under cross-examination that Mrs. Taylor was unhappy with the payments from her son; however, until shortly before her death, she did not want to pursue litigation as she had limited financial means and was hopeful of a reconciliation with Bill which would include financial compensation.
[23] The Estate relies on the following statements that Mrs. Taylor ostensibly made to the Estate trustee and her daughters on a number of occasions in the years preceding her death and which the Estate trustee and daughters reported to one another. The Estate submits this establishes that there was no agreement between Mrs. Taylor and Bill to a payment arrangement in substitution to the payment of crop income:
a. Towards the end of her life, Mrs. Taylor realized that Bill was not going to come and see her and stated to Rick: “That’s it … Rick, you’ve got a duty. I want you to get back the money that he [Bill] was supposed to have given me.”[^12]
b. After she had stopped treatment for her terminal illness and gone to live with her daughter Donna and son-in-law Rick in October 2017, Mrs. Taylor directed her daughters and trustee to start legal proceedings against Bill, telling Donna that she “couldn’t handle this any longer and that it needed to come to an end and she wanted to start proceedings.”[^13]
c. Mrs. Taylor told her daughter Jean that: “she was not happy with the fact that she did not receive what she believed was in accordance with my father’s will.”[^14]
d. Mrs. Taylor did not want to pursue legal proceedings against Bill because she hoped they would reconcile and did not have the means to pursue litigation. Jean testified her mother stated she wanted to hire a lawyer but that it was beyond her “financial means”.[^15]
e. Mrs. Taylor repeatedly told her daughter Lou Anne that “the cheques were not coming in the full amount, that she would always have to ask for the payment” from Bill and that “she was not getting the crop payment, she was only getting the rental payment.”[^16]
f. Bill “went so far as to threaten her [Mrs. Taylor] with costly litigation if she elected to pursue the matter further.”[^17]
[24] In summary, the Estate’s evidence is based on hearsay and double-hearsay statements by Mrs. Taylor to which the Estate trustee and beneficiaries attest. There is no other evidence to corroborate that Mrs. Taylor did not approve of the rental payments she received from Bill in place of the crop payments beyond the statements each witness says Mrs. Taylor made to them.
Positions of the Parties on Summary Judgment
Moving Party Defendant
[25] The moving party defendant contends there is not a genuine issue requiring a trial. The Estate’s claim entirely depends upon inadmissible and vague hearsay evidence regarding Mrs. Taylor’s position that she was “unhappy” with the payments from her son and wished to legally challenge the payment arrangement with the defendant. This is belied by her 18 years of acceptance of the payments without dispute. Her reported discontent with the quantum of the payments does not demonstrate that there was not an agreement. There is no documentary or other circumstantial evidence confirming the Estate’s evidence as to Mrs. Taylor’s opposition to the payment arrangement. As s. 13 of the Evidence Act[^18] requires corroboration of such evidence arising before Mrs. Taylor’s death, the Estate’s claim must fail.
[26] The defendant urges there is admissible evidence under s. 13 of the Evidence Act so as to find that Mrs. Taylor agreed to an arrangement of one-third rental income in place of one-third crop income.
Responding Party Estate
[27] The Estate argues summary judgment is premature, inappropriate and a classic case for the court to guard against “trial in a box”. The Estate urged that the court needs to hear the motion witnesses at trial in order to assess reliability and rule on the admissibility of the hearsay statements. There is also material evidence which should be before the court, including the evidence of Mrs. Taylor’s lawyer, Mr. Phillips, who was involved in the accounting of the Blenheim Farm in 1998-1999, the preparation of Mrs. Taylor’s Will in 2006 and her Power of Attorney for Property in 2017.
[28] The Estate concedes there was a change in the payment arrangement structure under but submits that it was not documented to demonstrate Mrs. Taylor’s agreement. The Estate argues that there was no admissible evidence to support the defendant’s position that the Bill and Mrs. Taylor agreed to a different payment arrangement than the crop arrangement in the Will. The Estate referenced the consistent hearsay evidence from the Estate trustee and beneficiaries regarding Mrs. Taylor’s opposition to the payment terms.
Analysis
[29] I find I can make a fair and just determination on this summary judgment record. I am satisfied that there is a fulsome evidentiary record and that this motion is not premature. The motion produced more evidence than would have been forthcoming in the discovery process, as the three beneficiaries also provided sworn evidence and submitted themselves to cross-examination. The key witness who could attest to whether she had agreed to accept a share of the Blenheim Farm rental income is deceased. On cross-examination the parties and witnesses conceded there was no documentary evidence of either her agreement to or rejection of the payment arrangement. There was affidavit evidence and cross-examinations among her four children regarding the estate arrangements. As Mrs. Taylor is deceased, and the parties agree there is no documentary evidence to establish her intentions, it is unlikely that there is any further information regarding the payment arrangement that would come forward through a trial. The Estate had an obligation to put its “best foot forward” on this motion and if there were additional witnesses with evidence relevant to the material issues in this proceeding, such information should have been adduced in the motion.
