COURT FILE NO.: CV-17-589284
DATE: 20191113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF GEORGE PAUL ZACHARIADIS, DECEASED, by his Estate Trustees, ALESSANDRA SACCAL and ROMINA SACCAL
Plaintiffs
– and –
DESPINA GIANNOPOULOS also known as DESPINA GIANNOPPOULOS also known as DEBBIE GIANNOPOULOS also known as DEBBIE GIANNOPPOULOS, DR. ARIS GIANNOPOULOS, JOHN DOE, JANE DOE and DOE CORPORATION
Defendants
Norman Groot and Geoff Keeble, for the Plaintiff
Justin W. de Vries and Diane Vieira, for the Defendants, Despina Giannopoulos and Dr. Aris Giannopoulos
HEARD: August 20, 2019
Koehnen J.
[1] George Zachariadis was a Toronto physician. He married and had two daughters, the plaintiffs Alessandra Saccal and Romina Saccal. George[^1] separated from his wife in 1986 and was divorced in 1993. His daughters allege that he defaulted on support payments leaving them and their mother financially destitute. By 1995, both daughters refused to speak with him. The estrangement lasted until his death in 2015. His daughters married and had children of their own. George was not invited to their weddings and never met his grandchildren.
[2] In approximately 1996, George began a romantic relationship with the defendant Despina Giannopoulos, a pharmacist with her own business in the building in which George practiced medicine. In July 2014 George moved into Despina’s two-bedroom apartment. They decided to marry and began looking for rings. In November 2014 George gave Despina a bank draft in the amount of $700,000.
[3] In December 2014 George was diagnosed with cancer. He was hospitalized on February 2, 2015 for a urinary tract infection and high fever. When hospitalized, he appointed Despina as his attorney for property and health care.
[4] After Despina realized that George might die, she got in touch with someone who knew the Saccals to advise them of George’s condition. The daughters visited him in the hospital on February 17 and 18. By that time George was unconscious. He died on February 19, 2015, apparently without a will.
[5] The Saccals were granted a certificate of appointment as estate trustees in December 2015.
[6] After his daughters learned of the transfer of $700,000 to Despina, they commenced this action to recover the money for the estate.
[7] Despina brings this motion for summary judgment to dismiss the claim against her. The plaintiffs have already agreed to dismiss the claim against the defendant Dr. Aris Giannopoulos. At the time the motion was argued that order had not yet been taken out. In the event the order remains outstanding, the action is dismissed against Dr. Giannopolous, on consent.
[8] The plaintiffs suggest that either Despina had a role in withdrawing the $700,000 from George’s bank account or that she received the money to hold in trust.
[9] In addition to the substantive motion for summary judgment, there are a number of procedural motions. The plaintiffs bring a motion to amend the statement of claim and to adjourn the summary judgment motion to permit the examination of non-party witnesses. The defendant moves to strike two new affidavits that the plaintiffs wish to file.
[10] With respect to the procedural motions, I allowed the amendment to the statement of claim. The amendment adds nothing material that was not already contained in the motion materials. As a result, the defendant could not be taken by surprise.
[11] I disallowed the adjournment to permit examinations of non-party witnesses. The plaintiffs have not moved with diligence to examine. The examinations were not contemplated by any case timetable even though the plaintiffs sought and obtained a new case timetable only three weeks before the motion was argued. The plaintiffs have known of the identities of the parties they wish to examine and the information they supposedly have for quite some time. The plaintiffs have offered no explanation for failing to examine sooner. It is also unlikely that the examinations will add anything material to the evidence already before me.
[12] I grant the motion for summary judgment and dismiss the claim. There are no issues that require a trial here. As a matter of law, the action is statute barred by the limitation period found in s. 38 (3) of the Trustee Act, RSO 1990, c. T. 23. If I am wrong in this regard, I would also award the defendant summary judgment on the merits of the case. Although the plaintiffs put Despina’s credibility into question, she died one week after the motion was heard. I have viewed a video of her combined cross-examination on her affidavit and examination for discovery and am in as good a position as the trial judge to assess her credibility. I find that Despina has met the burden of proof to demonstrate that she received the $700,000 as a gift. Although the plaintiffs have raised a number of suspicions they have about the transfer, mere suspicions on the plaintiffs’ part, do not amount to an issue that requires a trial.
I. Amendment to the Statement of Claim
[13] After the defendants moved for summary judgment, the plaintiffs moved to amend their statement of claim as set out in their motion record. At the commencement of the hearing before me, the plaintiffs handed up a further amended statement of claim. Notwithstanding the late delivery of the amended claim, I allowed the amendment. There was nothing substantively new in the amendments that was not already in the evidentiary record as a result of which the defendants could not be taken by surprise.
II. Motion to Adjourn to Examine Non-party Witnesses
[14] The plaintiffs move to adjourn the motion for summary judgment to allow them to examine eight non-party witnesses under Rule 39.03. I declined the motion because:
A. The plaintiffs failed to act with reasonable diligence.
B. The examinations were contrary to Rule 39.02
C. The examinations were unlikely to add nothing of substance to the motion.
A. Failure to Raise Examinations Earlier
[15] Rule 39.03 requires that the right to examine a non-party witness be exercised with reasonable diligence and that the court may refuse an adjournment of a motion where the party seeking the adjournment has failed to do so. The plaintiffs have failed to act with reasonable diligence.
[16] As set out in greater detail in sub-section C below, the plaintiffs knew the identities of the witnesses and the alleged importance of the information they are said to possess long before the hearing date. In most cases the plaintiffs had this knowledge within a few months of George’s death in February 2015. In one case they did not learn of the identity of a potential witness until June 2019.
[17] The Saccals knew in October 2018 that the Despina was were moving for summary judgment. In February 2019, the Saccals knew that the motion date was set for August 1, 2019.
[18] On July 30, 2019, the plaintiffs attended Civil Practice Court to adjourn the motion because they had not filed their factum in time. Justice Firestone adjourned the summary judgment motion to August 20, 2019 and put in place a new timetable. At the time the plaintiffs raised no issue about needing to examine non-party witnesses.
[19] On August 9, 2019, the plaintiffs served a new motion record seeking a further adjournment of the summary judgment motion to examine non-party witnesses. On August 13 the defendant served notices of examination on a number of witnesses.
[20] The Saccals have had ample time to examine non-party witnesses and have failed to do so. They have provided no persuasive reason for their failure to examine non-parties since October 2018 and no reason for their failure to raise the issue when they attended before Justice Firestone on July 30, 2019.
[21] The plaintiffs submit that they only received information from RBC pursuant to a court order on July 26, 2019. The court order was dated July 22, 2019. Given that the plaintiffs have been trustees of the estate since December 2015, they have provided no reason for which they did not try to obtain information from RBC at an earlier stage. Moreover, if the information they received from RBC on July 29, 2019 required rule 39 examinations, they have provided no explanation for why they did not raise the issue with Justice Firestone on July 30, 2019.
[22] The plaintiff Romina Saccal has delivered an affidavit sworn August 8, 2019 to the effect that a number of family medical issues have caused her stress. That evidence might be capable of being characterized as explaining why the non-party witnesses could not be attended to earlier. I underscore, however, that Romina does not actually assert this in her affidavit. Moreover, even if she did make such an assertion, it does not explain why Alessandra could not have given instructions to that effect.
[23] In the foregoing circumstances, the plaintiffs have failed to exercise the reasonable diligence that rule 39.03 requires.
B. The Examinations are Contrary to Rule 39.02
[24] Subrule 39.02(2) states:
A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.
[25] As noted above, the plaintiffs have not provided any explanation for why the non-party examinations were not held or at least proposed earlier.
[26] There is prejudice to an adjournment that cannot be compensated for in costs. The plaintiffs have known since November 2018, that Despina had been diagnosed with cancer. When the motion was heard on August 20, 2019 she was in an advanced stage of cancer and was not expected to live long. The lateness with which the motion to examine non-parties arose would make it difficult or impossible for Despina to respond to any information arising out of the examinations. That concern was not merely speculative. Despina died within a week of the motion being heard.