[30] Before turning to the central issue, I first address the Estate’s allegation that the terms of Ernest Taylor’s Will required the defendant to assume responsibility for Mrs. Taylor’s financial well-being. I see no such express requirement on a plain reading of the terms of that Will. The life estate and payment of income may have had the effect of contributing to Mrs. Taylor’s financial stability; however, the record establishes that this was not her only source of financial support in the years following her husband’s passing and that she maintained a lifestyle that allowed her to regularly travel in pursuit of her hobby and to winter in Florida. The provisions of the Will cannot be interpreted as making the defendant generally responsible for his mother’s financial well-being.
[31] This motion turns on the analysis of hearsay evidence regarding Mrs. Taylor’s reported intentions and whether she agreed with her son to the change of the payment arrangement under her late husband’s Will. I find I can address whether this raises a genuine issue requiring trial without engaging the additional fact-finding tools under Rules 20.04 (2.1) and (2.2).
[32] As Mrs. Taylor is deceased, s. 13 of the Evidence Act applies to the liability positions of both parties:
In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.[^19]
[33] The corroboration required by s. 13 must be evidence independent of the evidence of the interested party which shows that the party’s evidence on a material issue is true. The corroborating evidence can be either direct or circumstantial. It can consist of a piece of evidence or several pieces considered cumulatively.[^20]
[34] The Estate’s claim relies on hearsay evidence from the Estate trustee and beneficiaries who have an interest in the outcome of the action. In order to succeed, the Estate must establish that the statements are admissible under the principled exception to the hearsay rule and that those statements are corroborated by some other material evidence.
[35] The statements offered by the Estate and beneficiaries as to Mrs. Taylor’s intentions regarding the payment arrangement are presumptively inadmissible and do not fall within the traditional exceptions to the hearsay rule. It may still be admitted under a principled approach if indicia of necessity and threshold reliability are established.[^21]
[36] The defendant concedes that the statements satisfy the criteria for “necessity” as Mrs. Taylor is not available to testify. However, the defendant argues that the statements do not satisfy the criteria for threshold reliability and therefore should not be admitted. I agree with this submission.
[37] As was noted by the Supreme Court of Canada in R. v. Khelawon, the reliability requirement is usually met in two different ways. One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. Another way is to show that no real concern arises from the hearsay statement as its truth and accuracy can nonetheless be sufficiently tested.[^22]
[38] I do not accept the Estate’s submission that the court should assess the reliability of the hearsay statements through assessing the witnesses’ evidence in the trial process. In my view, this confuses the concept of threshold reliability with ultimate reliability. Here, the concern is whether the circumstances surrounding the statement itself provides circumstantial guarantees of trustworthiness such that it may be admitted into evidence and have its ultimate reliability determined by the trier of fact.[^23]
[39] The statements consist of both hearsay and double-hearsay evidence and relate to the material issue in this motion and this action. As noted by the Court of Appeal, if the hearsay evidence is on a fundamental aspect of the motion, it is unlikely that the motion judge will decide the motion favourably to the party adducing the hearsay evidence.[^24] The statements do not have circumstantial guarantees of trustworthiness. They are offered by witnesses with a financial interest in the outcome of this action and where the Estate trustee is the spouse of one of the beneficiaries. In most if not all instances, these statements were ostensibly made by Mrs. Taylor many years after the payment arrangement had changed. The statements were not made in circumstances where one can be reasonably satisfied as to their trustworthiness. There is no adequate substitute for testing the evidence.
[40] The Estate relies on R. v. Pasqualino, where the Court of Appeal signalled that statements in the context of a “special” relationship, such as in everyday intimate conversations between close relatives and friends, can constitute an indicator of reliability.[^25] However, I note that this proposition is expressly contingent on the sources of the hearsay having no motive to fabricate, whereas in this case, the sources have a financial interest. Pasqualino is also distinguishable on its facts, as the court in found that one indicia of reliability was corroborating evidence that confirmed the hearsay evidence from family members of the deceased. Similarly, in Brisco Estate v. Canadian Premiere Life Insurance Co., the court found there was some evidence to confirm the truthfulness of the deceased’s statements to family concerning the cancellation of an insurance policy.[^26] In contrast, there is no corroborating or other confirmatory evidence supporting the hearsay statements on this motion.
[41] Even if I were persuaded that the statements were admissible on a principled approach, the Estate’s claim would still fail due to the lack of material evidence corroborating those statements pursuant to the Evidence Act. The Estate and its witnesses conceded that there is no documentary information demonstrating Mrs. Taylor’s intentions and offered no other evidence to corroborate the statements. No other evidence was submitted to support the Estate’s position. As previously noted, on a summary judgment motion, the court is entitled to presume that the parties have led all the evidence on the motion that they would have led at trial.