C. Examinations Are Unlikely to Add Anything to the Motion
[27] Based on the record before me, the proposed non-party examinations would add nothing to the record that already exists. This section will consider the eight witnesses the plaintiffs propose to examine. The two points to underscore with each witness is that their identity has long been known to the plaintiffs and that their testimony is unlikely to add anything to the motion.
[28] Galuh Sinta and Leonisa Suiza, are two Royal Bank of Canada employees who were involved in preparing the $700,000 draft that George gave to Despina. The plaintiffs suggest that it is necessary to examine the bank employees because there is uncertainty about who actually withdrew the $700,000 from George’s account and who actually obtained the bank draft. The plaintiffs suggest that Despina may have been the one to withdraw the funds and obtain the bank draft. Despina denies this.
[29] After the Saccals became estate trustees in December 2015 they had had the right to obtain pretty much the same information from RBC as George did. The Saccals, began corresponding with RBC staff in their capacities as co-estate trustees, no later than February 2016. They have provided no explanation for their failure to obtain information earlier than the end of July 2019.
[30] In response to inquiries from the plaintiffs, RBC advised that the bank employees involved have no recollection of the events surrounding the bank draft. It is not surprising that bank employees would not remember a single transaction that took only a few minutes of their time five years earlier. In addition, the bank advised that:
“prior to issuing the draft, due diligence on the account holder would have been done by PIN, matching client signature with signature on file, and photo identification. It was a normal banking transaction. No further details are available.”
[31] In other words, the suggestion that there was mystery about who attended the bank to withdraw the bank draft has no basis in fact. The bank is effectively saying that only George could have withdrawn the funds.
[32] Dr. Karen Wai Ling Yee is a physician at Princess Margaret Hospital who saw George on November 14, 2014 and November 28, 2014. Her clinical notes of both visits are in the record before me. Her note of the November 14, 2014 visit indicates that George was “able only to walk 5 to 10 minutes on level ground due to muscle weakness and lack of energy. There is no shortness of breath.” The plaintiffs submit that this indicates that George was incapable of attending the RBC and authorizing the $700,000 withdrawal.
[33] A letter from Dr. Yee’s lawyer in response to the summons to witness states:
“Dr. Yee has no independent recollection of her encounter with Dr. George Paul Zachariadis and therefore would not be able to provide any information beyond what is already recorded in the medical record.”
[34] The medical record is already before me. The plaintiffs have advanced no argument about why an examination is necessary in light of the information that Dr. Yee has no independent recollection. The fact that a physician who saw a patient twice five years ago has no recollection beyond her notes is not surprising. Examining that physician out of court would add little if anything to the issue. The plaintiffs suggest that George’s inability to walk for more than 5 to 10 minutes suggests that someone else removed the $700,000 from his bank account. Even a person who can only walk 5 to 10 minutes on level ground can still drive or take a cab to the bank to withdraw funds.
[35] Sean Patrick is an employee of Heritage Funeral Homes where the visitation of George was held. Romina states in her affidavit that:
“The notes and records of the funeral home file contain information from Despina that is relevant to the issues of her relationship with my father, and whether there was a valid gift.”
[36] Ms. Saccal provides no further information about the nature of the notes and records nor was any argument made about how notes and records at a funeral home would provide insight relevant to determining whether the $700,000 was a gift.
[37] James Naumovich is a retired wills and estates lawyer who was also a friend of George. The plaintiffs submit that, if George had a will which was known to Despina, this information is relevant to Despina’s fraudulent concealment
[38] Despina gave the Saccals Mr. Naumovich’s contact information on June 13, 2019 pursuant to an undertaking given at Despina’s May 15, 2019 cross-examination. Yet, the Saccals, as co-estate trustees, waited until the week of August 12, 2019 (one week before the hearing date) to serve summons to witness without any explanation for their delay.
[39] Dr. Spiro Konstandatos was the landlord at George’s medical practice. The Saccals were in contact with Dr. Konstandatos at an early stage. By way of example, on May 11, 2015 he wrote to counsel for the Saccals indicating that the daughters had already been in George’s office on at least three occasions, that he had made staff available to help them remove belongings from the office and shred documents and asked them to remove George’s remaining personal effects from the office.