[42] I must also consider whether, in fact, the defendant and Mrs. Taylor agreed to the defendant paying Mrs. Taylor one-third of the rental income instead of one-third of the crop income. I conclude I can fairly resolve the issue on the documentary record before me supplemented by the fact-finding tools in Rules 20.04 (2.1) and (2.2). The undisputed evidence is that the Blenheim Farm was rented to another individual, therefore removing the defendant’s ability to remit one-third of the crop income to his mother. The defendant made payments to his mother of one-third of the rental income for the next nineteen years. Although she retained legal counsel for a review and accounting of the payments in 1998/1999, she took no further action over the course of the next 18 years until her death. During that time, she continued to deposit the payments received from the defendant. From these facts, one can reasonably infer that they agreed to the change in the payment arrangement as permitted by the Will.
[43] If I am in error on this finding, I accept the defendant’s submission that in the alternative, the facts support the inference that Mrs. Taylor acquiesced to the change in the payment arrangement. Acquiescence is a fluid term, where the definitions include where a party stands by and watches the deprivation of her rights and yet does nothing or the party delays after the deprivation of her rights and in full knowledge of their existence.[^27] Again, the undisputed evidence is that Mrs. Taylor retained counsel in or about 1998 to compel an accounting of her son’s administration of the Blenheim Farm and to ensure she was receiving the compensation owed to her. While she may have been unhappy about the amount of the payments, she took no further steps once those inquiries concluded in 1999 and continued to cash the payments from her son for the next 18 years. The facts demonstrate more than simple delay. I find that she knew of the material facts and did not object to the arrangement or otherwise waived her right to pursue a cause of action.
Order
[44] I grant the defendant’s motion to dismiss the action.
[45] As the defendant was successful on the motion, he is presumptively entitled to his costs. If the parties are unable to resolve the issue of costs, I will address costs in writing, with submissions limited to three (3) double-spaced pages, excluding offers. The defendant’s submissions are to be served and filed by 4:00 p.m., October 4, 2019 and the plaintiff’s submissions are to be served and filed by 4:00 pm, October 18, 2019. If no submissions have been filed the parties will be deemed to have settled the issue of costs.
“Justice K. Tranquilli”
Justice K. Tranquilli
Date: September 12, 2019
[^1]: The Statement of Defence also raised the Limitations Act, 2002, SO 2002, c 24, Sch B; however, this was not argued on the motion. [^2]: Affidavit of William Taylor, February 13, 2019, Exhibit “A”. [^3]: The real estate as at the time of Ernest’s death also included a second farm property located in the Town of Harwich, Ontario (“Harwich Farm”). The Harwich Farm was later sold in 1993. The parties agreed at the hearing of this motion that this action pertains only to issues arising from the Blenheim Farm and that there are no claims in relation to the Harwich Farm. My reasons therefore focus on the Blenheim Farm. [^4]: Rule 20.04(2.1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended. [^5]: 2014 SCC 7 at para 49. [^6]: Hyrniak, supra, at para 50. [^7]: Hyrniak, supra, at para 66. [^8]: MacDonald v. Chicago Title Insurance Co of Canada, 2015 ONCA 842 at para. 50. [^9]: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, aff’d 2014 ONCA 878. [^10]: Chernet v. RBC General Insurance Company, 2017 ONCA 337 at para. 12. [^11]: 90 George St. v. Reliance Construction, 2012 ONSC 1171. [^12]: Transcript of Cross-Examination of Rick Pritchard, June 20, 2019, page 29, questions 144-145. [^13]: Transcript of the Cross-Examination of Donna Pritchard, June 20, 2019, pages 31-32, questions 104-113. [^14]: Transcript of the Cross-Examination of Jean Taylor, June 20, 2019, page 13, question 79. [^15]: Transcript of the Cross-Examination of Jean Taylor, June 20, 2019, pages 26-27, questions 120-122. [^16]: Transcript of the Cross-Examination of Lou Anne Pauhl, June 20, 2019, pages 18-19, questions 93-94. [^17]: Transcript of the Cross-Examination of Lou Anne Pauhl, June 20, 2019, page 11, questions 61-64. [^18]: R.S.O. 1990, c. E.23, as amended. [^19]: R.S.O. 1990, c. E.23, s. 13. [^20]: Burns Estate v. Mellon, 2000 CanLII 5739 (ON CA) at para. 29 [^21]: R. v. Khelawon, 2006 SCC 57 at paras 42, 56, 59. [^22]: Khelawon, supra, at paras. 61-64. [^23]: Khelawon, supra, at paras. 50-51. [^24]: Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447 at para. 23. [^25]: 2008 ONCA 554, [2008] O.J. No. 2737 (C.A.) at para. 43. [^26]: 2012 ONCA 854, [2012] O.J. No. 5732 (C.A.) at para. 56. [^27]: M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 SCR 6 at para 100.