[40] In her affidavit, Ms. Romina Saccal explains her desire to examine Dr. Konstandatos because it appeared that Despina had access to George’s office after he passed away and before the Saccals had access. Despina denies removing papers from George’s office. The Saccals provide no explanation for why whatever evidence Dr. Konstandatos can provide was not obtained earlier.
[41] The final non-party witness the plaintiffs wish to examine is Ms. Pat Konstandatos who dealt with George’s property. The plaintiffs have provided a summary of the evidence she is expected to give. The most material element of that evidence is that Despina never mentioned the $700,000 or any other transfer to her and “never mentioned getting married to George.” I accept that evidence for the purpose of the summary judgement motion. That Despina would not disclose her financial affairs even to a close friend is in no way surprising. That she would not tell a close friend that she and George were getting married is also not fatal to the summary judgment motion. The fact of a contemplated marriage is a small part of the overall picture and not a decisive feature of the motion. The evidence is that they discussed marriage but put it on hold given George’s illness. We do not know when marriage was first raised and when it was put on hold. Finally, the fact that two people in their seventies, who have had a twenty-year relationship are planning to get married, does not involve the same ceremonial rite of passage that a first marriage between people in their twenties or thirties would. It is not particularly suspicious or surprising that Despina may not have told a good friend about her plans.
III. Limitations Issue
[42] Despina submits that the plaintiffs’ claim is barred by the limitations provision contained in s. 38 (3) of the Trustee Act, RSO 1990, c. T. 23 which states:
“An action under this section shall not be brought after the expiration of two years from the death of the deceased.”
[43] In other words, the limitation period begins to run at the time of that death, not from the time the estate trustee discovers the claim: Levesque v Crampton Estate, 2017 ONCA 455, 2017 CarswellOnt 8319 at paras. 55-56; Giroux Estate v Trillium Health Centre, 2005 CarswellOnt 241 at para. 28.
[44] While the rule may, at first blush, seem harsh, it was a specific policy choice. At common law, any claim by the deceased would have been extinguished on death. As a compromise to this draconian rule, the legislature provided a two-year limitation period which is not subject to the discoverability principle: Giroux at para. 25.
[45] George died on February 19, 2015. The claim was issued on December 29, 2017, 2 years and 10 months after George’s death.
[46] The Saccals admit they discovered the transfer to Despina between January and March 2016. That left them approximately one year to commence an action within the limitation period.
[47] The plaintiffs resist the application of a limitation period by relying on doctrine of special circumstances. That doctrine however, is limited to adding, after the expiry of a limitations period, a party or cause of action to a claim that was commenced within the limitations period. The doctrine does not allow a party to commence a new proceeding after the expiry of the limitations period: Graeme Mew, The Law of Limitations, 3d ed. (Toronto: LEXIS-NEXIS, 2016).
[48] The plaintiffs also rely on the doctrine of fraudulent concealment to avoid the limitation period. The doctrine of fraudulent concealment is an equitable principle:
“aimed at preventing a limitation period from ‘operating as an instrument of injustice.’ When applicable, it will ‘take a case out of the effect of the statute of limitation’ and suspend the running of the limitation clock until such time as the injured party can reasonably discover the cause of action”: Giroux at para 28.
[49] For the doctrine of fraudulent concealment to apply, the plaintiffs must establish that:
(a) the defendants and plaintiffs had a special relationship with one another;
(b) given the special or confidential nature of the relationship, the defendants’ conduct is unconscionable; and
(c) the defendants concealed the plaintiffs’ right of action actively or the right of action is concealed by the manner of the defendants’ wrongdoing: Estate of Graham v Southlake Regional Health Centre, 2019 ONSC 392, at para. 88.
[50] As set out below, none of these elements apply.
(a) No Special Relationship
[51] The plaintiffs assert that Despina owes the estate $700,000 and that there is a special relationship between an estate trustee and debtor to the estate.
[52] If the plaintiffs are correct, then a special relationship would, by definition, be created whenever estate trustees asserted that someone owed the estate money. That would effectively put an end to the two-year limitation period in the Trustee Act.
[53] In the alternative, the Saccals submit that Despina created a special relationship, by creating an extended parent-child relationship with them. To support this extended parent-child relationship, the plaintiffs point to a number of other allegations to support the parent-child relationship including the following: George told Despina that he wanted to leave money for his grandchildren. Despina placed a note on the file at the funeral home not to permit the Saccals access. Despina attended with the Saccals at George’s office and was present when they searched for the will. Despina contacted an estates solicitor friend of the Deceased (James Daris) and told the Saccals that the Deceased did not have a will.
[54] I cannot see how these additional allegations amount to creating a parent-child relationship between Despina and the Saccals. The essence of a special relationship is one of closeness, trust or dependence.
[55] Despina was a stranger to the Saccals. She had never met them until they appeared at the hospital a couple of days before George died. The plaintiffs have introduced no evidence to suggest that there was any type of relationship of particular trust or confidence between them and Despina. If the plaintiffs are correct and they were aware that Despina had left some type of note at the funeral home to restrict the Saccals access, that would belie any type of special relationship.
[56] Moreover, the Saccals’ own conduct belies any special relationship. On April 28, 2015 their lawyer wrote to Despina saying:
“… You have taken upon yourself to represent to the public that you are a common-law spouse of the Deceased, our clients strongly dispute and deny that status. You are hereby forbidden to approach any persons with which the Deceased had any business dealings or other relationships and make any further misleading or inappropriate representations or warranties to the effect that you have any relationship with the Deceased, beyond having had normal social interaction or friendship with the Deceased. Any communication that you intend to make regarding your relationship to the Deceased or viz the Estate should be made only through this office.”
[57] “Forbidding” Despina to have any contact with anyone who had any relationship with George and demanding that Despina make any statement about her relationship with George only through counsel to the Saccals would appear to belie any special relationship. It is noteworthy that the letter was sent at least 8 months before the Saccals became aware of the $700,000 transfer to Despina.
(b) Defendant’s Conduct Is Not Unconscionable
[58] The plaintiffs have not established that Despina’s conduct was unconscionable.
[59] In their factum, the plaintiffs make bald allegations that Despina was deceitful towards them but do not say how.
[60] They have pointed to no instance in which they asked a question of Despina to which she gave a false or misleading answer. Their real complaint appears to be that Despina did not volunteer that she had received a $700,000 payment from George. I do not find Despina’s failure to volunteer that information to be unconscionable. At the time of the interactions, Despina was clearly grief stricken. She had no knowledge of George’s financial affairs and no knowledge of whether he had a will, what the terms of the will might be and who the executor might be. She did not know the Saccals and knew only that George had been estranged from them for over 20 years and did not want to see them. In those circumstances it cannot be said that the failure to volunteer, out of the blue, that George had given her $700,000 is unconscionable.
[61] As noted earlier, the plaintiffs merely point to a series of suspicions they have. In paragraph 26 of their factum, the plaintiffs begin seven successive sentences with the word “suspiciously” followed by a circumstance that the plaintiffs deem to be questionable. By way of example they state: “Suspiciously, no power of attorney or will were located.” It is not particularly suspicious to fail to locate a will if none exists. That people die without a will is not, in itself suspicious. It is a common occurrence.
[62] Beginning a series of sentences with the adjective “suspiciously” does not convert mistrust on the plaintiffs’ part into unconscionable conduct on the defendant’s part.
(c) No Fraudulent Concealment
[63] The third element of the doctrine of fraudulent concealment is that the defendant have concealed the plaintiffs’ right of action either actively or by the manner of the defendant’s wrongdoing: Estate of Graham v Southlake Regional Health Centre, 2019 ONSC 392, at para. 88.
[64] There was no active concealment on Despina’s part. The plaintiffs have pointed to no conduct that made it more difficult for them to discover their alleged cause of action apart from the fact that Despina did not volunteer the receipt of a payment from George. There was no duty on her to volunteer that information. As noted above, her lack of disclosure was understandable and acceptable.
[65] Despina’s uncontradicted evidence is that she had no information about George’s estate, assets, liabilities or general financial matters while alive or after his death. In those circumstances she could not have hidden anything from the Saccals.
[66] The plaintiffs have not brought themselves within any exception to s. 38 (3) of the Trustee Act, as a result of which the limitation period contained in s. 38 (3) of that statute applies and the action should be dismissed as statute barred.
[67] In the event I am wrong in this analysis, I will proceed below to analyse the case on its merits.
IV. Analysis of the Facts
[68] Common-law relationships or romantic friendships do not give rise to a presumption of gift: Simmons v. Clarke (1983), 40 Nfld. & P.E.I.R. 446 (Nfld. Dist. Ct.), at para. 10. The onus is on the donee to establish a gift: McTaggart v Boffo, 1975 CanLII 351 (ON SC), 1975 CarswellOnt 531, at para. 18.
[69] Section 13 of the Ontario Evidence Act R.S.O. 1990, c. E.23, s. 13. provides
“In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.”
[70] The requirement exists to address the fact that the dead cannot tell their side of the story or respond to the livings' version of events: Orfus Estate v Samuel & Bessie Orfus Family Foundation, 2013 ONCA 225, 2013 CarswellOnt 3927 at para. 72.
[71] As I read the cases, section 13 applies to the Saccals’ claim against Despina but does not apply to Despina’s position in the litigation or to her summary judgment motion. In Briscoe Estate v. Canadian Premier Life Insurance Co., 2012 ONCA 854 of the Court of Appeal noted that section 13 was an exception to the general rule in most common law countries that the evidence of one witness is capable of meeting the burden of proof in civil or criminal proceedings. At paras. 59 – 60 of Briscoe, the Court of Appeal quoted from Wigmore’s forceful criticism of the rule and limited the application of s.13 to circumstances in which a party litigates in its capacity as an heir, next of kin, executor, administrator or assignee. It does not apply not simply because the party happens to fall into one of those categories but does not litigate in that capacity. To the extent that Despina could be seen to fall into one of those capacities, (potentially next of kin) she is not claiming entitlement to the $700,000 in one of those capacities, as a result of which s. 13 does not apply to her claim.
[72] Much was said on the motion about the specific onus of proof attaching to gifts. The plaintiffs suggest courts should apply a degree of suspicion to the allegation that a payment from a deceased to a donee is a gift. While healthy skepticism may be appropriate and while the court should carefully scrutinize the cogency of the supporting evidence, the standard of proof remains the civil standard of proof on a balance of probabilities and not some higher standard: Burns Estate v. Mellon 2000 CanLII 5739 (ON CA), [2000] O.J. No. 2130 at para. 9 (C.A.).
[73] In this case I am satisfied that Despina has adduced sufficient evidence of a gift to meet the civil standard of proof.
[74] Despina must establish three elements to demonstrate a gift: delivery, acceptance and intention. The first two are not in issue. The $700,000 was delivered to Despina and she accepted it. The real issue is intention. Did George intend to gift the $700,000 or was it delivered pursuant to some sort of condition or trust.
[75] The following circumstances, create a sufficient basis on which to conclude that the transfer was intended as a gift:
(a) George and Despina had been in a relationship for 19 years. They were living together and decided to marry.
(b) George was estranged from his two daughters. He had not seen them in 20 years. He was not invited to their weddings or to the baptisms of their children. He had never seen his grandchildren.
(c) George acted as a father figure to Despina’s son and had transferred his medical practice to him.
(d) George viewed Despina and her son as his only family.
(e) Despina had given George approximately $150,000 in the past which George had never repaid. There does not appear to have been an expectation of repayment.
(f) George had recommended investments to Despina which did not work out and in which Despina suffered a loss.
(g) George had given Despina a cheque for $500,000 in July of 2014 which Despina never cashed.
(h) When George gave Despina the bank draft, he told her it was a gift for her to do with what she wanted and that he was giving her the money because she was his family.
(i) The bank draft contained no restrictions. For example, it did not indicate that the funds were being paid in trust or were being paid for a particular purpose.
[76] While much of this evidence comes from Despina, the plaintiffs had the opportunity to conduct an examination of Despina that served as a combined cross-examination and examination for discovery. The parties video-taped the examination in anticipation that Despina would not be able to testify at a later stage. I viewed the video. Despina came across as a candid, forthright witness. She was not shaken on any of her evidence. She answered questions directly, did not argue, did not try to avoid or evade questions and volunteered information helpful to the plaintiffs. In many cases, an average witness would have provided much more explanation than Despina did. When the answer did not specifically ask for an explanation, she did not give one but answered the question that was asked. That is about as helpful a witness as a cross examiner can have at trial.
[77] The plaintiffs submit that suspicious circumstances give rise to a presumption of undue influence for inter vivos gift challenges: Taylor-Reid v Taylor, 2016 ONSC 4751 at para. 85 and that there are a number of suspicious circumstances in this case.
[78] By way of example, the plaintiffs suggest that the withdrawal of the $700,000 was suspicious because a record of a medical examination of George that took place on November 14, 2014, two days after the bank draft was issued, noted that he could only walk 5 to 10 minutes without feeling exhausted. The plaintiffs use this to create suspicion about the circumstances of the withdrawal and suggest that it is Despina who withdrew the funds. Despina says she had no role in withdrawing the money. This is corroborated by a letter from RBC dated August 16, 2019 in which the bank states that although the two bank employees involved with the withdrawal have no recollection of it, normal bank practice is to identify the account holder with photo identification, match the client signature on the draft with the client signature on file and require the customer to enter his or her personal identification number. That practice would make it impossible for Despina to withdraw the funds.
[79] To the extent that the plaintiffs submit that Despina somehow hid information about George from them, it was Despina who reached out to ensure that the Saccals were made aware of George’s state of health when he was close to death even though they had not seen him for 20 years. Even that the plaintiffs describe as suspicious in their factum because: “the Defendant did not summons the Saccals until such time when the Deceased could no longer speak.” There is nothing suspicious about that. George told Despina that he did not want to see his daughters. There is nothing suspicious about Despina respecting that wish. However, when George lost consciousness and was about to die there was equally nothing suspicious about Despina letting his daughters know about his state and letting them decide whether they wanted to see their father before he died.
[80] A similar example of the plaintiffs’ suspicions is found in paragraph 20 of their factum where they state:
“What is most suspicious about this transaction is that the Defendant alleges that there was no gift ceremony, no documentation created about what she alleges was a gift, and that she did not tell a single soul in the world about this monstrous gift that she allegedly received. She did not tell her closest friends or her children. And she certainly did not disclose this to the daughters of the Deceased even though the Deceased had told her that he wanted to leave money for his grandchildren.”
[81] I do not accept that these circumstances create any grounds for suspicion. I am not sure what the plaintiffs mean when they refer to the absence of a “gift ceremony” but it would not be unusual for people to have been in a romantic relationship for 20 years and who are living together to give even large sums of money to each other without a “ceremony”. While it might be advisable to document something as a gift, it is not suspicious for romantic partners to give each other gifts without documentation. Indeed, many might say it would be unusual for romantic partners to document gifts as such. For Despina not to tell others is also not suspicious. The idea of wanting to maintain strict confidentiality about one’s assets and how one acquired them is not suspicious in Canadian (and many other) cultures. Many might say that is the norm.
[82] The Saccals have introduced no evidence, let alone evidence that is corroborated, to support their theory that Despina either withdrew the money herself or that she received it subject to a trust. Instead, the Saccals have raised a number of factors they say are “suspicious”. Suspicion does not, however, amount to evidence. The plaintiffs have had ample time to convert their suspicions into evidence but have failed to do so.
[83] The plaintiffs cite two cases which they say have close parallels to the case at bar and stand for the proposition that Despina has not met the onus on her. In my view, both are distinguishable.
[84] In Colangelo v. Amore, 2010, ONSC 5657, Mr. Colangelo transferred $16,000 to Ms. Amore in the course of an on-and-off boyfriend-girlfriend relationship. Mr. Colangelo was of the view that the transfer was a loan and, when the relationship ended, asked for repayment. Ms. Amore was of the view that the funds were a gift. The court found the transfer was a loan. In Colangelo, however, there was no cohabitation, no discussion of marriage, Ms. Amore needed money because she was unemployed and Ms. Amore’s description of the circumstances surrounding the transfer did not involve language that established a gift.
[85] In Kudlaciak v. Trela (1976), 1975 CanLII 554 (ON SC), 11 OR (2d) 330 (ONSC) the court concluded that a transfer of funds from a tenant to a landlord was subject to a trust and was not a gift. The Saccals submit that this case is relevant here because George rented premises from Despina before moving in with her. In Kudlaciak, however, the recipient landlord had prepared accounts which showed what he had done with the deceased’s funds, presented those accounts to the deceased to let him know that he was not “fooling around with his money” and had prepared income tax returns for the deceased in which he recorded interest received on the funds as income received by the deceased. In those circumstances the recipient of the funds himself treated the funds as beneficially owned by the deceased.
V. Is Summary Judgment Appropriate?
[86] The test for summary judgment is not in dispute.
[87] The court must first determine whether there is a genuine issue requiring a trial based on the evidence filed without using the fact-finding powers prescribed by Rule 20. This occurs when the judge can make the necessary findings of fact and the judge can apply the law to the facts: Hryniak v. Mauldin, 2014, SCC 7, at paras. 49, 66.
[88] The evidence must be such that the judge is confident that he or she can fairly resolve the dispute: Hryniak v. Mauldin, 2014, SCC 7, at paras. 50 and 57.
[89] I am confident that I can fairly resolve the dispute without recourse to the fact-finding powers under Rule 20 and that a trial is not required.
[90] As noted earlier, the action is statute barred and should be dismissed for that reason alone.
[91] If I am wrong in that analysis, the action should also be dismissed on the merits because it does not require a trial to resolve.
[92] The plaintiffs have raised a number of suspicions. They are not suspicions raised by facts which do not logically connect but are suspicions created by bald assertion.
[93] The plaintiffs raise a number of issues about Despina’s credibility that they say require a trial. At the time of the motion, however, Despina was in the last stages of her life. She died within a week of the motion. In those circumstances, a trial will not assist in assessing Despina’s credibility. I have viewed Despina’s examination on video and am able to form as good an impression of her credibility as would a trial judge.
[94] The plaintiffs say a number of additional witnesses are necessary for trial. As noted earlier, those witnesses would not appear to add anything to the analysis. To the extent they might add anything, the plaintiffs had ample time to summons them to an examination out of court but failed to do so until the very last minute.
[95] The plaintiffs submit that they have had inquiries from Canada Revenue Agency and that they are personally liable for taxes owing by George. The plaintiffs have not directed me to any provision of the Income Tax Act to support this submission. While I accept that CRA could hold the plaintiffs liable for distributions they make from the estate that render the estate unable to pay its tax liabilities, I am not prepared to accept, without clear authority, that CRA could hold the Saccals personally liable for money that George transferred while he was alive and while he was completely estranged from the Saccals.
[96] As a result of the foregoing I dismiss the action with costs in favour of the defendant. If the parties cannot agree on costs, the defendant shall have 20 days from the release of these reasons to deliver cost submissions. The plaintiffs will have 10 days to respond. The defendant will have 5 days to reply.
Koehnen J.
Released: November 13, 2019
COURT FILE NO.: CV-17-589284
DATE: 20191113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF GEORGE PAUL ZACHARIADIS, DECEASED, by his Estate Trustees, ALESSANDRA SACCAL and ROMINA SACCAL
Plaintiffs
– and –
DESPINA GIANNOPOULOS also known as DESPINA GIANNOPPOULOS also known as DEBBIE GIANNOPOULOS also known as DEBBIE GIANNOPPOULOS, DR. ARIS GIANNOPOULOS, JOHN DOE, JANE DOE and DOE CORPORATION
Defendants
REASONS FOR JUDGMENT
Koehnen J.
Released: November 13, 2019
[^1]: For ease of reference I will refer to the parties by their first names, as their counsel did on the motion and in their factums. I mean no disrespect by doing so.